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Lord Campbell of Alloway: My Lords, I support the amendment for all the reasons given by the noble Baroness, Lady Mallalieu. However, there is another aspect, upon which she touched. I had a client not long ago who threw her child off a bridge into the Thames. She was charged with murder. Her defence was insanity, which the jury at the Old Bailey accepted. How could she make a defence statement?

Viscount Colville of Culross: My Lords, perhaps I may put the matter into the framework of the practicalities. The noble Baroness who will reply might like to give a little guidance to the House as to how the provision will work.

It appears to me that the situation as proposed in the amendment before us in the name of the noble Baroness, Lady Mallalieu, and the noble Lord, Lord Harris of Greenwich, will happen anyway. At present when cases are committed in the Crown Court--they will be transferred when the arrangements are made--a date is given for a plea in directions hearings six weeks later. The objective of the exercise is that the judiciary should have hands-on handling of these cases--as has been suggested by the noble and learned Lord, Lord Woolf, on the civil side--to try to get the cases to trial quickly. I am sure that the noble Viscount, Lord Runciman, agrees that that is desirable in the criminal field too.

If the plea in directions hearing is reached, and Clause 5(3) has not been complied with, what will happen in practice? The judge will have the case called on. It will be abundantly plain that there is not a defence statement. After a little discussion between parties, it will also become clear that the prosecution knows perfectly well what the defence is in the sort of case to which the noble Baroness referred. Will the judge then be debarred from giving the listing officer an opportunity to provide a date merely because there is no defence statement?

Let us suppose that the judge does not require a defence statement to be given. Will that matter be judicially reviewable? It seems to me that that will be a sledgehammer to crack a nut. In practice the judge carrying out the plea in directions hearing will say, effectively, that the matter is ready for trial.

I appreciate what the noble Baroness says. It may be easier to put the provision in the Bill. I am a little concerned that there may be some risk if one does not have a little relaxation in the terminology on the face of the statute. But in practice I believe that it will happen anyway.

Lord Williams of Mostyn: My Lords, it is an important amendment and, not for the first time if I may say so, the House should be extremely grateful for the informed view of the noble Baroness, Lady Mallalieu.

If we step back from the particular problem and inquire how the criminal justice system works, it can only work efficiently and effectively in this country if

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one gives informed discretion to the judge either of trial or of the preparatory hearing. He is given no informed opportunity to exercise his discretion as the Bill now stands. The amendment is a workmanlike amendment which gives the judge a sensible discretion to be exercised judicially.

The problem of the unrepresented defendant has been mentioned already. However, those defendants fall into two categories: those who have never been represented; and those who become unrepresented at a late stage, sometimes for good reasons and sometimes for underhand and devious ones. The illiterate defendant, the defendant of modest intelligence, will not be able to cope with that obligation.

Perhaps I may deal with one matter which has not so far been referred to. The defence statement in Clause 5(5) deals with and contemplates the service of an alibi statement. It requires the furnishing of particulars of names and addresses of witnesses. It is notorious these days that witnesses are frequently intimidated. Why, in an appropriate case, if the judge is sensibly satisfied that a defence statement is simply not appropriate should he not be able to say so at the earliest possible stage? If we are to rely on the preparatory hearing as a device of some degree of practical utility, why cannot the judge waive the requirement if he thinks it appropriate to do so?

If I may say so without being unduly harsh, and as is suggested in the letter I received this afternoon dated 31st January, it is idle to suggest that in due time, at some further point in the distant future, a judge may well direct a jury not to draw adverse inferences. Surely the defendant, whether represented or not, wants a degree of certainty about the stance which he may legitimately adopt. If at an early stage the judge directs that the defence statement is not required or necessary in the interests of justice, why on earth should not the judge have that judicial power so to direct and determine?

Viscount Bledisloe: My Lords, it is plain from what has been said that there will be cases where the defence cannot comply, or cannot reasonably be expected to comply, with the requirement. However, the court has no power to dispense with it. All that is proposed is that at trial the judge can say to the jury or the magistrate can direct himself, "I am not going to draw an unfavourable inference" or "You, the jury, should not draw an unfavourable inference from that because this defendant could not be expected to do it."

Two things flow from that. Why on earth should the unfortunate defendant be left in a situation of hoping that the judge will be able to say that? Secondly, do the Government really want a situation where judges say to juries, "Members of the jury, this defendant is in default because he did not give a defence statement. It was totally ridiculous to expect him to do so, but under this silly Act I have in front of me I couldn't dispense with it. I had to tell him that he had to do it. But I now tell you that you are not to draw any inference because it

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was ridiculous to expect it." Do the Government really want their legislation described in such terms to juries in courts?

Viscount Runciman of Doxford: My Lords, I too support the amendment. I have not been privy to the letter which some Members received at a late stage this afternoon. From what I gather I perceive that it may well be the Government's concern--a reasonable one in principle--that to accept the amendment might lead to unnecessary delay or expense at some stage of the procedure leading up to trial. But, as others have said, it is a purely practical matter. I cannot for the life of me see that in this case there is such a risk. I do not understand how, if the amendment were accepted, the new regime could be exploited by an unscrupulous defence, to the disadvantage of the interests of justice.

As has also been said and as was very much a theme of the Royal Commission report, we assume that judges could and should take a more hands-on view of the conduct of cases than has perhaps happened in the past. Then the tradition of not descending into the arena was part of the judicial sub-culture, if I may put it that way.

However, we have only to envisage the kind of situation, of which examples have been given by practitioners, to appreciate that it will only be a small minority of cases. In that minority it will be obvious to prosecution, defence and court alike that the court will have no possible incentive to dispense with the defence statement unless the case for dispensing with it is obvious. It would fetter the judge by requiring him, as the noble Viscount, Lord Bledisloe, said, to say nothing at the preliminary stage where an intervention from the court would be most efficacious, only to rubbish the Act at the end of the procedure to ensure that the jury did not do the wrong thing. For the life of me, I cannot see why the Government should object to the amendment.

6.15 p.m.

Baroness Blatch: My Lords, perhaps I may say at the outset that I offer my profuse apologies to the noble Baroness, Lady Mallalieu. I regard it as a serious discourtesy that a letter was received by other people which was addressed to her personally. Secondly, it was my intention when I signed it that it should be, as it was, sent by hand yesterday morning, not only to the noble Baroness but to all other recipients. Why it did not arrive I do not know; I shall make it my business to find out. I apologise to all concerned, but particularly to the noble Baroness. She has had the embarrassment of knowing that other people sitting in the Chamber had the letter I addressed to her.

The amendment would provide that the accused did not need to give a defence statement if the court believed that it was not in the interests of justice for him or her to do so. We debated this amendment in Committee. I have reflected on the points made but I am afraid that I still see some drawbacks with the proposal.

First, there are good reasons for requiring defence disclosure and secondary prosecution disclosure as well as primary prosecution disclosure in Crown Court cases. It is meant to ensure so far as possible that the issues in dispute are narrowed and identified before the trial starts

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so that the trial itself may be conducted more efficiently. Also, if the accused does not disclose his defence in a defence statement, it will not be possible for the prosecutor to assess whether he has any additional undisclosed material which might assist that defence. The advantages of formalising the defence in a defence statement apply across the range of Crown Court cases.

Secondly, the amendment removes one set of procedural requirements only to create another. It would be necessary to devise a procedure for applications to a court for an exemption and for the consideration of the application by the court to take place at some point after primary prosecution disclosure. To enable the court to form a view on whether it was in the interests of justice to require a defence statement, the accused would need to set out the circumstances of the case in sufficient detail and the prosecutor would have to be able to make representations about the application. Disputes would need to be resolved at a hearing. It would add to court business as a whole and slow down the delivery of justice.

In the cases where the noble Baroness thinks an exemption might be justified it would be simpler for the accused simply not to make a defence statement at all. The only direct sanction for such failure is that it would be open to the prosecutor to seek leave to comment on this at trial under Clause 10. But Clause 10(3) provides that the court or jury may draw such inferences as appear proper in deciding whether the accused is guilty. If there is a good reason for the failure to provide a defence statement--and I have heard some good reasons during the course of discussions on the amendment--the court would decide that the only proper inference to be drawn is that the accused was justified in not providing a defence statement. It will depend on the circumstances of the case to make that judgment.

In Committee, the noble Lord, Lord Harris of Greenwich, asked--he reminded us of it today--who would draw the attention of the accused to the requirement to produce a defence statement if he were unrepresented and tell him what his responsibilities were. We are currently considering various options for doing that, such as setting out the requirements imposed by the Bill in the covering letter which the prosecution will send when it makes primary prosecution disclosure or by way of a notice from the court when proceedings are transferred for trial. If the accused were unrepresented, the information would be served on him personally. We agree that the accused must not be put in the position of not producing a defence statement simply because no one told him that he had to produce one.

The noble Lord, Lord Harris, asked who would tell a semi-illiterate defendant what he must do to comply with the Bill. First, I cannot say exactly who, in prison, for example, would tell a prisoner what he must do to comply. It is a practical and detailed point which is important. Before the proposals are implemented, we shall address the particular point. I repeat that we are anxious to ensure that the accused knows what the responsibilities are and what is expected of him.

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