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Lord Harris of Greenwich: My Lords, perhaps I may ask the noble Baroness a question. As she realises,

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we shall probably return to this matter at Third Reading. I suspect so, although it is in the hands of the noble Baroness, Lady Mallalieu. I urge the Minister to be in a position then to answer these questions. A number of us will be very concerned if the Government are not in a position to answer them when we return to the matter in two or three weeks' time.

Baroness Blatch: My Lords, I shall certainly bring as much information as I have available to me to bear on our proceedings at Third Reading. Noble Lords need to consider how this amendment would work without the procedures I spelt out that would need to be put in place in order for an application to be made not to make a defence statement. Without such further procedures, how do they see the amendment working?

The noble Viscount, Lord Colville, is right: the absence of a defence statement will not prevent a case from being listed before a hearing. The noble Lord, Lord Williams of Mostyn, referred to alibi defences. The provision in the Bill builds on a long-standing requirement that serves a useful purpose in enabling the prosecution to verify an alibi before a trial.

Lord Williams of Mostyn: My Lords, I wonder whether the Minister can help me. She dealt with the present regime of alibi statements. Is she aware that at the moment the judge has discretion to waive that requirement? If that is so and it works well, as the Minister just indicated, why is it not appropriate in the form and spirit of this amendment?

Baroness Blatch: My Lords, the words of the amendment refer to waiving a defence statement. It is a question of the process by which that is arrived at--whether a statement is simply not made and inferences are allowed to be drawn from that or whether there is a formal application not to make a statement in which case a whole raft of procedures would need to be put in place in order to consider that. There might need to be an extra hearing. What pleases me is that there is no disagreement about the ends that we wish to have served. We are mainly talking about means to an end, and whether a statement is simply not made and the judge and/or the prosecution is allowed to ascertain during the course of the trial why a defence statement was not made.

The noble Viscount, Lord Colville of Culross, argued in a previous discussion that if the accused was unfit to plead there would be no point in the defence trying to produce a defence statement. The noble Lord, Lord Williams of Mostyn, and, I believe, the noble Viscount, Lord Bledisloe, commented separately on the inability of the judge to waive the requirement to produce a defence statement. As I have just explained, it is open to the accused not to produce a defence statement at all and to rely on the court not to allow an improper inference to be drawn.

The purpose of a defence statement is to trigger secondary disclosure. Where there is no defence statement, that would not be triggered and the case could proceed to trial. To return to my earlier point, there is a great deal that brings us all together on this issue. But

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it is a question of means to an end. I ask the noble Baroness who moved the amendment to consider in her reply the particular process that would need to be in place if the amendment were followed--rather than following my suggestion of simply allowing the defendant not to make a statement and for inferences to be drawn from that--and to make sure, in the cases cited by my noble friend Lord Campbell of Alloway, the noble Baroness and others, that improper inferences were not drawn in those cases.

Baroness Mallalieu: My Lords, first, I accept the apology of the noble Baroness. It is unfortunate that the letter arrived elsewhere, and not with me, but I have now had an opportunity to see it. I am very much indebted to those who spoke, on every side of the House, who have a wealth of experience in relation to this aspect of criminal procedure. The noble Baroness cannot have failed to notice that she had little support for the apparent refusal of the Government at the moment to consider an amendment along these lines.

I am anxious, particularly in view of her reply to the noble Lord, Lord Harris of Greenwich--namely that the Government are looking in particular at ways of dealing with unrepresented defendants--that nothing I say now should press the Government into an entrenched position in relation to the amendment I proposed. I hope very much that, notwithstanding what the Minister just said, and notwithstanding what she wrote, she and those who advise her will go away and further consider the position.

I entirely accept what the noble Baroness said; namely, that the aim of all who spoke is to improve the legislation, to provide a practical working tool for those in the court and to enable the interests of justice to be best served. I do not think that the Minister is correct about the proposed amendment. She says that it would be necessary to devise some procedure to deal with it. That procedure is in force now in every single criminal trial. It is open at any stage before a trial for either party, or both parties, to arrange for the matter to be listed before the trial judge as an application in which both appear and both deal with the matter in hand. It may be a matter of law; it may be a matter of an alteration of bail; it may have something to do with the procedural progress of the case. That happens today; the procedure is there.

I stress that the proposal would relate to very few of the criminal cases coming before the court. In many of the cases I have in mind it would be apparent to all concerned that no purpose would be served by such a statement, and in such a case the matter could be dealt with very quickly in the usual way, as, in interlocutory matters, preliminary applications are now dealt with. It is not a question of having to devise any procedure for dealing with the consequences of the amendment.

With respect, the alternative suggested by the Minister undermines the whole purpose of the Bill; namely, to seek clarity and certainty as to the issues and proceedings before the trial in so far as that is possible. If a defendant who, for good reason, cannot make a defence statement is not to know whether he is liable to be criticised, or not until a late stage in the trial--when

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an application may or may not be made by the prosecution to criticise him or to ask the jury to consider drawing adverse inferences--that is undesirable, especially when the matter could have been resolved before the trial began.

I am unhappy, as the noble Baroness will appreciate, with the way she felt compelled to answer. I do not propose to test the feeling of the House; I think the noble Baroness will already have experienced the feeling in the Chamber among those who know a considerable amount about this aspect of the law. In the light of her remarks to the noble Lord, Lord Harris, I hope that, in considering the question of the unrepresented defendant, she will also feel it right to consider the other aspect of the matter, and in particular the illiterate defendant who will not be helped by the suggestion she has so far made, and the case where for good reason, no defence statement can be made.

It cannot be right in matters of this sort, where, as now happens, the trial judge is being asked to give rulings at earlier stages on more and more aspects of a trial that he should be deprived of making a commonsense order in a case where that is clearly necessary to all. I beg leave to withdraw the amendment. I look forward to the next stage, and I hope for some communication with the noble Baroness in the interim.

Amendment, by leave, withdrawn.

[Amendment No. 20 not moved.]

Clause 6 [Voluntary disclosure by accused]:

[Amendment No. 21 not moved.]

Clause 7 [Secondary disclosure by prosecutor]:

Lord McIntosh of Haringey moved Amendment No. 22:


Page 4, line 36, at end insert ("and could be seen on a sensible appraisal by the prosecution to be relevant or possibly relevant to an issue in the case, or which raised or possibly raised a new issue whose existence was not apparent from the evidence the prosecution intended to use, or which held out a real, as opposed to fanciful, prospect of providing a lead on evidence which went to a relevant or new issue;").

The noble Lord said: My Lords, this amendment goes with Amendments Nos. 23 and 27; indeed they all contain the same words. Those words reflect both the view of the Royal Commission on Criminal Justice and the view of the Lord Chief Justice in R. v Keane. The amendments may not be couched in exactly the kind of wording that the parliamentary draftsman likes, but I thought it better to leave them in their pristine, original state rather than attempt to write them in parliamentary language. For example, I realise that the expression "sensible appraisal" is one that a judge may use whereas the law will probably use the word "reasonable". Still, I hope that their provenance speaks in their favour. Although these amendments were moved at Committee stage, the answers were thoroughly unsatisfactory and I thought it necessary to draw the attention of the House to them at this stage.

The Bill provides two gateways for the disclosure of material to the defence: first, material that undermines the prosecution case; and, secondly, material that the

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prosecution considers may assist the defence as disclosed in the initial statement of the defence. In discussion on previous amendments we on these Benches and other noble Lords have expressed the view that the balance between primary prosecution disclosure and defence disclosure is not right. On the basis of inadequate information about the prosecution the other side is required to make a full statement of the defence. It is on the basis of that case as stated by the defence that we now come to the secondary disclosure by the prosecution. We believe that the gateways for secondary disclosure are too narrow. For example, there may be material which is not directly related either to the prosecution case as prepared (though it may not necessarily have been disclosed) or to the defence statement as provided, but nevertheless it may be relevant to the defence. Indeed, in certain circumstances it may persuade the defence that it is right to plead guilty and save public money on a lengthy trial. We believe that not only is that view correct but that it is one shared by the Royal Commission and the Lord Chief Justice in the case that I have cited.

Once the defence has stated its case, particularly in the detail that is required, there is no reason why the defence should not have access to all relevant, or potentially relevant, material. If, as a result, a new defence is raised that, too, is in the interests of justice. There should not be just one opportunity for the defence to disclose its position; otherwise, it simply means that the defence will say something new at the trial which may or may not trigger an opinion from the judge to the jury about the significance of it. We believe that when the case comes to trial the position that has been provided for under the disclosure procedures, both prosecution and defence, should be the most up-to-date possible statement of the defence, and any changes should have triggered further prosecution disclosure.

I do not suggest that this will happen in more than just a small number of cases, and I do not believe that it needs to be an expensive or protracted procedure. But there are cases in which it will be necessary, and the criterion is whether the preparation for the trial in the form of defence and prosecution disclosures is accurate, up-to-date and sufficient to make possible a fair trial. To do that, we suggest that these further obligations on the prosecution are necessary and desirable. I beg to move.


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