Previous Section Back to Table of Contents Lords Hansard Home Page


Lord Renton: My Lords, I wonder whether it has occurred to the noble Lord, Lord McIntosh of Haringey, that as Amendment No. 22 commences with the word "and" what follow are words of limitation; that is to say, they will limit the prosecution's obligation. Subsection (2), which is very clear, fastens upon the prosecutor a precise obligation:


It is significant that Amendment No. 23, which the noble Lord suggests should be considered with Amendment No. 22, commences with the word "or", so there is no limitation there. If in Amendment No. 22 the

1 Feb 1996 : Column 1603

word "and" were replaced by the word "or", the rest of that amendment would not be words of limitation but would enlarge the opportunities of the defence. Therefore, starting as it does with the word "and", I believe this amendment to be self-defeating. The question is whether, assuming that "or" were put in instead of "and", it would be really necessary.

The situation that is envisaged in subsection (2)(a) of Clause 7 is one that arises when the prosecutor has founded his position on material that has not previously been disclosed to the accused and which may reasonably be expected to assist the defence. That is a worthy object, but I am not sure that it is necessary, even if the word "or" is used instead of the word "and", to elaborate it in the way that the amendment seeks to do. I shall be interested to hear what my noble friend on the Front Bench has to say about it. However, I doubt whether, even if they were not words of limitation, they would carry the matter much further in favour of the defence.

Baroness Blatch: My Lords, this is the first amendment on the Bill in which my noble friend Lord Renton has intervened and in which I have been personally involved. It gives me the opportunity on behalf of the whole House to say how marvellous it is to see the noble Lord back in his place and taking part in our deliberations. I know that had he been fit and well he would have been pretty active in the Bill at an earlier stage.

The first amendment seeks to widen the test for prosecution disclosure. It seeks to expand Clause 7(2)(a) by adding a new category of material which the prosecutor is required to disclose; namely, that which can be seen on a sensible appraisal by the prosecution to be relevant, or possibly relevant, to an issue in the case, or which raises, or possibly raises, a new issue whose existence is not apparent from the evidence that the prosecution intends to use, or which holds out a real, as opposed to a fanciful, prospect of providing a lead on evidence which goes to a relevant or new issue.

The second amendment has the same effect as the first in relation to the description of prosecution material which the accused may apply to have disclosed under Clause 8 after secondary prosecution disclosure. The third amendment, in a similar vein, considerably widens the test for prosecution disclosure in Clause 9 under the continuing duty to disclose. If that is the intention, I must say that I do not agree with it. The test of relevance to an issue in the case is considerably wider than the tests for prosecution disclosure currently in the Bill. The prosecutor would be required to disclose considerably more material than the Bill required.

In effect, the new test is the same as the current test for prosecution disclosure, as set out by the Court of Appeal in the 1994 case of R v. Keane. It requires the prosector to disclose in effect all material relevant to an issue in the case, whether or not it has any bearing on the defence chosen by the accused. That imposes heavy burdens on the police and prosecution relating to the disclosure of material which may be completely irrelevant to the actual defence. It goes to the heart of the Bill and flies in the face of what this Bill is all about.

1 Feb 1996 : Column 1604

In response to the intervention by my noble friend Lord Renton, I feel that he is absolutely right. At Committee stage I said, in response to the amendment, that as it was drafted:


    "the prosecutor is not required to disclose material unless it satisfies all three elements. This is because the amendment is introduced with the word 'and' rather than 'or'. Because the existing test in (ii) is more restrictive than the new test in (iii), material which may be relevant but which does not assist the defence will not need to be disclosed. The same is true of Amendment No. 36"--
That was my reference to the number of the amendment in the Bill at that time--


    "in relation to the description of prosecution material which the accused may apply to have disclosed".--[Official Report, 18/12/95; col. 1482.]

I am grateful to my noble friend for his intervention. In the light of that explanation, I hope that the amendment will not be pressed.

Lord McIntosh of Haringey: My Lords, all I can say to the Minister and the noble Lord, Lord Renton, so far as the "and/or" issue is concerned is, "It's a fair cop, guv!" Not only am I guilty in not having noticed it today but I am guilty in not having properly read the Minister's speech at Committee in which she pointed out the defect that I have now repeated. That is a pretty poor record in three amendments.

But the issue itself will not go away. I am not ashamed of having brought it forward again. In essence, the argument boils down to the fact that the Government know perfectly well what the Royal Commission recommended and know perfectly well what the Lord Chief Justice said in R v. Keane; but, for reasons of economy and of trying to cut down the workload of the prosecution, they are prepared to tighten the restriction and limit the obligations on the prosecution to make secondary disclosures to the defence after the first disclosure has been made.

That is an administrative approach to justice which I find wholly deplorable. I do not even believe that it will save money. It may lead to less effective trials, more appeals and more public expenditure in the long run. The object of this disclosure procedure, the whole of it in Part I, should be that we arrive at the trial with no possibility of misunderstanding and no possibility of ambush defence or ambush prosecution; and we arrive at the trial able to give a jury or magistrates the opportunity to come to a conclusion without being confused by issues of law which could have been resolved before the matter came to court or by issues on the admissibility of evidence or indeed on the nature of the evidence. The trial is the occasion on which such matters are put before the magistrates, a judge or a jury and if it is done so inadequately because disclosure has been inadequate, the trial will be the worse.

I am sorry to have had to say that. I am not opposed in any way to trying to limit public expenditure. But I simply do not believe that the Bill as drafted will produce that result. Having said that, in view of the time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 [Application by accused for disclosure]:

[Amendment No. 23 not moved.]

1 Feb 1996 : Column 1605

6.45 p.m.

Lord McIntosh of Haringey moved Amendment No. 24:


Page 5, line 20, leave out second ("the") and insert ("any").

The noble Lord said: My Lords, in moving this amendment, I should like to speak also to Amendments Nos. 25, 28 and 29. I have, perhaps wrongly, already referred to the subject matter of those amendments in discussion on previous amendments. Again, this amendment is part of the argument that what comes before the court should be the best possible case to enable the court to reach a just conclusion, convicting the guilty and not convicting the innocent. These amendments seek to ensure that there is the possibility of subsequent defence statements which would in turn trigger secondary disclosure by the prosecution.

The object is not at all to enable the defence to wriggle around and provide many alternative defences. If it were trying to do that in order to obtain more information from the prosecution, it would very rapidly become evident. The attempt to do so by defence statements would be discredited and a judge could be asked to rule on the matter. Surely, there must be a possibility, because there is secondary disclosure, that the secondary disclosure by the prosecution will in turn lead the defence quite properly to think of arguments which had not otherwise been put and to make perfectly proper changes to the nature of the defence.

In the same terms and in the same spirit in which I moved the previous amendments, I beg to move.

Lord Mackay of Drumadoon: My Lords, as your Lordships will appreciate, these amendments to Clauses 8 and 9 remove a specific reference to the defence statement given under Clauses 5 or 6 and replace it with a reference to any defence statement given to the prosecutor. The effect would be that the prosecutor would be under a duty to disclose material which might reasonably be expected to assist the defence in any defence statement, whenever produced, and that duty, which would keep on recurring as new defence statements were produced, would continue until the end of the trial.

When considering the effect of the proposed amendments, it is important for your Lordships to bear in mind the provisions of Clause 9(2), which place upon the prosecutor a duty to keep under review the question whether at any given time there is prosecuting material which might undermine his case. That is a duty which goes right through until the accused is acquitted or convicted or the prosecutor decides not to proceed with the case.

In my submission, those effects would have very undesirable consequences. They would encourage accused persons to structure their original defence statement in not so full a manner as they might otherwise do. If they had a right to come forward with a second or third defence statement, they would, so to speak, test the water by putting in a defence statement and seeing what secondary prosecution disclosure evidence that produced. They might then decide to amend their original defence in a subsequent statement

1 Feb 1996 : Column 1606

or indeed decide to put forward a completely different defence with an inconsistent effect. It is certainly true, as Clause 10 makes clear, that such a change of tack might be open to be commented upon. Nevertheless, that process would continue, with a consequent burden on the prosecution, but, more importantly, a consequent delay in getting the trial under way.

Importance is placed upon, and reference made to, the continuing obligations under Clause 9, both in relation to the validity of the prosecution case and, under Clause 9(5), the duty to keep the defence case under review to see whether any further material requires to be disclosed. However, in my view it is unnecessary for the amendments to be tabled. The objective may be understandable and, to some extent, commendable; but the effects are undesirable. For those reasons, I hope that the noble Lord will not press the amendment.


Next Section Back to Table of Contents Lords Hansard Home Page