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Baroness Blatch: My Lords, the noble Lord explained his concern that the test for primary prosecution disclosure may be too restrictive. I hope to be able to convince him, and my noble friend Lord Renton, and to be able to allay their concerns.

The Government have given considerable thought to the test for primary prosecution disclosure. We want to ensure that the prosecutor discloses at the first stage material which, generally speaking, has an adverse effect on the strength of the prosecution case.

Let me give two examples of the kind of material we have in mind. The first is a witness statement containing a description of the alleged offender which is different from the description of the accused. The second is a psychiatric report showing that the main prosecution witness has a history of psychiatric disorder with a tendency to fantasize. In both cases the material should as a matter of principle and of law be disclosed to the accused.

The test of "undermine the prosecution case" is wide enough to require the disclosure of material such as I have described. It is the test which we used in the

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consultation paper on disclosure which we issued last May. A wide range of organisations responded to the consultation paper and none of them suggested replacing "undermine" with an alternative such as "cast doubt upon".

The noble Lord is concerned that the test of "undermine the prosecution case" could be interpreted in a restrictive way so that all that had to be disclosed was material which removed the foundations of the prosecution case. But the test extends to any material which might undermine the prosecution case. It is not confined to material raising a fundamental question about the prosecution. In that event, it surely is unlikely that the prosecutor would proceed with the case. Guilt must be proved beyond reasonable doubt, and, as the Code for Crown Prosecutors makes clear, the prosecutor may not bring proceedings unless there is a realistic prospect of conviction. The disclosure scheme is aimed at undisclosed material which might help the accused, notwithstanding that there is enough evidence to provide a realistic prospect of conviction.

I turn now to the alternative formulation suggested by the noble Lord. It, too, would require the disclosure of the kind of material I have described. But it would go further than that. It could, for example, cover material which slightly weakened a peripheral aspect of the prosecution case without having any real effect on it. Such a test would be rather closer to the existing test for prosecution disclosure, which, as I have explained in previous proceedings on the Bill, does not focus on the real issues in dispute in the case; and which, as has been widely recognised, creates great difficulties in practice. In the light of my response, I hope that the amendment will not be pressed.

Lord Renton: My Lords, before my noble friend sits down, I wonder whether I have understood her properly. I understand her argument to be that when the word "undermine" is used, it in no way interferes with the burden of proof on the prosecution to prove the case against the accused beyond reasonable doubt.

Baroness Blatch: My Lords, I can give my noble friend an absolute assurance on that point.

Lord McIntosh of Haringey: My Lords, I am relieved that, having undergone the scrutiny of officials in the Home Office, my amendment means what I intended it to mean, which is, indeed, to widen the basis upon which material should be released to the defence. I am so often told by lawyers that because of my ignorance of the details of these matters the things I suggest would not in fact have the effect that I intended. I still find it strange--and I am glad to have the noble Lord, Lord Renton, with me--that we should use such a term as "undermine", which is an engineering term--to be precise, it is a military engineering term, is it not?--in legislation of this kind.

We are talking about casting doubt on the prosecution case. My wording avoids the trap of metaphor and the trap into which the Government have fallen by their desire to select more rigidly the information which has to be disclosed. But I recognise that we are in danger of arguing about how many angels could dance on the head

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of a pin. I am afraid that unless the wording in the Bill is changed, it will lead to some of the miscarriages of justice which the setting up of the Royal Commission was intended to avoid. I believe that the balance of the Bill as drafted is tilted in the wrong direction. However, I do not believe that the difference between us is so great that I would be justified in seeking the opinion of the House. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 [Primary disclosure by prosecutor]:

Lord Williams of Mostyn moved Amendment No. 2:

Page 2, line 27, after ("prosecutor's") insert ("reasonable").

The noble Lord said: My Lords, when this minor amendment was tabled on the previous occasion there was a significant amount of discussion. Clause 3 lays upon the prosecutor the duty and the burden of disclosing to the accused any prosecution material which has not previously been disclosed and which, in the prosecutor's opinion, might undermine the case for the prosecution.

When the matter was before the House on the previous occasion a number of your Lordships supported our case that this was an improvement. The context in which we discussed the matter was that many recent miscarriages of justice have arisen, as the Government well recognise in the scheme of their Bill, by virtue of non-disclosure. The criticism mounted against the present draft was that the prosecutor's opinion is left as being subjective and not subject to the objective test as to whether the prosecutor's opinion was reasonable.

On the previous occasion I was fortified by support from the noble Lords, Lord Renton and Lord Campbell of Alloway, the noble Viscount, Lord Bledisloe, and, not least, from the noble Viscount, Lord Runciman, whose commission did such sterling work in dealing with the problems. On that occasion I heard nothing convincing, or reasonably convincing, as to why the amendment was not properly seen as an improvement. I ask the Government, they having reflected in the meantime, to accept the amendment as an improvement to the present draft form. I beg to move.

Lord Ackner: My Lords, I support the amendment. I am surprised that two words have been used which are, or should be, unnecessary. The sentence should read:

    "which might undermine the case".
The phrase "prosecutor's opinion" is surplusage because the test, if it is sound, is bound to be objective. Therefore, it needs no reference to the prosecutor.

However, since the draftsman has sought to include "prosecutor" his opinion must be characterised by "reasonable", otherwise it is subjective and one will have the answer made for non-disclosure, "I honestly believed that this would not undermine", even though it is apparent to any reasonable person that it would. If the draftsman insists that "prosecutor" should be included, the opinion of the prosecutor must be characterised by the word "reasonable".

Lord Renton: My Lords, with respect to the noble and learned Lord, whose case I well understand because

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he put it so clearly, I should have thought that the view he expressed would be better met if the words "in the prosecutor's opinion" were left out rather than adding the word "reasonable".

Lord Ackner: My Lords, I believe that it is my fault for not being as clear as my noble friend suggested. I wanted those words left out but if they are included the qualification "reasonable" must accompany "the prosecutor's opinion".

Lord Boyd-Carpenter: My Lords, I support those who criticise the clause as it stands. Although other amendments might be better, given that we are at Third Reading I offer my support of the amendment now in front of us. I hope that my noble friend the Minister will be prepared to accept it.

Lord Carlisle of Bucklow: My Lords, although I have not taken part in or been present during earlier stages of the Bill, perhaps I may support what was said by the noble and learned Lord, Lord Ackner, and the noble Lord, Lord Williams. Clearly, if one is to have a test it should be objective rather than subjective. While I totally agree that the number of papers now being required to be disclosed by the prosecution have become totally unreasonable, we must be careful that in bringing in this legislation we do not tilt the balance too far the other way.

Baroness Blatch: My Lords, as the noble Lord explained, the House debated similar amendments in Committee and on Report. As my noble friend Lord Boyd-Carpenter suggested, this is not the stage to be considering on the Floor of the House alternatives to the present amendment.

I have reflected on the points which were made in those debates. I have to say that I still take the view that Clause 3 should remain as it is. As I have previously explained, the Bill clearly places the prosecutor under certain duties of disclosure. In discharging those duties the prosecutor will have to bear in mind his duty to secure a fair trial. Prosecuting counsel, for example, are bound by the Bar's code of conduct which sets out that:

    "Prosecuting counsel should not attempt to obtain a conviction by all means at his command. He should not regard himself as appearing for a party. He should lay before the court fairly and impartially the whole of the facts which comprise the case for the prosecution and should assist the court on all matters of law applicable to the case."
The code for Crown prosecutors provides that:

    "Fair and effective prosecution is essential to the maintenance of law and order".
And also:

    "The duty of the CPS is to make sure ... that all relevant facts are given to the court ... Court Prosecutors must be fair."
In considering what material is required to be disclosed to the accused the prosecutor will bring his best judgment to bear and, as I said, he will have to keep in mind these duties.

The amendment would require him to consider what a prosecutor's reasonable opinion might be and not just, as the Bill does now, what is his opinion. But, again as

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I have explained, the prosecutor will surely assume that his opinion is a reasonable opinion. I do not see how he could think otherwise, particularly since he is acting in a professional capacity and discharging duties prescribed by statute. I do not think that in practice, therefore, the amendments would achieve any improvement in the way the disclosure regime operates.

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