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Lord Williams of Mostyn moved Amendment No. 6:


Page 4, line 4, at end insert ("unless in the opinion of the court it is not in the interests of justice for him to do so").

The noble Lord said: My Lords, the principle for which I contend as underlying the amendment is that for the efficient conduct of criminal trials it is essential that a discretion should be vested in the presiding judge to control the conduct of the trial. As noble Lords have seen, the amendment allows a presiding judge in a criminal case to dispense with the service of a defence

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statement if the court comes to the conclusion that it is not in the interests of justice for the defendant to be obliged to serve such a statement.

Clause 5 has the rubric: "Compulsory disclosure by accused". Subsection 5(3) provides that:


    "The accused must give a defence statement to the prosecutor".
He is obliged to do so. There is no discretion vested in the trial judge to waive that requirement. I suggest that that is a nonsense. It is far too strict a regime. It is inflexible and inefficient for the sensible conduct of many criminal cases.

What is proposed as a consequence of the amendment, if it were accepted, is that a waiver may be given in some circumstances. One can think of them quite easily from normal practice and I suggest that those who have been in practice will recognise them. First, there is the problem of the non-represented defendant, the illiterate defendant, the defendant who is barely competent. Then there is the question of intimidation of witnesses because the defence statement involves not simply a statement setting out the nature of the accused's defence, the matters on which he takes issue with the prosecution and the reason he takes issue with the prosecution, but also includes an alibi defence which must give particulars of witnesses.

There are often cases when prosecutor and defence counsel agree that a defence statement adds nothing to the efficiency and sense of criminal proceedings. In many cases, a prosecutor might be disposed to agree with defence counsel: "We don't wish to have a statement in this case, it adds nothing. What is the point of that absurd inflexibility?" In those circumstances, we put the question: why does one need prescriptive rules without the discretion which ought to remain vested in the trial judge who presides? After all, at present he has a wide discretion. He can, and frequently does, waive the requirement on alibi. Under Section 78 of the Police and Criminal Evidence Act 1984 he is specifically empowered to exclude evidence which would otherwise be inadmissible if it had a disproportionately unfair effect on the conduct of the trial.

Therefore, the principle for which we contend is not new. It is the principle of utility in the conduct of criminal trials. There must be many cases which one can understand and envisage where one does not need the statement in that rigid form. The amendment simply gives authority to the court to waive the requirement. I can see no argument in principle against it or any intellectual basis for objecting to it. I beg to move.

Lord Carlisle of Bucklow: My Lords, I confess that I rise probably in ignorance. Do I understand from what the noble Lord, Lord Williams, said, that there will be a requirement in every case before a Crown Court for such a statement to be given?

Lord Williams of Mostyn: Yes, my Lords, because Clause 5(1) provides that the requirement clause applies by virtue of Clause 1(2), which relates to indictable offences that have been transferred for trial to the Crown

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Court and summary offences where they are tagged on. I need not trouble with that because it is a detail. Many cases are so simple that the statement is not required.

Lord Carlisle of Bucklow: My Lords, I am grateful for that explanation. If that is so, I wish to ask the Minister whether we are in danger of imposing in every case an additional stage which often may not be necessary? I reflect that, sitting as a recorder, many cases come before me where the issues are clear from the committal papers and statements made by the defendant.

It is true, as the noble Lord said, that from time to time a defendant appears who is unrepresented. However, even in cases where defendants are represented, I should be concerned if a blanket requirement to give a defence statement led to a matter having to be adjourned because such a statement had not been given when in the normal circumstances the case could take place immediately. If that is the effect of the clause, then some form of flexibility should be included.

What worries me more than anything else, when one sits as a recorder, is the number of cases which have to be adjourned for particular reasons. That greatly increases the expenditure and time taken on the cases. I hope that we shall not unintentionally be adding an extra stage when in many cases of a simpler nature it would be unnecessary.

Baroness Blatch: My Lords, first, I believe that the issue between us concerns the means to an end rather than the end itself. I say to my noble and learned friend--is he learned?

Lord Hailsham of Saint Marylebone: Fairly learned!

Baroness Blatch: I shall address the point which my noble friend made about the additional stage.

Lord Carlisle of Bucklow: My Lords, I am probably not "learned" after my intervention, although I might have been before I rose.

Baroness Blatch: My Lords, as I said at Report stage, 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, 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, as the noble Lord said.

I appreciate the point that was expressed in respect of the small number of defendants that may be disadvantaged by the Government's proposals.

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Although the amendment is intended for a small number of cases, it is of general application and, as such, it would be open to abuse by defendants generally.

I am grateful to the noble Baroness, Lady Mallalieu, for her courtesy in giving me notice that she intended to raise the matter again. Her colleague, the noble Lord, Lord Williams, was speaking for her as she is unable to be present today. In correspondence she suggested that a preliminary hearing would be the occasion on which the judge would be able to exercise a discretion to dispense with the requirement on the accused to provide a defence statement. In that way, it has been said that the amendment would not add an additional stage to the proceedings. However, I submit that the amendment removes one set of procedural requirements only to create another. It would still 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 that hearing.

I assume that the preliminary hearing to which the noble Baroness referred in correspondence would be the plea and directions hearing. The effect would be to move the plea and directions hearing away from its primary purpose of case management and into the realm of issue resolution: a function for which such hearings are not well suited. In that way, the amendment would add to court business as a whole and slow down the delivery of justice. In cases where the judge decided that the accused should provide a defence statement, the process of defence disclosure will have been delayed until after the plea and directions hearing, with the possibility of a further hearing being needed if disputes about the extent of disclosure arose subsequently.

In the cases where the noble Lord thinks an exemption might be justified, it would be simpler--and here I refer back to my statement about "means to an end"--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 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, the court will 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.

In respect of unrepresented defendants, I strongly agree that the accused must not be put in the position of not producing a defence statement simply because no-one told him he had to produce one. I can assure the House that we are considering the options for giving information to the accused in advance of the disclosure regime so that he is aware of its requirements. This is a matter which we are committed to resolving before the

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implementation of the scheme, although it is not, I submit, necessary to resolve it through the Bill itself. In a similar vein, we shall need to ensure that practitioners who will need to operate the new scheme are offered the necessary training.

Finally, if I may turn to one further point made on Report, it was suggested that the unnecessary additional costs would be incurred by the Legal Aid Fund should defence statements be required in relatively straightforward cases where the issues are clear. The waiving of the requirement for a defence case statement in such cases is unlikely to have any effect on legal aid costs. These cases, whether in the magistrates' court or the Crown Court, are likely to fall into the arrangements for standard fees and as such no savings would result. The issues would still have to be considered and the task of putting them into a defence statement is likely to be fairly simple. As I have said, I fear that the procedure for dispensing with a defence statement would add to court business as a whole and slow down the delivery of justice.

For the reasons I have given today and at earlier stages of the Bill, I remain of the view that the advantages of formalising the defence in a defence statement apply across the range of Crown Court cases, and that the drawbacks of creating an exemption outweigh any benefits that might accrue.

Finally, the prosecutor may only comment at trial on the failure to give a defence statement with the leave of the court. If he does, it will be for the jury to decide what inference may properly be drawn. In so doing they will have the benefit of the summing-up by the trial judge in which he or she can direct them as to what inference it is proper to draw. If it really is not in the interests of justice for the accused to have given a defence statement, that is bound to affect whether the judge allows inferences to be drawn.

4.30 p.m.

Lord Williams of Mostyn: My Lords, I think the Minister has elided a number of different questions. Case management cannot sensibly be seen as wholly distinct from issue resolution. I suggest that it is not helpful to speak of the whole range of Crown Court cases. They range, after all, from shoplifting a jelly at Tesco to murder. But many murders are infinitely simpler in trial than shoplifting bananas or jellies from Tesco.

The noble Lord, Lord Carlisle of Bucklow, and I have both practised in the Crown Courts. We have prosecuted and defended serious cases. Let me take murder as an example. In many a case, if the noble Lord said to me (he prosecuting and I defending): "What's the issue?", I should simply tell him self-defence or diminished responsibility. The judge might well ask him: "Lord Carlisle, do you really want a full defence statement in these circumstances?". He would say, "No, of course not. We need no adjournment; we need no extra costs".

Our contention is that there is a significant number, perhaps a minority, of cases where flexibility is the friend of the saving of time and expense, and

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inflexibility is the ally of delay and waste of money. The Government seem intent at present--unless they rethink before the matter goes to another place, or while it is in the other place--on imposing a wholly rigid structure on a range of criminal cases that is infinitely diverse.

It is not an answer to say that the sanction on the non-provision of a defence statement is the comment under Clause 10(3). That is a sanction. We seek to attend not to sanctions, but to whether the defence statement is required in every case. At the moment, the words in Clause 5(3) of the Bill are that,


    "The accused must give a defence statement to the prosecutor",
and the particulars are fully set out. It is a recipe for inflexibility, expense and delay, and therefore one that is best torn up and thrown away.

I hope that the Government will think again on this matter. I am bound to say that when I have put propositions of this sort either to the Minister or to the Lord Advocate, they have been more than willing to deal fully with them in correspondence. I suggest that the amendment would improve this piece of legislation and make the conduct of criminal cases much easier. However, this matter has been traversed for a little while now and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.


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