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Lord Mackay of Drumadoon moved Amendment No. 7:


Before Clause 11, insert the following new clause--

Public interest: review for summary trials

(".--(1) This section applies where this Part applies by virtue of section 1(1).
(2) At any time--
(a) after a court makes an order under section 3(6), 7(5), 8(5) or 9(8), and
(b) before the accused is acquitted or convicted or the prosecutor decides not to proceed with the case concerned,
the accused may apply to the court for a review of the question whether it is still not in the public interest to disclose material affected by its order.
(3) In such a case the court must review that question, and if it concludes that it is in the public interest to disclose material to any extent--
(a) it shall so order, and
(b) it shall take such steps as are reasonable to inform the prosecutor of its order.
(4) Where the prosecutor is informed of an order made under subsection (3) he must act accordingly having regard to the provisions of this Part (unless he decides not to proceed with the case concerned).").

The noble and learned Lord said: My Lords, in moving this amendment with the leave of the House I shall speak also to Amendments Nos. 8, 9 and 10, which are related to it.

The House will recall that we debated similar amendments on Report. The main purpose of those amendments, which in turn had been brought forward following a debate in Committee, was to exempt a magistrates' court from the duty to keep under review an order that it was not in the public interest to disclose certain material to the accused. On Report, the Government withdrew the amendments for further consideration of comments made during the debate by

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the noble Lord, Lord Williams of Mostyn, and my noble friend Lord Renton. Since that debate those points have been given full consideration.

The noble Lord, Lord Williams, made three points. His first concern was that, in placing the onus on the accused to apply for a review of a non-disclosure ruling, an unrepresented defendant might be disadvantaged. The question arose as to whether legal representation should be made available in such circumstances. As was explained to the noble Lord, the number of applications made to magistrates' courts to withhold material on public interest grounds is fairly low. The existence of a claim for public interest immunity may well be a reason for a magistrates' court to consider committal for trial to the Crown Court. In fact, an informal count over the past two years revealed only six applications. In all cases the defendants were legally represented.

Most defendants tried in a magistrates' court have legal representation, either privately or under the legal aid scheme. Nevertheless, I accept that very occasionally the situation could arise where an application is sought in respect of proceedings against an unrepresented defendant. I also accept that such applications can pose particular difficulties for the layman. While, therefore, the discretion whether or not to grant a legal aid order must remain with the court, the Lord Chancellor's Department accepts that it should issue guidance to magistrates' courts advising them of the new provisions and the opportunities to invite unrepresented defendants to apply or re-apply for legal aid. So the court will be able to review the entitlement to legal aid in the light of the new circumstances.

I should also point out that courts will normally draw an unrepresented defendant's attention to the benefits of representation whenever complex issues arise during the course of the trial. It seems likely that a possible application to the court for a review of an order by the court that disclosure is not in the public interest would fall into that category. It should, of course, be recognised that very little, if anything, can be done for those defendants who choose not to be represented notwithstanding their eligibility for legal aid or that they have the means to pay for private representation. When such cases arise and the defendant declines the advice of representation, the courts have to deal with the situation as best they can. Courts operate a duty solicitor scheme so that advice is available immediately if a defendant who has chosen to be unrepresented changes his mind.

The noble Lord also asked whether the review should be carried out by a judge rather than a magistrate. While I understand the argument that these difficult matters should be reserved for members of the professional judiciary, it is important to bear in mind that we are concerned here with the summary trial of cases. These will either be less serious matters, which Parliament has in the past taken the view are best dealt with summarily, or cases where the accused and the court have both agreed that the trial should proceed summarily. Other either-way cases would of course be tried in the Crown Court. In those circumstances it seems to me to be wrong to seek to remove to another forum decisions on matters which are undoubtedly important but are not

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matters which, I think, anyone is suggesting are automatically in all cases outside the competence or ability of properly advised lay magistrates. Granted, they may give rise to delicate questions of balance, but such cases will be rare in magistrates' courts and it is prudent therefore to provide an appropriate mechanism to avoid having to resort to disproportionately complex procedures.

Finally, the noble Lord, Lord Williams, commented that, should such decisions have to be made by magistrates in the first instance, there ought to be an avenue of appeal to the Crown Court. I do not think that it is necessary to provide specifically for an appeal in such matters. It is of course open to an aggrieved person to question the proceedings in the High Court by way of judicial review or case stated, and that right would be unaffected by our proposals. In the event of a conviction, the decision would effectively be reviewed by the Crown Court if there was an appeal against conviction. An additional appeal to the Crown Court adds an element of duplication and, unless carefully circumscribed, could become almost automatic if the magistrates decided against the accused.

I fully accept that the points raised by the noble Lord, Lord Williams, merit consideration, and consideration has been given to them. They are matters of balance. But I invite your Lordships to take the view that Amendment No. 7 avoids any risk of injustice in the magistrates' courts without requiring us to depart from the essential nature of a simple summary procedure.

In the debate at Report, my noble friend Lord Renton drew attention to a double negative in subsection (3) of the new clause before Clause 11. As tabled, that required a court to make an order,


    "if it no longer believes that it is not in the public interest to disclose material".
Parliamentary Counsel has taken the opportunity to improve the drafting of the new clause, and he has removed the double negative. The court must now make an order,


    "if it concludes that it is in the public interest to disclose material".
That has the same effect as the previous formulation: it either is or is not in the public interest to disclose material, and if it is not in the public interest not to disclose it, then it must be in the public interest to disclose it. I hope that the removal of that double negative finds favour with my noble friend. I beg to move.

4.45 p.m.

Lord Williams of Mostyn: My Lords, on the last occasion we had an extensive, wide-ranging discussion on the question of non-disclosure rulings. The Minister and the Lord Advocate undertook to consider those difficult questions with care. I am bound to say that they did so because the Minister was good enough to write, on 14th February, setting out a full, reasoned scheme of explanations why my proposals could not be accepted.

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Public interest immunity is not always an easy matter, even for Attorneys-General.

Lord Carlisle of Bucklow: My Lords, or even for Lords Justices.

Lord Williams of Mostyn: My Lords, or Lords Justices, but Lords Justices sometimes say that they may be wrong, which is not a necessary qualification for the post of Attorney-General. We are looking at a difficult situation but, as the Lord Advocate said, in practice quite small--six cases in two years. That puts the matter into a helpful context.

It is an enormous advantage, and I am grateful that the noble and learned Lord the Lord Advocate repeated it in your Lordships' House, that the Lord Chancellor's Department will give guidance--obviously subject to the discretion of the magistrates' courts--in regard to the necessity or the desirability of having representation available. I leave that on one side, grateful as I am for that indication.

I still suggest that these matters are better dealt with by judges than by magistrates. I do not in any way disparage the magistrates; I have the greatest admiration for their work. But with such a small body of experience--six cases in two years--no magistrates' court will be able to build up a body of judicial experience which is useful in dealing with such tricky questions. I simply suggest again that, if these questions arise so rarely, would it not be better to have the liaison presiding Crown Court judge to deal with them?

The question of appeal goes hand-in-hand with my last suggestion. If magistrates are to deal with those matters, a quick, simple, local appeal ought to be available to the Crown Court. On page 3 of the letter dated 14th February to which I referred, it was suggested, and the Lord Advocate repeated to your Lordships this afternoon, that,


    "It is of course open to an aggrieved person to question the proceedings in the High Court by way of judicial review or case stated".
Then, almost within the next breath, he spoke of avoiding delay and expense. An expedited hearing for judicial review in the Crown Office list is lucky to get on in nine months at the moment. I am suggesting a quick, cheap appeal to the local Crown Court which would be much more effective in practice.

Those are matters which I hope to coax the Minister to reflect on a little further. The problem is small numerically and can be dealt with on the basis of the scheme I proposed. I repeat how grateful I am for the approach adopted by the Minister and the Lord Advocate.


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