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Lord Renton: My Lords, the Government should be congratulated on what they have done. I do not go along with the noble Lord, Lord Williams of Mostyn, in saying that when a case is before a court which happens to be a magistrates' court--most likely a stipendiary--the public interest immunity point should nevertheless not be decided by that court but should go necessarily to a High Court judge.

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Our judicial procedures are elaborate, time-consuming and costly. We should avoid adding to them. The Government have got this right. Also, I thank my noble friends for getting rid of the double negative to which I referred earlier.

Lord Rodgers of Quarry Bank: My Lords, perhaps I may ask the noble and learned Lord a question. In referring to the circumstances where the defendant is not represented in a magistrates' court--I fully understand that those are rare occasions--the Lord Advocate said that it should be recognised that very little if anything can be done for a defendant who chooses not to be represented. He then referred to eligibility for legal aid and to the question of whether a defendant has the means to pay. There will be those defendants who are not eligible for legal aid in any circumstances but do not judge that they have the means to pay. It is a subjective matter and they may decide that they cannot afford to pay.

The noble and learned Lord went on to say that,


    "the courts have to deal with the situation as best they can".
He continued by referring to the duty solicitor scheme. When he says that the courts will deal with the situation as best they can, can he explain to the House how indeed they can deal with it and what the options open to them will be?

Lord Mackay of Drumadoon: My Lords, perhaps I may reply to the point that has just been raised. Where an accused person or defendant is determined to represent himself, the court, to use the words I adopted, will have to deal with the situation in the best way it can. The first tack is normally to seek to persuade the defendant to change his mind, and if he is eligible for legal aid, to grant such an order. However, from time to time there come before the courts people who for whatever reason are determined to represent themselves. Experience suggests that in that situation the court--whether it be a member of the professional judiciary or the magistracy--does a good deal more than it would normally do to ensure that the argument that falls to be made on behalf of the unrepresented person is brought into the discussion.

This can be done in a variety of ways. It can be done by leading the defendant to put forward an argument which one feels ought to be made on his behalf; or it can be done by saying to the prosecutor, "Well, the defendant's answer to the point you make is this way". The court tends to adopt a more interventionist role than it would normally do if both sides were professionally represented. That is what I had in mind in saying that the court would deal with the situation in the best way it could. It is a commendable practice which courts are required to adopt from time to time when they are faced with an unrepresented accused who is determined to decline whatever offer of legal assistance is made in his direction.

On this occasion I am in the fortunate position of having my noble friend Lord Renton entirely on my side. Although I have not been in your Lordships' House for long, I am well aware of what a great pleasure and a great benefit that is. It is a balance to be struck whether

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to leave the matter with the magistracy or to introduce the Crown Court into the situation. In all questions of balance a professional judgment has to be taken. In this instance my noble friend Lord Renton and I share the same professional judgment. Having listened to the helpful comments made by those on the Benches opposite, I intend to sit down, having invited your Lordships to agree to the amendment.

On Question, amendment agreed to.

Clause 11 [Public interest: court to review orders]:

Lord Mackay of Drumadoon moved Amendments Nos. 8 and 9:


Page 8, line 2, at beginning insert--
("( ) This section applies where this Part applies by virtue of section 1(2).").
Page 8, line 13, leave out ("no longer believes that it is not") and insert ("concludes that it is").

The noble and learned Lord said: My Lords, these amendments have already been spoken to. I beg to move.

On Question, amendments agreed to.

Clause 12 [Rules of court]:

Lord Mackay of Drumadoon moved Amendment No. 10:


Page 8, line 26, leave out from ("provision") to end of line 29 and insert ("mentioned in subsection (1A).
(1A) The provision is provision as to the practice and procedure to be followed in relation to--
(a) an application under section 3(6), 7(5), 8(2) or (5), 9(8), (Public interest: review for summary trials)(2) or 11(3);
(b) an order under section (Public interest: review for summary trials)(3);
(c) an order under section 11(4) (whether or not an application is made under section 11(3)).").

On Question, amendment agreed to.

Clause 19 [Effect of code]:

Lord McIntosh of Haringey moved Amendment No. 11:


Page 12, line 32, after ("conducting") insert ("or participating in").

The noble Lord said: My Lords, this amendment relates to Clause 19 which seeks to apply to a very limited extent--to investigators other than the police--the code of practice which has been described in the preceding clauses. Although I recognise that Clause 19 is based on Section 67 of the Police and Criminal Evidence Act 1984 it is nevertheless a very feeble clause. It provides:


    "A person other than a police officer who is charged with the duty of conducting an investigation ... shall ... have regard to any relevant provision of a code which would apply if the investigation were conducted by police officers".

We had a number of debates on this point at Second Reading and in Committee. The first argument put forward, which wisely was withdrawn, was that it would be impossible for a code to apply to other than police officers because the other investigating agencies were under the control of different Secretaries of State. The Minister recognised that that was not a sound argument. We then went on to consider the status of the phrase

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"have regard to". A number of noble Lords in all parts of the House pointed out the weakness of the phrase "have regard to a code of practice". One can have regard to a code of practice, then go away and do something different, and get away with it.

The distinction between having to "have regard to" and "comply with", which is what we proposed at Report stage should be the wording in the Bill, is of great importance in legislation. The phrase is used very frequently. When I have wanted to weaken, for example, the control by central government of local authorities I have always argued that local authorities should "have regard to" the directions of central government. Conversely, when Ministers want to assert strong central control, they use the words "comply with". I suggested at Report stage that the words "comply with" were the only way of ensuring that an investigation, which could be carried out, and very often is carried out, by investigative agencies other than the police, should be in accordance with the code--in other words, that the words "comply with" were more appropriate. However, on a Division, the House took a different view.

So we are stuck with the words "have regard to". We cannot raise that issue again but we now seek to do something more modest which is appropriate to our deliberations after Third Reading but is still worth doing. The duty of conducting an investigation under Clause 19(1) refers to all kinds of other agencies. It refers to Her Majesty's Customs and Excise, to the inspectors of the Serious Fraud Office, to local authority trading standards officers and to the Health and Safety Executive, which, as the Minister pointed out last time, has the duty of prosecuting as well as investigating. It is certainly true that Clause 19 covers those investigating authorities. But it does not cover people on behalf of whom we expressed a great deal of concern at earlier stages--people like expert witnesses, particularly forensic scientists.

It is true to say that forensic scientists and other expert witnesses need not be covered by the whole of the code of practice. But the code of practice has been--and if it has not been, it certainly can be--drafted in such a way that it only applies, as appropriate, to those people. However, it is surely of great importance that those who are participating in an inquiry, like forensic scientists, should be covered, as appropriate, by the code of practice. For exactly the same reasons as we gave last time it is important that the code of practice should cover the investigation in a criminal case. If there are any defects in the drafting of Clause 19 then the investigation will be broken backed. The code of practice will only apply fully to police officers; it will apply in the "have regard to" sense to other investigating authorities; it will not apply at all, even in so far as they are concerned, to those who are participating in an inquiry, like forensic scientists.

When one looks at the code of practice, surely it is important that all the rules about the proper copying of material, its retention, and the reporting and recording of material, are all in the hands of people like forensic scientists who are participating in the investigation as well as in the hands of those who are conducting the investigation. I am grateful to my noble friend

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Lord Williams for pointing out that my original word "assisting" could have led to misunderstanding since I believe the phrase "assisting the police in their inquiries" has a specific meaning, at least in the tabloids. I am grateful to him for suggesting that "participating" is the right word. I believe that it is and that this amendment is constructive and helpful. I commend it to the House. I beg to move.

5 p.m.

Lord Mackay of Drumadoon: My Lords, I fully accept that the noble Lord, Lord McIntosh, puts forward this amendment in a constructive frame of mind. But, on closer scrutiny, I suggest that it is not a necessity to the structure of the scheme and it might go beyond that to create practical difficulties to at least some of the people to whom it might apply.

It is important to bear in mind that the code of practice, as provided for in the scheme, is directed to those charged with conducting investigations. Inevitably, from time to time, they are required to seek "assistance" from others, whatever construction one puts on that word. That assistance can come from people such as forensic scientists and police surgeons. It is right that your Lordships should be satisfied that outside experts instructed to assist in investigation have proper regard to their professional responsibilities.

But, when one looks at the steps that the Forensic Science Service takes to impose a proper level of professional standards and discipline upon its work, it is quite clear that in its case there is no necessity for what this amendment provides. As you Lordships may know, the Forensic Science Service has been an agency since 1991. It exists to provide a service not only to the police but to defendants and indeed to anyone who supplies material to it requesting that it be scientifically examined. It is therefore independent of the police and that has become much clearer since it changed to agency status.

Its established practice is to retain all documentation dealing with the material submitted to it for examination, whether or not the prosecution relies upon the results and they are disclosed to the accused. This documentation is retained for several years after the proceedings have been concluded.

Material which is submitted to the Forensic Science Service for examination is either retained by the service or returned to the police or whoever gave it the material in the first place. If the material is kept by the Forensic Science Service, it is kept with the documentation to which I have referred. If it is returned to the police, then obviously it will fall within the provisions of the code of practice. As many of your Lordships will know, witness statements which members of this service provide for court purposes are much fuller in detail than they used to be. They explain in detail how the witness has gone about dealing with the material received from the police, what hypothesis the police asked the witness to test for, and what results, if any, were found.

An independent check on the service's procedures is afforded by the fact that it is accredited by the National Measurement Accreditation Service and its

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administrative procedures are accredited by the British Standards Institute. On the basis of that information there can be little doubt that the public have every right to be confident that the Forensic Science Service will do its work in this field to the highest possible professional standards.

In moving the amendment the noble Lord concentrated particularly on the forensic scientist but in the course of his remarks he said that it can apply to other experts. That takes us into the field of such experts as medical experts, which was a subject discussed during Report stage in the context of an amendment moved by the noble Lord, Lord Rodgers of Quarry Bank. He was concerned that a requirement to abide by a clause amended in these terms would cause difficulties for doctors in view of their existing duty of medical confidentiality. On that occasion, my noble friend Lady Blatch gave an assurance to the House that Clause 19 as currently drafted does not apply to doctors acting as police surgeons and indeed that, if it did so apply, the Government were required to bring forward an amendment to remove that difficulty.

Unfortunately, one consequence of the amendment proposed by the noble Lord, Lord McIntosh, would be that the House would be going in the opposite direction to the amendment tabled by the noble Lord, Lord Rodgers. It would be going in the opposite direction to the assurance given to the House by my noble friend Lady Blatch.

Similar difficulties might well arise in other fields where professional experts were called in to assist. In those circumstances, with the assurance that experts are members of professional bodies who strive to adhere to the highest possible standards, it is in my view correct for the Government to take the view that the code of practice is directed to those conducting the investigation and not to those who may be instructed to assist in one small part of it. For those various and several reasons, I hope that the noble Lord will feel it possible to withdraw his amendment.


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