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Before Clause 53, insert the following new clause--

Use of witness statements

(".--(1) If the prosecutor reasonably believes that the accused may use a written statement made by, or photograph of, a person who is named in the charge for a purpose other than the preparation of his defence or appeal, he may apply to a court for an order restricting access by the accused to such statement or photograph.
(2) An order made by a court under this section may prohibit the accused's legal representative from--
(a) making or permitting any person to make a copy of the statement or photograph;
(b) releasing the statement or photograph to the accused; or
(c) making or permitting any disclosure of the statement or photograph or its contents to any person except when in the opinion of the accused's legal representative it is necessary in the course of preparing the defence or appeal.
(3) An order made by a court under this section may require the accused's legal representative--
(a) to ensure that the statement or photograph is always kept in a locked, secure container when it is not being used; and
(b) to return the statement or photograph to the prosecutor when the legal representative is no longer instructed in the matter.
(4) An order made by a court under this section shall not prevent the accused from inspecting all material which should be disclosed by the prosecutor to the accused.").

The noble Lord said: My Lords, the amendment proposes the introduction of a new clause which will offer a safeguard to a significant class of people who have no such safeguard. The burden of the new clause is to entitle and empower a court to prohibit the publication of material which has come into the hands of an accused which may do damage to a victim. I declare an interest as a trustee of the NSPCC and chairman of a commission of inquiry into the prevention of child abuse.

If a small child is killed, sexually abused or raped, photographs come into existence. Furthermore, statements come into existence which go into a good deal of detail about family circumstances and often the circumstances of other children in the family group and of the children of neighbours in a small community. It is a significant poison in our system that defendants who by definition are perverted, if they are properly convicted, can lay their hands upon material such as photographs and statements. It is well known that they circulate them in prison, but the matter does not end there. In my professional experience, defendants claim as of right to be entitled to retain the documents and the photographs while claiming to appeal, sometimes legitimately and sometimes not. That process of appeal can go on for years.

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The poisonous material, which is capable of doing great harm to the victims of such categories of crime, is often circulated in prison. When the offender leaves prison it is further circulated among rings of men, usually, who enjoy sado-masochistic photographs, statements and so forth. The amendment proposes that where the prosecutor has reasonable grounds for believing that that may happen he may apply to the court for an order of prohibition--I put it shortly--so that the legal representatives, solicitors or counsel are not to hand over the photographs or the statements to the defendant. They are, of course, to take instructions on them but they are not to allow the defendant to take copies and the material must be kept under lock and key.

I do not suggest that the wording of the amendment is necessarily perfect but there is a real vice and a real problem to be dealt with. It is wrong, cruel, unfeeling and unthinking for a woman who, for instance, has been subject to gross sexual assault to think that the photographs and statements in the case and the evidence of her wound is to be circulated at the whim of the person who has done her the original offence. Of course, sensible police officers will remove the address but that is of little solace to the woman. It is wrong that children growing up and hoping to escape the memories of the crime should live in fear of paedophile and pornographic rings gaining access to material generated by bad, harsh and cruel treatment.

I repeat that the amendment is not necessarily perfect in its wording, but I ask the Minister to recognise that the problem is serious. I hardly need to ask that and of course I did not put it offensively. But can the Minister say whether there is a mechanism available to this House or to another place to put it right. At the moment defendants have access to the material as of right, keep it for their own ignoble purposes and circulate it. I propose that they have no legitimate right or interest to retain the material, which is the fruit of their crime. I beg to move.

Baroness Mallalieu: My Lords, as a practising member of the criminal Bar, I support the amendment. It is a situation I have encountered in practice on a number of occasions. I am faced with material which the accused is entitled to see and I have no means of stopping him. Indeed, I represent him and I may well have to discuss the material with him. I am concerned about his having access to the material and keeping it because I anticipate that it may be used as suggested by my noble friend Lord Williams.

Apart from the most important aspect, which is the protection of the victims, I am anxious that as there is an opportunity to deal with disclosure this is a way in which one of the current difficulties can be dealt with. It is not unusual for material to be disclosed on a counsel to counsel basis. That can lead to great difficulties and embarrassment when a client requires to see material which his counsel has been given on that basis. However, the amendment provides not merely a degree of protection and comfort for victims but has the additional benefit of ensuring that the procedure in relation to occasions when such a difficulty arises is formalised by an application to the court and a court order.

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I hope that the Minister will feel that the reasoning behind the amendment is worthy of consideration and that it is a matter the Government can take up at a later stage.

Lord Carlisle of Bucklow: My Lords, I support what has been said by the noble Lord and the noble Baroness. One knows from one's own experience and practice that from time to time such horrible situations occur. Whether the amendment is the right way of dealing with it I am not sure but I hope that my noble friend will accept that there is a genuine problem. When it arises, which is not that often, it causes great anxiety and we should try to deal with it.

Baroness Blatch: My Lords, I say at the outset without reservation that in anyone's language this practice is evil and I agree that there is a very real issue to be addressed.

The amendment seeks to tackle a problem which raises fundamental issues about open justice, the rights of persons accused of serious crime to know the case against them, and the rights of victims that statements and photographs should not be used for pornographic or other improper purposes. We do not have any reliable data about the extent to which statements or photographs are misused in that way, but we know that it does happen. It is most likely to happen in sexual offence cases, as has been said, where the potential for misuse is obvious and the distress to victims is the greatest.

It is not a new problem. In 1991 the Home Office issued a consultation paper inviting views on a range of measures, statutory and non-statutory, for preventing misuse of witness statements in sexual offence cases. There was no agreement on how best to proceed. Some favoured adopting all the measures while others doubted that any effective and enforceable solution could be found which reconciled all the conflicting interests. The Royal Commission on Criminal Justice subsequently recommended that in sexual offence cases defendants should be required to return victims' statements to the instructing solicitor at the conclusion of the case. While this would go some way towards addressing the problem the Government believe we should continue to search for a more effective solution.

At a meeting with the Law Society last summer a number of options were discussed and it was agreed that further work was needed. There was another meeting only last week at which the Law Society indicated that it favoured legislation on the lines of this amendment, albeit restricted to sexual offence cases. I mention this background in order to highlight the great complexity of the mischief which is the target of this amendment.

The principle of open justice is fundamental to our system. We have international obligations to ensure that those accused of crimes receive of a fair trial. We must be satisfied that any restriction imposed on access by defendants to prosecution material would be compatible with those obligations and would not lead to miscarriages of justice. That is not a simple matter and requires further careful study.

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We must also avoid imposing unnecessary burdens on the criminal justice system. Procedures which require the prosecution to apply in each case to the court for an order restricting access would be very cumbersome for both the prosecution and the court. What test is the prosecutor to use in deciding whether to apply to the court? More importantly, what test is the court to use in deciding whether to grant an order? The practicality of such a system needs careful consideration, together with any options which might simplify the procedures and avoid unnecessary bureaucracy.

The amendment also makes no provision for unrepresented defendants. That is an important aspect of this issue. If one accepted the principle, with which I have a good deal of sympathy, that access by defendants should be restricted in some circumstances, how are unrepresented defendants to gain access to material on terms which it is proposed should apply to defendants who are legally represented? What arrangements are to be made for access depending on whether the defendant is in custody or at liberty? These are important practical considerations if we are to ensure that any measures which are put in place operate effectively.

Finally, the amendment does not specify what penalty is to be imposed for breaching the requirements of an order. That is an important point on which we need to be clear. One possibility is that a breach could be dealt with as a contempt of court. The other would be to create a specific new penalty. We must also be clear about who would be caught. Would it be the legal representative alone, or could penalties be imposed on those proved to be misusing material which was the subject of an order?

The Government are sympathetic to the principle of this amendment. Indeed, they have been working on proposals to create a duty of confidentiality that would protect unused prosecution material disclosed to the defence under Part I of this Bill. As in this amendment, the issues are complex. Again, any such duty would have to be compatible with the general principles of open justice. It must not restrict the accused's ability to prepare his defence, or mount an appeal or apply for anything read out in open court. Yet it must also curtail the scope for abuse. The Government hope to be in a position to introduce in another place amendments to provide for such a duty of confidentiality. To a limited degree, they might assist in protecting from misuse the sort of material covered by this amendment: but only where it constitutes unused material disclosed under the provisions of the Bill.

Much further work would be needed to develop a scheme embracing other material, especially given that in some cases it may have entered the public domain, if it has been used in open court, and given the practical questions I have outlined. Nevertheless, we do intend to continue our work with the aim of producing a workable scheme as soon as possible. There is no difference whatever between us as regards the principle of the amendment nor about the very serious practice that it seeks to address. But more work needs to be done and, in the light of that, I hope that the amendment will not be pressed on this occasion.

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5.45 p.m.

Lord Williams of Mostyn: My Lords, it is disappointing that the Government have no present alternative provision to put forward. The Royal Commission on Criminal Justice reported many, many years ago. The Minister referred to open justice. Subsection (4) of the proposed new clause provides:


    "An order made by a court under this section shall not prevent the accused from inspecting all material which should be disclosed".
Therefore, the defendant has an opportunity to know exactly what is put against him.

There is no difficulty about punishment. Courts frequently make prohibition orders against the publication of material, either specifically or the statute prohibits them generally. The penalty is for contempt and may be an unlimited fine or imprisonment.

There is no difficulty about the unrepresented defendant. If he is in custody, he can see the material in a controlled environment, and if he is not he may view the material by appointment in a police station, which frequently happens at present. I give one example to demonstrate the vice. The late Frederick West killed himself before he was convicted. But had he not done so and had he retained access to photographs of people--often young children and women--that he had killed and retained the statements which were part of the prosecution case, would it be right that he could retain and feast on them and distribute them over the years to his friends and acquaintances with the same tastes? I cannot believe that to be right.

I am grateful that the Minister was able to say that the Government will produce something in another place. I am grateful for that mercy. That is not a mercy to me; it is a mercy to many others who suffer not the actuality but the fear and not knowing what has happened as regards such documents and photographs. But on that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.


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