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COMMONS AMENDMENT

40

After Clause 12, insert the following new clause--

Applications: opportunity to be heard

'Where--
(a) an application is made under section 3(6), 7(5), 8(5), 9(8), 11(2) or 12(4),
(b) a person claiming to have an interest in the material applies to be heard by the court, and
(c) he shows that he was involved (whether alone or with others and whether directly or indirectly) in the prosecutor's attention being brought to the material,
the court must not make an order under section 3(6), 7(5), 8(5), 9(8), 11(3) or 12(5) (as the case may be) unless the person applying under paragraph (b) has been given an opportunity to be heard.'

Baroness Blatch: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 40.

This new clause is designed for situations where a third party, such as a local authority social services department, is the originator of sensitive material which is put before a court for a decision on disclosure to the accused. Under the Bill at present, only the prosecutor can make representations to the court about the material.

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But the third party may well be more knowledgeable about the material and may be better placed to argue the issue of disclosure. Under the new clause, the third party would be able to instruct separate counsel if necessary to make representations to the court.

Moved, That the House do agree with the Commons in their Amendment No. 40.--(Baroness Blatch.)

Lord Cooke of Thorndon: My Lords, this very day I have been dealing with exactly this point. It is extremely important that the third party should be able to address the court on this matter. I am delighted to see this provision being inserted into the Bill as amended.

On Question, Motion agreed to.

5.15 p.m.

COMMONS AMENDMENT

41

After Clause 12, insert the following new clause--

Confidentiality of disclosed information

'.--(1) If the accused is given or allowed to inspect a document or other object under--
(a) section 3, 4, 7, 9, 11 or 12, or
(b) an order under section 8,
then, subject to subsections (2) to (4), he must not use or disclose it or any information recorded in it.
(2) The accused may use or disclose the object or information--
(a) in connection with the proceedings for whose purposes he was given the object or allowed to inspect it,
(b) with a view to the taking of further criminal proceedings (for instance, by way of appeal) with regard to the matter giving rise to the proceedings mentioned in paragraph (a), or
(c) in connection with the proceedings first mentioned in paragraph (b).
(3) The accused may use or disclose--
(a) the object to the extent that it has been displayed to the public in open court, or
(b) the information to the extent that it has been communicated to the public in open court;
but the preceding provisions of this subsection do not apply if the object is displayed or the information is communicated in proceedings to deal with a contempt of court under section (Confidentiality: contravention).
(4) If--
(a) the accused applies to the court for an order granting permission to use or disclose the object or information, and
(b) the court makes such an order,
the accused may use or disclose the object or information for the purpose and to the extent specified by the court.
(5) An application under subsection (4) may be made and dealt with at any time, and in particular after the accused has been acquitted or convicted or the prosecutor has decided not to proceed with the case concerned; but this is subject to rules made by virtue of section 13(2).
(6) Where--
(a) an application is made under subsection (4), and
(b) the prosecutor or a person claiming to have an interest in the object or information applies to be heard by the court,

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the court must not make an order granting permission unless the person applying under paragraph (b) has been given an opportunity to be heard.
(7) References in this section to the court are to--
(a) a magistrates' court, where this Part applies by virtue of section 1(1);
(b) the Crown Court, where this Part applies by virtue of section 1(2).
(8) Nothing in this section affects any other restriction or prohibition on the use or disclosure of an object or information, whether the restriction or prohibition arises under an enactment (whenever passed) or otherwise.'

Baroness Blatch: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 41. I should like to speak also to Amendment No. 42.

The aim of these amendments is to ensure the confidentiality of unused material that is disclosed by the prosecutor, under Part I of the Bill, to the accused. Your Lordships will recall that I indicated during our Third Reading debate that it was our intention to bring forward amendments to this effect.

I begin with the new clause introduced to the Bill by Amendment No. 41. The purpose of this new clause is to protect unused material disclosed to the accused under Part I of the Bill by requiring it to be treated confidentially. The only reason that the accused has access to this material is that the prosecution has disclosed it. It may contain sensitive or potentially embarrassing information about other people, which could be used to harass witnesses or even for blackmail. It may be used for financial gain or published without authorisation. All of these mischiefs would be tackled at source by this clause. The accused will be able to use disclosed unused material to prepare his or her defence, or any appeal, but could not use the material for other purposes unless the court gives permission.

I should also emphasise that this protection applies to unused material only--it does not apply to the prosecution case which is served on the defence which will form the major part of court proceedings, or to anything read out in open court. Court proceedings are, in most cases, open to the press and public and it would not be appropriate to place any special duty of confidentiality on the accused in respect of this material.

The new clause that is introduced by Amendment No. 42 makes contravening the confidentiality requirement, established in the new clause introduced by Amendment No. 41, punishable as a contempt of court. The penalties available to the courts are similar to those in the Contempt of Court Act 1981. The court that heard the original case for which the material was disclosed will consider any contempt arising from misuse. The courts will have power to confiscate any protected material that has been misused, as well as to penalise the misuse.

Moved, That the House do agree with the Commons in their Amendment No. 41.--(Baroness Blatch.)

On Question, Motion agreed to.

26 Jun 1996 : Column 961

COMMONS AMENDMENT

42

After Clause 12, insert the following new clause--

Confidentiality: contravention

'.--(1) It is a contempt of court for a person knowingly to use or disclose an object or information recorded in it if the use or disclosure is in contravention of section (Confidentiality of disclosed information).
(2) The following courts have jurisdiction to deal with a person who is guilty of a contempt under this section--
(a) a magistrates' court, where this Part applies by virtue of section 1(1);
(b) the Crown Court, where this Part applies by virtue of section 1(2).
(3) A person who is guilty of a contempt under this section may be dealt with as follows--
(a) a magistrates' court may commit him to custody for a specified period not exceeding six months or impose on him a fine not exceeding £5,000 or both;
(b) the Crown Court may commit him to custody for a specified period not exceeding two years or impose a fine on him or both.
(4) If--
(a) a person is guilty of a contempt under this section, and
(b) the object concerned is in his possession,
the court finding him guilty may order that the object shall be forfeited and dealt with in such manner as the court may order.
(5) The power of the court under subsection (4) includes power to order the object to be destroyed or to be given to the prosecutor or to be placed in his custody for such period as the court may specify.
(6) If--
(a) the court proposes to make an order under subsection (4), and
(b) the person found guilty, or any other person claiming to have an interest in the object, applies to be heard by the court,
the court must not make the order unless the applicant has been given an opportunity to be heard.
(7) If--
(a) a person is guilty of a contempt under this section, and
(b) a copy of the object concerned is in his possession,
the court finding him guilty may order that the copy shall be forfeited and dealt with in such manner as the court may order.
(8) Subsections (5) and (6) apply for the purposes of subsection (7) as they apply for the purposes of subsection (4), but as if references to the object were references to the copy.
(9) An object or information shall be inadmissible as evidence in civil proceedings if to adduce it would in the opinion of the court be likely to constitute a contempt under this section; and "the court" here means the court before which the civil proceedings are being taken.
(10) The powers of a magistrates' court under this section may be exercised either of the court's own motion or by order on complaint.'

Baroness Blatch: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 42.

Moved, That the House do agree with the Commons in their Amendment No. 42.--(Baroness Blatch.)

On Question, Motion agreed to.

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