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Viscount Colville of Culross: My Lords, I recognised this when I saw it, as being Saunders. The noble Lord said that a large number of cognate matters have been taken in in the world of commerce, as may be seen. I have not had an opportunity previously to ask the Minister about this, but will he apply his mind to the situation that confronts very many motorists in this country? If they commit a moving traffic offence and the police do not stop them, the owner of the vehicle is required to say who was driving. If he says that he

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himself was driving, he is, of course, prosecuted; if he fails to say who was driving, he is prosecuted for failing to say who was driving. I think that the relevant provision is Section 172 of the Road Traffic Act 1988. It appears to me that that is on all fours with the self-incrimination which was held by the Strasbourg court to constitute a breach of Article 6(1) both in terms of lack of a fair trial and in terms of presumption of innocence.

Are there not other cases on the statute book where such provisions apply? Would it not be wise for the Government to look rather further afield now that the Human Rights Act is coming into force and given that the noble Lord used to advise his clients, in advance of it coming into force, of what would happen to them and of their possible remedies? Could the Government look a little further afield?

Lord Williams of Mostyn: My Lords, I can certainly do that. I am grateful to the noble Viscount for raising that question. I do not think that provisions such as that to which he refers are caught; nor, for instance, is the requirement, on pain of criminal sanction, to provide a sample of breath or blood in breathalyser cases. However, as I have said, I am grateful to the noble Viscount for asking that question, which I shall certainly have researched. The research may be extensive, but, for the moment, I commend the amendment to the House.

On Question, amendment agreed to.

Lord Cope of Berkeley moved Amendment No. 109:


After Clause 55, insert the following new clause--

("Chapter VIA
Use of Defence Statements
Accused's statements: disclosure

.--In section 11 of the Criminal Procedure and Investigations Act 1996 (faults in disclosure by accused), after subsection (4) there is inserted--
"(4A) Except as provided by this section no part of a statement given under sections 5(6) or 6(2) may be disclosed at a stage in the trial after the jury have been sworn without the consent of the accused."").

The noble Lord said: This amendment seeks to insert a new clause on the use of defence statements--a wholly new matter with regard to this Bill. I have tabled this amendment at the suggestion of the Law Society.

The Criminal Procedure and Investigations Act 1996 provided for defence statements to be given which were intended to assist with the early identification of issues: the weeding out of cases which should never have come to court because the defendant had a good answer to the charges; to allow the police the opportunity to confirm genuine alibis as soon as possible and to prevent guilty defendants using ambush defences which cannot properly be tested in court. All of those aims are entirely desirable, but none is achieved if the defence statement is inadequate. At the moment, defence statements are thought to be inadequate. I understand that not only the Law Society but, in some respects, the police and the Crown Prosecution Service have expressed concern at different times about the inadequacy of defence

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statements. Apart from damaging the aims which I set out, a further consequence is that the prosecutor is unable to provide adequate secondary disclosure to the defence.

The question is why the defence statements are inadequate. I understand that, in the Law Society's view, a significant reason for this state of affairs is that a defence solicitor does not want to run the risk of the prosecutor using concessions made in a defence statement as evidence in support of the prosecution case. At present, it seems that the prosecutor can put the defence statement in evidence as part of the prosecution case. Obviously, that makes solicitors extremely careful when drawing up statements. The Law Society believes--this seems to me to have validity--that the aims of the statements can be met without allowing the prosecutor to use the defence statement as part of the prosecution case. Allowing such a use of a defence statement is an unnecessary dilution of the principle that the Crown has the burden of proving the accused's guilt. It also discourages the giving of adequate defence statements and therefore has an adverse effect on the fairness of the proceedings as a whole. It seemed to me that that argument had sufficient validity to make it worth putting before your Lordships' House so that we could hear the Minister's response. Clearly it is in everybody's interests that the defence statement should be adequate and if they are being deterred from that by the fact that it may be used by the prosecution, then an amendment on the lines suggested would seem to be necessary. I beg to move.

7.30 p.m.

Viscount Colville of Culross: My Lords, I hope that the Minister will not accept this amendment. I have seen hundreds of defence statements and the problem with them is not that to which the noble Lord, Lord Cope, referred. He must talk to solicitors, who take these matters extremely seriously. The difficulty is that they are produced by a word processor and contain absolutely no information at all. Therefore anything that would tend to support those who put as little as possible in defence statements would not meet with my approval, and I hope it will not meet with the Government's either.

The idea is that we should have some idea what the defence is. In most cases that does not happen in defence statements.

Lord Williams of Mostyn: My Lords, I agree with the noble Viscount and am not inclined to accept the amendment. I understand that the Law Society wants the quality of defence statements improved and that some defence solicitors are afraid that statements may be adduced in evidence in support of the prosecution case. But the noble Viscount is right. One does not simply want a word processor churning out defence statements which not only are of no benefit to the courts but also in many cases are a positive disadvantage to the orderly, efficient and expeditious conduct of court cases.

It is important, as the noble Viscount said, that defence solicitors should provide adequate statements. A failure to comply for one reason or another may well affect secondary disclosure by the prosecution which

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ought to be made. We are concerned with enforcing a system--the noble Viscount has rightly spoken of this on many occasions--that is not being used and is not being driven in the way intended. This prohibition is much too restrictive. The interests of justice should not be fettered in the way suggested. The admission of defence statements is governed by the normal rules of evidence and the courts' powers to ensure that defendants receive a fair trial, not least by virtue of Section 78 of the Police and Criminal Evidence Act.

However, there may be some situations where defence statements could pass the test of relevance. It may be rare, but the opportunity should be there. We should not fetter the ability of the court, for instance, to examine the accused's alibi. It is difficult for the prosecution sensibly to deploy its case to a jury without adducing the defence statement. The question of admissibility should not be conditional upon the consent of the accused because, echoing the approach of the noble Viscount, that gives a premium to not producing a proper statement.

Lord Thomas of Gresford: My Lords, before the noble Lord sits down, I suggest that his officials take a look at the pro forma which is the basis upon which many defence statements are made. It is in the barest skeleton form and if defence statements are to be made use of in this way, then broader directions should be given on the sort of information that is expected.

Lord Williams of Mostyn: My Lords, I shall certainly have that looked into. It may be that the noble Lord has a good point and, if so, the remedy may be to expand the pro forma but still leave the power of admissibility with the trial judge.

Lord Cope of Berkeley: My Lords, we are all agreed that the present defence statements are inadequate, particularly if they come duplicated off a word processor. But we are not agreed as to the reasons why they are inadequate. The Law Society's view, as expressed to me, is that part of the inhibition of putting adequate information in them is as I described. However, other people have different views. Clearly the inadequacy of defence statements is a matter to which we will have to return. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 58 [General interpretation etc. of Part II]:

Lord Williams of Mostyn moved Amendment No. 110:


Page 40, line 38, after ("V") insert ("or subsection (2))").

The noble Lord said: My Lords, this amendment ensures that subsection (1) of Clause 58 does not affect subsection (2). As currently drafted, it might. I beg to move.

On Question, amendment agreed to.

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Clause 62 [Minor and consequential amendments, repeals and transitional provisions]:


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