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Lord Bach: I shall not attempt to answer the majority of the questions put by the noble Lord, Lord Lucas, but I shall say something about the innocent man charged with murder. We shall come to debate Clause 17 in a moment. It is clear that the prosecutor, in his capacity as a minister of justice in any criminal trial, should, in the circumstances outlined by the noble Lord, be told by the police or the prosecuting authorities of the existence of an intercept if it clearly showed that the accused could not be guilty of the crime with which he was charged. Under the system

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that has worked until now, it would then be the duty of the prosecutor to make sure that the defendant was no longer put at risk of being convicted of a murder that he did not commit. To deal with the problem that the noble Lord mentions, even under this strict system, prosecutors, and in some circumstances judges, are told of the existence of intercepts.

The noble Lord asked whether such evidence would be admissible for the defence. Of course it would not. On the face of it, it would not be admissible for either side to use, but in those circumstances, it would be the professional duty of the prosecutor to make sure that the case did not proceed. That system arises from the case of R v. Preston. It is crucial that the material is examined to ensure that the case is prosecuted fairly.

Lord Nolan: It is not so much an interest as a fact that I have until recently held the position first occupied by my noble and learned friend Lord Lloyd as commissioner under the 1985 Act. I am still retained in an advisory capacity until the end of July, while my successor, Lord Justice Thomas, gets himself run in, so to speak.

One of the many merits of the Bill is that Clause 14(4)(d) makes the position of the prosecutor statutorily clear. Regardless of the general prohibition on the disclosure of intercept material, he should and will be told of anything favourable to the defence. He must then make sure that the defendant is not in any way prejudiced, but on the contrary benefits from intercept material in his favour. I am happy to confirm and applaud that.

10 p.m.

Lord Cope of Berkeley: I do not feel any necessity to change my opinion that there is a very strong case to answer here. The noble Lord, Lord Bach, said that the issue is finely balanced. That is to put it mildly.

The noble Lord made a point about the exposure of interception methods and the necessity to protect them. I understand that very well. But I cannot see the difference that he tried to draw between a bug in a room and a telephone tap in that respect. It seems to me that the capacity to tap a phone is, from the criminal's point of view, extremely easy to understand. Something said into a telephone can be recorded and listened to by the police or whoever it is who is chasing him.

On the other hand, bugs have become exceptionally complicated. Their technical capacity is constantly being refined. We hear about that from time to time. The capacity argument relates to bugs rather than the telephone, the tapping of which is extremely simple. So that argument does not work.

I understand that criminals now tend to use pre-paid mobile telephones instead of fixed lines. That is a technical advance from their point of view because such telephones are slightly more difficult to tap. But it does not seem to me that it would make them any more inclined to think that, from their point of view, the telephone was a safer instrument than it was before.

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I was also extremely interested in the case which the noble and learned Lord, Lord Lloyd, mentioned about A and B--the Dutchman and the United Kingdom subject. I should like to know whether the seminar to which the noble Lord, Lord Bach, referred was conducted before or after the result of that case from the Appellate Committee of the House of Lords became known, because that is extremely relevant.

Lord Lloyd of Berwick: I can answer that question because I was at that seminar. I expressed much the same view as I have expressed this evening. The decision of the House of Lords was given literally last week or a fortnight ago.

Lord Cope of Berkeley: In that case, the seminar's conclusions need to be looked at again. After all, the British police and authorities will be extremely tempted to gain the co-operation of the Dutch police in intercepting mobile calls here. If it can be done that way and then it is possible to use that in evidence, that would be extremely valuable and a novel technique to be used.

But then there is the question of the balance between the prosecution and defence and the clear illustration which my noble friend Lord Lucas advanced; that is, the person charged with murder about whom a telephone intercept revealed that he had a perfect alibi, was innocent or somebody else did it. The defence put up to that was that the prosecution should be told of the intercept if the accused was quite clearly innocent. Then the charge would be withdrawn.

Lord Bach: The noble and learned Lord, Lord Nolan, answered that point and dealt with it clearly. He referred the Committee back to a clause to which I should have referred; namely, Clause 14(4)(d). That states that,


    "it is necessary to ensure that a person conducting a criminal prosecution has the information he needs to determine what is required of him by his duty to secure the fairness of the prosecution".

That paragraph is the answer to the query of the noble Lord, Lord Lucas. In other words, if the prosecutor is doing his duty, then, under the present system, there is no danger of the massive injustice in the example given by the noble Lord, Lord Lucas, being done.

Lord Cope of Berkeley: I looked at Clause 14(4)(d), especially when the noble and learned Lord, Lord Nolan, drew our attention to it. The clause states that it is for the prosecuting barrister to decide the matter. It seems to me that in some cases no doubt the interception will, to use the phrase used by the Minister in his earlier reply, make quite clear that the individual was innocent. That is fair enough. The prosecution is then withdrawn.

Let us suppose, however, that it does not make it quite clear but makes it a possibility. Is it then for the prosecuting barrister to decide how the matter lies? Apparently it is. It is not for the court, the jury or

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anybody else to decide. It is for the prosecution to decide whether or not the case should be withdrawn as a result. As far as I can see, the defence does not get a look in. The defence is not allowed to suggest that the case is withdrawn. The prosecution has to behave as a jury and make the decision. That does not seem to be satisfactory, either. I believe there is still a case to answer as regards Clause 16 stand part.

Lord Lloyd of Berwick: I thank the Minister for his full reply. I thank the noble Lords, Lord Cope and Lord Lucas, for the concern which they have shown about this clause.

The Minister says that the clause has worked well in the past. However, I am left with the thought that there may have been many convictions over the past however many years which could have been obtained if Clause 9 had not been part of the 1985 Act. I much look forward to the code of practice which, as I understood the Minister, will say that where a telephone intercept warrant can be obtained it will be bad practice to use a bug. It will be interesting to know how that will work in practice.

Lord Cope of Berkeley: It seems that the Minister is not going to respond to the point I made about the prosecution or the defence making the case.

Lord Lloyd of Berwick: I hope that he does.

Lord Cope of Berkeley: If he does not, I wonder whether the noble and learned Lord will guide us on the matter?

Lord Lloyd of Berwick: No, I would much sooner the Minister did.

Lord Bach: I would much sooner the noble and learned Lord did! The principle is clear. That is why, under our system, the prosecutor has the dual role of prosecuting the case and of being a kind of minister of justice. His job is to ensure that the prosecution is carried out fairly. The expression used in Clause 14 is "fairness". It is not an absolute certainty, for example, that the accused is not guilty. If, in the interests of fairness, it is important to get over the fact that there may be evidence that suggests the accused is guilty, it would be his duty as a prosecutor to ensure that that was known.

Indeed, the prosecutor would have the right to refer the matter to the trial judge under Clause 17(6), to which we are coming. Intercepts are a unique invention and it is important that the way in which they work is not too widely known. That is why, in cases of this kind, the prosecutor would be the person who should be told that there was an intercept, that such intercept made it clear that the accused might or might not be guilty, and that it was in the interests of fairness that that information is passed on. The question of the prosecutor being the minister of justice arises in many other instances where the prosecution has other information, unused material, which is not necessarily available to the defence. Sometimes that is

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for good reason, but it is still his duty to ensure that the accused faces a fair trial. The prosecutor cannot just be equated on all terms with a defence advocate. There is a difference in job.

Lord Lucas: It still seems to be an odd corner of the world. If the evidence just "tends" to show that a person may be innocent, the prosecutor is told. That is fine. But there is no provision under Clause 17(6) for the prosecutor to tell the judge. He can disclose it to the judge only if the judge orders it. How the judge knows about it is beyond me. But even if the judge finds out, he cannot tell the defence; and if the defence knew, they could not adduce it in evidence. So how on earth does one get this information before the jury to help the members of the jury to make up their mind?


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