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Lord Mayhew of Twysden: Would it be possible, if not today then a little later, to take account of the point raised by the General Council of the Bar in relation to Schedule 2 and to this particular provision which gives to the police a new power to attach bail conditions before charge? The council's point was that the mere fact that a suspect has been brought to the police station does not mean that he or she has committed any offence. The council then points out that the custody officer is required to determine whether he has before him sufficient evidence to charge that person. Routinely, so it is said, the suspect is charged where there is a minimum of evidence. It is thereafter pointed out that where the custody officer takes the view that there is not enough evidence to justify a charge, it can generally be inferred that there is at the time little or no substance in police suspicions.

The police have adequate power to release a suspect on bail to return to the police station on a specified date. Accordingly, it seems to me, although I have not reached a conclusion about it, that it would be an unfair extension of police power to be able to impose a condition on bail in those extreme circumstances. I am afraid that I have not put down an amendment to

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enable the matter to be debated, but the Minister may be able to say something about it now or, alternatively, later.

Lord Goldsmith: I can certainly say this and I hope that it will help. The provisions in Schedule 2 deal in part with the new procedure under which the police will not charge an offender, even though they may believe that there is sufficient evidence to do so, but may instead release that person without charge on bail for the purpose of enabling the Director of Public Prosecutions to make a decision. One sees that on page 179, Schedule 2, paragraph 2, amending Section 37 of PACE. It is fundamental to the change, which has not attracted much by way of amendments because it has been supported by all political parties and the police and professional bodies too. In many cases—I will not go into which cases—it also gives the prosecution the new responsibilities for determining whether a charge should be brought.

In those circumstances, instead of the custody officer then and there saying, "You're charged with this offence", he will say, "There appears to me to be evidence, but in accordance with the new provision it ought now to go to the Crown Prosecution Service". What should happen during that period? The person should be on bail rather than in custody—he would have to be charged to be in custody—but it is appropriate for conditions to be imposed. It is necessary to make the new provision for having pre-charged bail in order to be able to cater for that example.

Schedule 2, as amended, agreed to.

Clause 28 [New method of instituting proceedings]:

[Amendments Nos. 101 to 104 not moved.]

Clause 28 agreed to.

Clauses 29 and 30 agreed to.

Clause 31 [Initial duty of disclosure by prosecutor]:

Baroness Anelay of St Johns moved Amendment No. 105:

    Page 20, line 17, at end insert—

"(c) at the end there is inserted "where a prosecutor is not sure if an item falls within the regime of documents to be disclosed, they should be disclosed"."

The noble Baroness said: We now begin our debates on the important issue of disclosure. As we have made clear already, there is much that we can support in Part 5, but there is also much that we need to probe and clarify. We will oppose some issues, such as the proposal for the defence to disclose the details of experts whom they have consulted but do not intend to call as witnesses.

Clause 31 is just about the only non-controversial part of Part 5. It amends Section 3 of the Criminal Procedure and Investigations Act 1996 and introduces a single objective test for the disclosure of unused prosecution material to the defence. We welcome this reduction of the existing two-stage process of prosecution disclosure to just one stage and we

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welcome the change of the test from subjective to objective. It means that the test of, as currently worded,

    "in the prosecutor's opinion might undermine",


    "might reasonably be considered capable of undermining".

We have tabled this probing amendment in response to a briefing from the London Criminal Courts Solicitors' Association. It simply asks the Government to put on the record that it is only in clear-cut cases that information should not be disclosed by the prosecution. Failure by the prosecution in the past to disclose information has sometimes been a major factor in overturning convictions—and, as Auld points out in his report, this is often after the person has spent many years in prison.

It is therefore essential that the right decision is made by the prosecution and if there is any doubt the prosecution should disclose. I beg to move.

6.45 p.m.

Lord Goldsmith: I understand the motivation behind the amendment. It is designed to ensure that the legislation is weighted in favour of prosecution disclosure rather than non-disclosure. I agree that it should be, but the amendment is not necessary for three reasons. First, the wording of the Bill already achieves this effect, although it is implicit in the legislation rather than explicit. The Criminal Procedure and Investigations Act 1996, as amended by this Bill, requires material to be disclosed if it might—I underline the word "might"—reasonably be considered capable of undermining the prosecution case or of assisting the defence case.

We see those words in Clause 31, paragraph (a). The word "might" in this context already tips the balance in favour of disclosure where there is any doubt in a particular instance.

The second reason is that there is an explicit steer on the subject in detailed guidance that is issued to prosecutors. The present guidance is in the Attorney-General's guidelines of November 2000, which cover this point explicitly. Paragraph 20 provides:

    "In deciding what material should be disclosed at any stage of the proceedings, prosecutors should resolve any doubt they may have in favour of disclosure unless the material is on the sensitive schedule and will be placed before the court for the issue of disclosure to be determined".

I need not now deal with the issue of sensitive material, which obviously falls into a different category.

Thirdly, one of the changes made by the Bill is to remove the subjective test from the disclosure procedure. Again, that appears from Clause 31 because the old formulation,

    "in the prosecutor's opinion might undermine"

is substituted by the objective test,

    "might reasonably be considered capable of undermining".

The amendment proposed by the noble Baroness, Lady Anelay, would restore a subjective element. We have been trying to get rid of the subjective element and to stick to an objective test that does not depend on which person is applying it.

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While not disagreeing with the thrust of what lies behind the amendment, for the reasons I have given we do not consider it necessary. Accordingly, I invite the noble Baroness to withdraw the amendment.

Baroness Anelay of St Johns: I am grateful to the noble and learned Lord for his response. As he said, the assurance is not explicit within the Bill, only implicit. His response today has made the Government's assurances explicit and on that basis I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 31 agreed to.

Clause 32 [Defence disclosure]:

Baroness Anelay of St Johns moved Amendment No. 106:

    Page 20, line 31, at end insert "but the exchange of such a defence statement between the co-accused and its service by each accused on the prosecution shall be simultaneous"

The noble Baroness said: In moving Amendment No. 106, I shall speak also to Amendments Nos. 110 and 111. Amendment No. 109 appears on the groupings list in error. It was withdrawn last week and is so marked on the Marshalled List.

There is also an error in the placement of Amendment No. 111. In the Marshalled List, it is placed at page 21, line 38. That is a printing error because it should be at page 21, line 42.

We now move to the issue of defence disclosure. Disagreements over this clause are rooted in concerns about how the Government appear to be tampering with the principle of what the defence should be allowed to do to resist the prosecution. It reflects debates on the relative and different duties of the prosecution and defence.

In the debates on this matter in another place, (col. 223 on 9th January) my right honourable friend Dominic Grieve made it clear that we accept the principle of disclosure of the principal defence facts. After all, it was introduced in legislation under the previous Conservative government. Even in an adversarial system such as ours, a criminal trial should not be a series of ambushes. It is therefore plainly desirable that, as far as is possible and reasonable, the principal facts and matters of a defendant's case should be made available to the prosecution before the trial.

As has been pointed out by many organisations which have briefed noble Lords, such as the Bar Council, Justice and the Law Society, the defence will usually have far fewer resources at its disposal than the prosecution to provide extensive information and to provide it speedily.

Amendment No. 106 would provide for the simultaneous exchange by defendants of their respective statements with each other and their service on the prosecution. We appreciate of course that there may be times when this will not be possible; for example, when the defendant is arrested late. However this does not deny the fact that it would be far better to exchange all statements simultaneously. If this is not

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achieved, then the last defendant to join proceedings would have a distinct advantage over the others, which may not lead to a fair trial.

Amendment No. 111 develops this theme by taking the same line with regard to the simultaneous nature of exchange in circumstances where there has been an updated defence statement. Again we accept that this could create problems. Additional statements may be served for different reasons by different defendants at different times. Amendment No. 106 serves to remind us of the core principle of the fairness of the mutual exchange of statements. It is with the intent of putting on record the importance of that principle that we have put down these two probing amendments.

On Amendment No. 110, I note that the Bar Council and the Law Society have the view that with regard to Clause 32(2):

    "Contents of defence statement gives the Secretary of State power to prescribe in regulations further details to be required in defence statements. This is too constitutionally sensitive and important to the balance of a fair trial and should require primary legislation."

That is their view. I have tabled the amendment, in part, so that the Government can put on the record why they believe it is appropriate for secondary legislation. I have also tabled it for my own purposes. I wish to clarify a situation that arose as a result of how this was dealt with in another place. I have given advance notice of this particular point to the noble and learned Lord's Bill team.

This matter was debated in another place on 9th January (Hansard, col. 240). It was an amendment put forward by my honourable friend, Dominic Grieve. The quick response from the Government was to say, "We accept it. It shall be an affirmative resolution." When the Bill appeared in draft after Committee, it reflected that by putting a new subsection (5) which referred to an affirmative resolution. As I understand it, the Government then brought forward a further amendment at Report to delete the new subsection (5). They tabled an additional amendment to insert a provision on page 302, line 22, to amend Section 77 of the Criminal Procedure and Investigations Act 1996.

This is a hugely complicated procedure. When we looked at the Bill, it seemed at first blush as though the Government had reneged on their commitment in another place. We knew that was not the case. It would not have happened. But nobody could find where this amendment was. It was only when we spoke to the advisers of the noble and learned Lord that we were told what had happened. We believe it is important for clarity for those who have to deal with this Bill when it becomes an Act that the commitment of the Government is made clear. I would be grateful if the noble and learned Lord could confirm his understanding that the life history of Amendment No. 110 is as I have described it. I beg to move Amendment No. 106.

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