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Lord Renton: I was interested to hear the noble Baroness say that she was involved in the trial of the Guildford Four. It so happens that some years before that I was Recorder at Guildford for three years. I am very glad that she said what she did—in particular, as she stressed, that the burden of proof must remain upon the prosecution.

However, if the provisions of this clause and the two later ones come into force, I am afraid that the doubts that I have had for some time about the 1996 Act will be increased. In Clause 38, in particular—I know that it is slightly outside the scope of this matter but it is relevant—and in other clauses the burden of proof could appear to be moved on to the prosecution but on somewhat technical grounds. That is not part of our fundamental principle of justice in criminal actions.

Therefore, I believe that the noble and learned Lord, Lord Ackner, has performed a valuable service in opposing the Question whether Clause 32 stand part. I hope that I am not being outrageously irrelevant if I say that that is an example of our having to take great care about changes that may be made in the judicial composition of this House in future.

Lord Clinton-Davis: Like other noble Lords, I am deeply concerned about this provision. I believe that the noble and learned Lord, Lord Ackner, has done a service by insisting that Clauses 32 and 33 should run together. I hope that my noble and learned friend will take this opportunity to think again about the proposal outlined here, as addressed by a number of noble Lords.

I have a lot of experience of criminal trials, although I gave up at the end of 1984. I learned that co-operation between the prosecution and defence is vital. I am worried that in their rush to deal with ambush defences, which the Government think are a real problem, although I do not, the Government are trying to prevent the House of Lords reaching a reasonable solution on this issue. Anything that impedes or impairs that degree of co-operation is likely to cause immeasurable harm in practice.

The prosecution trusted me—a great deal depends on trust—and I found that in discussions with the prosecution, whether it was represented, or with the police themselves, it was possible to reach a solution

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that both sides found equitable. I cannot think of an occasion when the prosecution, or for that matter, the defence, were unreasonable if they were properly represented.

I find it impossible to accept that the balance to which the noble and learned Lord, Lord Woolf, referred should be pushed quite as far as it is being pushed at the moment. My view is that the balance is about right. I am not against any change whatever, but it is important to preserve some balance. What my noble and learned friend has in mind is unacceptable. It is being said that the prosecution is disadvantaged by the present law, but it is not.

As I said, a great deal depends on trust. If a dishonest solicitor appears for the defence, that trust will be affected. Equally, a prosecution that is sanguine about revealing essential issues affecting prosecution witnesses would also be unacceptable.

However, in practice it does not work like that. I ask my noble and learned friend to think again about this issue. I hope that it will not be pressed to a Division tonight, but I cannot promise not to return to it later in our considerations.

7.15 p.m.

Lord Goldsmith: I am grateful to those who have spoken and, of course, I respect their views.

I shall spend a few moments on Clause 32, which is the clause that we are considering, although the debate has, understandably, ranged more widely. There are three different provisions. First, Clause 32 deals with the contents of a defence statement and updated defence statements. I shall say more about that in a moment, but it gives more detail to existing obligations under the 1996 Act, which noble Lords on the Conservative Benches will certainly wish to support, as it follows on legislation for which they were responsible.

Secondly, on the point to which my noble friend Lady Kennedy of The Shaws referred, Clause 33 deals with the notification of intention to call defence witnesses. It gives rise to an issue that has been touched on in another place, and it will be necessary to say something about it—specifically on the question raised by my noble friend about whether it might result in witnesses being somehow intimidated.

Thirdly, we shall come separately to Clause 34 on the notification of names of experts instructed by the defendant.

As it applies to all those clauses, I shall start with what the Lord Chief Justice said in his important statement that was placed in the House following Second Reading. He, and the judges for whom he spoke, as I understand it, say:

    "Problems in relation to disclosure have been a significant impediment to proper conduct at trials. The problems have related both to the prosecution and to the defence and have resulted in acquittals, cracked trials and prolonged arguments as to abuse of process".

I noted that my noble friend Lady Kennedy talked about the present situation working effectively, but that is by no means a universal view. On the contrary,

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let me identify what others have said. Independent research commissioned by the Home Office concluded that in 52 per cent of cases with a defence statement, it either contained a bare denial of guilt or did not meet the requirements of the existing provision.

The report said that most judges, barristers, CPS respondents and defence solicitors agreed that defence statements had not narrowed the issues at trial. While the point has been made that such statements are intended to avoid ambush defences, there is an important reason apart from that, which is sensibly to narrow the statement to know what is and what is not an issue. If everything is an issue, so be it. But if everything is not an issue, let that be identified at an earlier stage so that the court can sensibly manage the case.

When I have asked the question, the view almost to a man—or to a woman, I should say—has been that the present system of defence statements is on the whole not working.

My noble friend Lord Clinton-Davis asks me to think again. I assure him that it is a matter about which I have thought long and hard, as have other members of the Government. I shall then speak about the structure.

Lord Clinton-Davis: Before my noble and learned friend does so, he says that everybody who has been consulted agrees with the Government. I am afraid that that is not right. The Law Society, the Bar Council, Justice, and a host of others do not agree with the Government. What does the Minister have to say about that?

Lord Goldsmith: I said that everyone to whom I have spoken agrees that the present system of defence disclosure is not working effectively, despite what my noble friend Lady Kennedy says.

Defence disclosure has two functions. It is a trial management tool. It also presently informs the duty of continuing disclosure, which rests on the prosecution. The research has demonstrated that the system is not working.

Lord Justice Auld's comments are worth reciting because of their importance and the distinguished position that he holds, together with his great experience. Lord Justice Auld states:

    "I do not see it as an attack on the prosecution's obligation to prove its case and the defendant's right of silence that he should be required to identify the allegations or facts that he intends to put in issue. It does not require him to set out his defence other than by reference to what he disputes. If he intends to put the prosecution to proof of everything, he is entitled to do so. But if his intention is, or may be, to take issue only on certain matters, the sooner he tells the court and prosecutor the better, so that both sides know the battleground and its extent".

It was the distinguished Runciman Royal Commission, from which the 1996 provisions come, that considered that defence disclosure was justifiable and legitimate.

We are seeking to tighten up the sanctions for inadequate defence disclosure in a relatively modest way. These things can be done if a defence disclosure

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is inadequate. First, the judge has the power to warn the accused of the possible consequences of an inadequate defence disclosure. Secondly, the judge has the power to direct that the defence statement be given to the jury. Thirdly, the prosecution and other parties will be allowed to comment on defence disclosure failures, without the leave of the court in many cases. There is nothing there to prevent a defendant calling evidence, even if he has not given notice of it. Nor is there anything about denying the defendant the ability to raise a defence even though he has given no notice of it.

I note what is said by the noble and learned Lord the Lord Chief Justice, cited by the noble and learned Lord, Lord Ackner. With respect, however, I differ on this occasion from the proposition that the obligations on the defence are more arduous than those on the prosecution or that the sanctions are more serious. This is a very important point, so I will make it well. The obligation on the prosecution is not only to give the names of its witnesses, but to serve every witness statement on which it intends to rely and every document it intends to put before the court.

More than that, the prosecution is obliged to provide to the defence all the material in its possession that may be of assistance to the defence or undermine the prosecution even though the prosecution does not intend to rely on it. With respect, I must say that that is a far more onerous obligation than that on the defence to give details of the defence but not the witness proofs, and to identify witnesses it may intend to call.

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