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Criminal Justice Bill

8.34 p.m.

House again in Committee.

Clause 33 [Notification of intention to call defence witnesses]:

On Question, Whether Clause 33 shall stand part of the Bill?

Lord Dholakia: The clause inserts a new Section 6C in the 1996 Act, which imposes a new requirement on the accused to serve, before the trial, a notice giving details of any witnesses he intends to call to give evidence at his trial. Details of the witness's name, address and date of birth must be given to the court and to the prosecutor within a time limit specified in regulation made under Section 12 in the 1996 Act.

There have been a number of adverse comments, particularly from the Home Affairs Select Committee, which said that it is perhaps the most controversial provision of Part 5 of the Bill. At present, the defendant is required only to give advance disclosure of any alibi or expert witnesses. Clause 33 will extend that obligation significantly by requiring disclosure of the name, address and date of birth of every defence witness.

In a recent article, Michael Zander QC sets out a powerful argument:


It is not too difficult to imagine ways in which the police may seek to help a defence witness to "refresh" his memory, possibly to "lose" his memory, of events. Such things have happened in the past. During the Home Affairs Select Committee's recent inquiry into the conduct of investigations into abuse in children's

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homes, it came across a number of cases in which the police were said to have brought charges against a defence witness before trial in order to discredit him.

Coming from the Home Affairs Select Committee, that is a very powerful argument against the clause. It is important to recognise the recommendations the committee makes. It suggested that the Bill be amended so that where the prosecution wishes to interview a defence witness in advance of trial, it should be required to notify the defence and offer to interview the witness in the presence of the defence. It further suggests that any interview should be tape-recorded. It goes on to say that it would prefer to see a provision of this nature included in the Bill rather than left to codes of practice.

A number of criminal justice agencies have responded very strongly to the proposal that the defendant should provide witness details before trial. Justice comments that,


    "an adverse inference being drawn from a failure to do so will fundamentally undermine the presumption of innocence in the right of an accused person to remain silent".

The Bar Council says,


    "Clause 33 places an unnecessary burden on the defence which does nothing to improve the prospect of conviction of the guilty and has a number of deeply undesirable consequences".

The Law Society cannot see any benefit in this provision, but does anticipate difficulties, as do a large number of other organisations. The London Criminal Courts Solicitors' Association says:


    "The proposals that such a witness notice should be served during the relevant period demonstrates a lack of understanding of the practicalities of running a defence case".

Those are very strong arguments against the clause.

Baroness Mallalieu: I, too, have concerns about the way in which the provisions are intended to operate. I would be very grateful if the noble and learned Lord could give me some guidance as to what is being aimed at by the provisions.

We have gone a long way towards making it easier for witnesses to come to court and to give evidence in relation to prosecutions. We have taken steps to make it easier for them to give evidence via video links and the like to try and avoid their hanging about at court and being subjected to unnecessary or insulting cross-examination. If our intention is to ensure that witnesses come forward to give evidence so that the correct result is obtained, we should apply the same standards and give the same assistance to potential defence witnesses.

These provisions achieve, in a sense, quite the opposite. A criminal trial is dynamic and changing all the time. When one first receives the papers, one gets some indication of likely witnesses. At a later stage, it may be clear that some of them are no longer necessary. As the trial proceeds, witnesses for the Crown and the defence are jettisoned because their part of the evidence no longer becomes contentious, it no longer seems relevant, it has been admitted, or whatever. Therefore, the witnesses you believe you are going to call before the trial starts ultimately may play no part at all.

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Is it proposed that once the names and addresses and the other details of the defence witnesses are given to the Crown, those people are to be seen and interviewed by police officers? If so, there will be a large amount of wasted police time, with witnesses who ultimately play no part whatever. If there is intended to be parity between the Crown and the defence, it is curious that the addresses of the witnesses for the Crown are not given to the defence, although the defence is required to provide addresses to the Crown.

We have all heard of cases in which witnesses have been interviewed by police and often witnesses who one would not necessarily choose because they may be young, or have convictions, or may have been close to the incident. That is likely if, for example, they are witnesses to an assault, an affray or even a murder. It is easy, particularly for young witnesses, and those who sometimes have little command of English, to find it intimidating to be interviewed by anyone. It is difficult enough to persuade those witnesses to see a defence solicitor to take a statement without having a police officer knock on the door and ask to do so in their home.

While I welcome the outline of the code of practice, which we will debate at Amendment No. 126, that does not specifically provide for a solicitor to be present. Those of us who practise in the London courts have had experiences of an unfortunate nature, where youngsters have been interviewed without anyone else present, where the parents speak no English, and where they have been cross-examined by a police officer, often armed with pieces of information which at a later stage will properly be used by counsel in court. In effect, they have been browbeaten in their own homes into making a statement based on material they are shown and without proper legal advice. The result is that the statement is taken which either changes the story that had been given earlier or results in the witness saying, "I really can't remember". When the witness turns up at court, that statement is used against him.

There is considerable scope—I do not say this pejoratively—for police malpractice. In unscrupulous hands, the right to go and interview a witness, particularly a young or vulnerable one, without proper safeguard, would be a most powerful weapon in the hands of an unscrupulous prosecutor.

Leaving that aside, with the best will in the world, the most pleasant and amiable police officer knocking on the door, often in an area where the neighbours will be well aware of what is happening, wanting to know who is coming round and why, is enough for many parents to say, "I'm not letting my youngster go. I don't want anything to do with this. We will not allow him to attend court". There are all kinds of reasons why these provisions might prevent genuine witnesses coming forward—the very thing we try to avoid in relation to the Crown.

Furthermore, I had understood that notwithstanding the provisions of the Bill, the burden of proof remains on the Crown. What is the obligation,

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at any rate before the Crown makes its case in court, for a defendant to provide material? If there is a suggestion that these provisions are intended to deal with what I have heard about in this House but never come across in a courtroom—the so-called "ambush" defence—I can say only that the other provisions in the Bill which require considerable detail to be given in advance disclosure in statement form would surely put paid to any such ambush. Therefore if it is intended to put a burden on the defendant in some way at an early stage and before the Crown has called any evidence, it seems to me that that is a fundamental attack on the burden of proof. I would hope that the noble and learned Lord would be able to tell us what the reason is for this provision. Is it intended to interview all witnesses whose names are provided in this way? If that is not the case, what is the point for what would appear to be needless bureaucracy?

Lord Brittan of Spennithorne: During the course of the deliberations on this Bill, the word "balance" has frequently been prayed in aid. It is a reasonable concept to use in the handling of these matters. Therefore in looking at this provision it is reasonable to do what the previous speakers have done and try to weigh the benefits to be secured by this provision against the risks and dangers that flow from it. I have to say that I find myself wholly persuaded about the risks and not anywhere near being persuaded about the benefits. On the so-called ambush defence, what evidence is there of its use and how frequent is it? And what will be done with the material required as a result of this provision?

In a sense it is unfair to ask the noble and learned Lord to answer that question. All that this does is to require something to be done. The use that it is then going to be put to is out of the hands of this Chamber and of the legislature. Therefore, one can but speculate. But to speculate that the consequences would be unfortunate and unfair is not an unreasonable form of speculation. A witness who might have been persuaded with great reluctance to appear for the defence might take a very different view if he knew that he was instantly going to be given to the prosecution to be interviewed. That is not a far-fetched fear; it is one that makes sense for anyone who has had even the smallest contact with the criminal justice system over the years.

The bureaucracy that will arise is very real if the provision is used in any significant way. Without wishing to be unduly contentious at an inappropriate time, the other provisions in this Bill do not give me confidence in the Government's intentions. Their concept of balance is insufficient to give them the benefit of the doubt.


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