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Lord Renton: I do hope that your Lordships will forgive me for intervening. I missed the first few minutes of this debate. There is one point on this clause which worries me. There is an obligation upon the defence to notify the intention to call witnesses. But

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must the defendant call those witnesses if he decides ultimately that there is no need for them to give evidence?

Baroness Kennedy of The Shaws: My noble and learned friend referred to Lord Justice Auld's report. He prayed it in aid to support the contention that the defence statement was not working. I would like to quote Paragraph 180 from that report.

    "As to the defence statement . . . the present requirements, if observed, seem to be adequate to enable identification of the issues . . . for the purpose of determining the scope and form of prosecution evidence required for trial. I have considered whether to recommend any additional requirements, for example, a general obligation to identify defence witnesses and the content of their expected evidence similar to where the defence is alibi or it is intended to call expert evidence for the defence. Whilst, as a matter of efficiency, there is much to be said for them, many would find them objectionable as going beyond the definition of the issues and requiring a defendant to set out, in advance, an affirmative case. And they would be difficult to enforce".

And so Lord Justice Auld did not recommend anything more than we have at present. Obviously one would like to see the defence statement observed more effectively, and that is down to the management of the courts by the judges. But Lord Justice Auld certainly did not suggest that there should be disclosure of defence witnesses and the contents of their expected evidence.

In the face of that feeling that the provision would be objectionable, I should like to hear from the Minister why the Government somehow find it unobjectionable. As my noble friend Lady Mallalieu said, it is objectionable because potential defence witnesses are often the very people who harbour, rightly or wrongly, a deep mistrust of authority and of the police in particular. Knowing that their details will be disclosed and that they may be investigated and interviewed by the police will provide a very powerful incentive for them not to come forward to assist the defence. That then deprives the defendant of relevant truthful evidence that might exonerate him. It is not a sufficient answer to suggest that the defendant would have the option of taking out a witness summons.

Therefore, in that situation there would be an erosion of the very delicate relationship that exists in order for the criminal justice system to function well and properly. Indeed, there is a very real risk of interference by the investigating authorities in the due administration of justice, and there is scope for intimidation of the witness by an over-zealous, or even unscrupulous, police officer. Therefore, we press upon the Minister our concerns, which are shared by professionals with many years of experience in the criminal court and the judiciary. We ask the noble and learned Lord to explain to us why, in the face of those concerns about this provision being objectionable, the Government are pressing on.

Baroness Anelay of St Johns: I do not have an overall hostility to the clause, but I agree with the noble Baroness, Lady Mallalieu, that there are some serious questions of procedure and practice here which need to be probed and which the Minister needs to clarify

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today. I agree with my noble friend Lord Brittan that the application of the provision will be out of the hands of this House once the Bill is enacted.

Reference has been made to the amendment in the name of the noble Baroness, Lady Scotland of Asthal—a government amendment—which follows Clause 38 and introduces a new clause concerning a code of practice for police interviews of witnesses notified by the accused. I hope that when the Minister comes to deal with that, he will bear in mind my concerns, which relate closely to the operation of Clause 33.

Reference has already been made to the fact that, because it is a code of practice, it is not on the face of the Bill in detail. However, the problem is that, in relation to the code of practice in the new clause, proposed new subsection (2) states:

    "The code must include (in particular) guidance in relation to",

such matters that include,

    "the attendance of the accused's solicitor at such an interview".

That is where the root problem occurs. One needs more than guidance; one needs assurance of that fact.

At the end of the list of items where guidance will be given, it is stated:

    "Any police officer who arranges or conducts such an interview shall have regard to the code".

When we go into something as significant as that, I believe it is necessary for the Government to reconsider the words "shall have regard to". Why should there not be a duty upon police officers to abide by the code? I know that that takes us forward to the government amendment, but I believe that it has a great bearing on how acceptable—or unacceptable—Clause 33 is in its operation.

Lord Goldsmith: I am grateful to those who have spoken in the clause stand part debate. I want to emphasise what the clause is not about before coming to what it is about.

My noble friend Lady Kennedy of The Shaws quoted from Lord Justice Auld's report. I remind the Committee that the passage that Lord Justice Auld was considering referred to the proposition that an additional requirement might be imposed. The report said that there would be a general obligation to identify defence witnesses and the

    "content of their expected evidence".

I am reading from paragraph 180.

We have not proposed that the content of defence statements should be included. Lord Justice Auld's comment, which was carefully considered by the Government and taken into account, has been accepted to the extent that we have not sought in the clause to impose an obligation to disclose the content of defence statements. It is limited to the identification of the name, address and date of birth of each such proposed witness. They are the identifying details. That is what the clause is about.

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Secondly, in answer to the question raised by the noble Lord, Lord Renton, it does not bring with it an obligation on the defence to call a witness who has been identified as someone they want to call.

Lord Renton: I thank the noble and learned Lord for giving way. If that is so, should it not be stated?

Lord Goldsmith: I do not believe that it needs to be stated because the only sanction that is provided is one in relation to a defence when the defence calls a witness of whom it has not given notice. There is no possible sanction in relation to the defence not calling a witness. Clause 38, which sets out what the sanctions are, identifies under subsection (2)(f)(iv) that there may be a sanction in terms of an inference being drawn where the defence calls a witness of whom notice has not been given. But there is no suggestion of a corresponding sanction where it does not call such a witness.

Baroness Kennedy of The Shaws: There are two matters on which I should like assistance. First, it may be that one is only asking that the defence discloses names and addresses, but what is the purpose of the interview if not to find out what the witness will say? Therefore, the content is ultimately disclosed in advance as the interview would be to no purpose if it were not to discover what the witness would say.

Secondly, the Minister said that there would be no sanction. One knows that if the accused gives evidence, the defence will be asked, "Are you calling Jimmy McGillycuddy, or Johnny Smith?". The list will be put to him and fun will be made of the fact that he may say that he does not know, or that he does not think they are being called. The jury will know that if they are not called, there must be some rationale for that.

Capital will be made by the Crown by its having that list available to it.

Lord Goldsmith: The latter happens already. It is commonplace that a defendant gives evidence that on such and such an occasion, events happened in the way that he said they happened. He will be asked, "You say that X, Y and Z were there. Are they coming to give evidence?". That is a point that is perfectly open to be taken as it stands. There is nothing new about that.

I am anxious to develop the points that I am making, although I am always happy to give way. On my noble friend's former point, in paragraph 180, Lord Justice Auld appears—it is always dangerous to construe what a judge has said—to have talked about a requirement on the defence to disclose not only the identity but the content of the statement that had been received from the witness.

My noble friend Lady Mallalieu dwelt on the circumstances in which the interview takes place. I shall come back to that point, as it is extremely important and in my respectful view the real and only point in relation to the clause. If in the course of that interview, the witness says what happened and that exonerates the defendant, it is a good thing that that

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has come out at an early stage. One presumes that the witness is someone who will give evidence in court and is happy in those circumstances to stand up and say, "This is what happened. It was not the defendant's fault".

I see a great difference between requiring the defence to disclose the statements it has taken and simply providing that, in certain circumstances, it should be open to others to interview that witness to discover what is said. In the courts of this land it has always been said the there is no property in a witness. That must be right. My noble friend Lady Mallalieu said that prosecution witness names and addresses are not given. That is right, but if the defence wants to interview a prosecution witness, it can always make inquiries through the good offices of the prosecutor in the CPS.

I will now turn to the purpose of the procedure. There is nothing conceptually new in what is being done. It is already the law that the defence is required to provide advance notice of two categories of witness—alibi and expert witnesses. The proposed procedure builds on that and is not a radical departure from existing legislation. Noble Lords who have spoken so far have not complained that the police currently browbeat or intimidate alibi or expert witnesses or prevent them giving evidence. Perhaps some anecdotal evidence will be given, but I have not heard any yet.

9 p.m.

Baroness Mallalieu: I thank my noble and learned friend the Attorney-General for giving way. It is precisely because of the experience with alibi witnesses that I raised my concerns. It is a matter of great concern. Those of us who practise in the courts have certainly had experience of this on a number of occasions. Some cases have ended up in the Court of Appeal. They arise because police officers, often without any warning, knock on the door of the house and interview a young person without any responsible person being present—certainly no solicitor or legal advice is available. The system does not work well, which is the very reason why I am grateful that there will be guidance. It is much needed. The system is by no means perfect.

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