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Division No. 2

CONTENTS

Anelay of St Johns, B.
Blatch, B.
Bridgeman, V.
Brittan of Spennithorne, L.
Carlisle of Bucklow, L.
Colville of Culross, V.
Cope of Berkeley, L.
Craigavon, V.
Crathorne, L.
Dholakia, L. [Teller]
Dundee, E.
Ferrers, E.
Geddes, L.
Hanningfield, L.
Harris of Richmond, B.
Hodgson of Astley Abbotts, L.
Hylton, L.
Kennedy of The Shaws, B.
Luke, L.
Maginnis of Drumglass, L.
Mayhew of Twysden, L.
Naseby, L.
Renton, L.
Roper, L.
Seccombe, B. [Teller]
Shutt of Greetland, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Ullswater, V.

NOT-CONTENTS

Ahmed, L.
Andrews, B.
Archer of Sandwell, L.
Barnett, L.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Borrie, L.
Burlison, L.
Campbell-Savours, L.
Chandos, V.
Clark of Windermere, L.
Crawley, B.
David, B.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Dubs, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Fyfe of Fairfield, L.
Gale, B.
Gilbert, L.
Golding, B.
Goldsmith, L.
Gould of Potternewton, B.
Grocott, L. [Teller]
Hollis of Heigham, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Jordan, L.
Judd, L.
Layard, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Pitkeathley, B.
Radice, L.
Simon, V.
Stone of Blackheath, L.
Taylor of Blackburn, L.
Thornton, B.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Whitty, L.
Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

14 Jul 2003 : Column 738

10.8 p.m.

Clause 34 agreed to.

Clause 35 [Further provisions about defence disclosure]:

[Amendments Nos. 114 to 116 not moved.]

Baroness Anelay of St Johns moved Amendment No. 117:


    Page 23, line 22, at end insert "having heard representations from all parties"

The noble Baroness said: This amendment would alter proposed new Section 6E of the Criminal Procedure and Investigations Act 1996. In its current form, the Bill would allow the court, either of its own motion or on the application of any party, to direct that the jury may be given a copy of the defence statement. Amendment No. 117 would add one further qualification to subsection (5)(a) in that there would have to be representations from all parties.

We received advice on this matter from the Bar Council and the Law Society, which believe that it is essential in order that the court may give the defendant an opportunity to have a say about what effect such disclosure would have on his or her case. Surely one should allow all the parties involved in the justice system to make their case.

The defence statement itself will be submitted very early on and, of course, may be extremely detailed. It will have been submitted with the implied authority of the defendant, who may not easily be contacted or he may have mental health difficulties or require an interpreter. Any of those may mean that there is some information of which the defence is unaware or about which it is perhaps not too content and which the defendant feels would harm his defence if it went before the jury.

The fact that this document may be given to the jury in its entirety will increase the pressure on the defence representatives. Of course, while we are fully supportive of early preparation and disclosure—we made that clear in our support of earlier clauses in this part—we are concerned that these proposals take no account of the constraints of time and resources and the timetables of other agencies involved, such as the police, the CPS and prison officers, or, indeed, the time constraints of the Legal Services Commission.

I should be grateful if the Minister could indicate whether funding will be available for the additional staff and earlier instruction of counsel that will be required as a result of this new regime. I beg to move.

Lord Goldsmith: I agree with the substance of what the noble Baroness has said in the first part of her

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observations, but I do not think that it is necessary. I am not sure that I understood the second part of her remarks, which may be my fault.

The amendment would include in Clause 35 a provision that before a judge gives a copy of a defence statement to the jury, he should hear representations from all parties. Clause 35 says that the judge can give the defence statement to the jury. I find it hard to believe that a judge would not want to hear representations from the parties before taking that step.

The courts make many orders during a trial, and judges will invariably look to the parties for representations as to whether or not the order should be made. I anticipate that a judge will always seek representations before making an order. However, I would object to putting it on the face of the Bill that, before making the order, representations have to be considered. That would then mean that every time we give a court a power to make an order, it must do so only after making representations. What will then happen when we do not include such provisions?

I hope that those remarks will reassure the noble Baroness on the fundamental point behind her amendment, and I invite her to withdraw it.

The noble Baroness then asked about timing and payment for defence counsel. The particular provision on giving the defence statement to the jury does not seem to me to involve additional work on the part of the defence team, which, at the moment the judge considers giving it to the jury, will have to make a representation. But that will simply be part of the defence's preparation. I cannot give a further answer. I probably misunderstood the point.

Viscount Colville of Culross: I shall just say a word to support the noble and learned Lord the Attorney-General. I am sure that he is right that before a decision is made about giving a statement to the jury, counsel on both sides would be asked for their views. No judge would do something like that without seeking some sort of agreement—or disagreement, in which case he would have to adjudicate. I should have thought it basic to the running of the court that that should happen.

Baroness Anelay of St Johns: I am grateful to the noble and learned Lord for his response. This amendment was tabled as the direct result of a briefing from the Law Society. It is the Law Society's own drafting. I shall check its response to the Minister's remarks. In the last debate, my noble and learned friend Lord Mayhew of Twysden referred to occasions upon which one may not seek expert advice, but it can be volunteered. Such expert advice was volunteered by my husband on Saturday evening, and it concurred entirely with what the noble and learned Lord said, so I am not entirely surprised. However, I will check with the Law Society whether we should take this matter any further on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Clause 35 agreed to.

Clauses 36 and 37 agreed to.

Clause 38 [Faults in defence disclosure]: 10.15 p.m.

[Amendment No. 118 not moved.]

Lord Thomas of Gresford had given notice of his intention to move Amendment No. 119:


    Page 25, line 6, leave out ", (3) and (4)" and insert "and (3)"

The noble Lord said: This amendment is to be taken with a later group. For the moment I will not move it.

[Amendment No. 119 not moved.]

Lord Thomas of Gresford moved Amendment No. 120:


    Page 25, leave out lines 40 to 45.

The noble Lord said: The purpose of the amendments in this group is simply to exclude from Clause 38, which deals with faults in defence disclosure, references to the failure of the accused to give a witness notice in time in relation to witnesses, or calling a witness who has not been adequately identified. In defending somebody, it is difficult to decide in advance whether a witness will be called. Almost by principle, defence witnesses are not called unless it is absolutely necessary so to do.

Furthermore, issues arise in the course of a trial that the defence has not expected. A witness may say something that calls for a riposte. It is not a sufficient safeguard for the court simply to have regard to whether there is any justification for the failure. That is not a sufficient safeguard in the sort of circumstances that I envisage.

We are opposed in principle to punishment for failure to give notice of defence witnesses. It has never happened before and should not be allowed by this Bill. I beg to move.

Baroness Anelay of St Johns: I support the noble Lord, Lord Thomas of Gresford, on the three amendments to which I have put my name, but I am not proceeding with Amendment No. 122, which I tabled.

Lord Goldsmith: I speak to Amendments Nos. 120 and 121, not to Amendment No. 122, which is not being proceeded with, to Amendments Nos. 123 and 125, and to Amendment No. 126, which is in the name of my noble friend Lady Scotland.

We had thought that Amendments Nos. 120, 121, 123 and 125 were consequential upon the deletion, had it happened, of Clause 33, which requires the defence to give notice of intention to call defence witnesses. Of course, if the clause had gone, it would make sense no longer to include the provisions to which the amendments refer. I understand from what the noble Lord, Lord Thomas of Gresford, said in moving the amendment that he proposes that, although Clause 33 stands—that is to say, there is still an obligation on the

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defence to give notice of defence witnesses—no sanction whatever should attach to a failure to comply. I respectfully suggest that that would be inappropriate.

Important safeguards are provided, including that in proposed new subsection (6), which provides, where there is a failure arising under proposed new subsection (2)(f)(ii), that leave of the court would be required before comment could be made. Now I read the detail, that is not as relevant as I thought when I began that proposition.

Surely, it makes sense that if there is a good reason why a new witness has been called—there is no failure to call a witness but a new witness is called for a good reason—no adverse inference will be drawn and there can be no harm in the provision. On the other hand, if the defendant had had all opportunity and had no justification for suddenly producing a witness who could plainly have been identified before, common sense suggests that people would say, "Now you say that this man was standing next to you when the incident took place, saw everything, and that you travelled home with him. Why on earth did you not say that before? If you have a good reason for that, let's hear it. If not, an inference is likely to be drawn".


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