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Viscount Colville of Culross: The same point arises again. I do not know whether the noble Lord, Lord Thomas of Gresford, would agree with me, but the drawing of inferences is not a matter that goes undiscussed before the judge directs the jury. There is often occasion to discuss how that will be put. Indeed, that is to some extent consolidated in the guidance given to Crown Court judges. I should have thought that common sense would indicate that if there was a good reason why the witness had not been caught before, that would be aired in the absence of the jury between the parties in the court and, very likely, no adverse inference would be put before the jury. I may be wrong about that, but that is certainly how I would have dealt with that.
Lord Hylton: Earlier, the noble Lord, Lord Brittan, asked how often ambush defences occur and how often they succeed. It might be appropriate to our consideration of the amendment if the noble and learned Lord could answer that question.
Lord Goldsmith: I am happy to do that with such information as is available to me this evening. It goes back a little bit, but a Crown Court study was conducted for the purposes of the Royal Commission on Criminal Justice under the chairmanship of Lord Runciman. According to research undertaken then, when asked, prosecution barristers considered that there had been an ambush defence in 7 per cent of cases in which there was a substantive reply. The Crown Prosecution Service, looking at a different number of cases, put the figure at around 10 per cent. The police considered that there had been an ambush defence in a larger number of cases, but I should make it clear that the sample of cases was different. Prosecution barristers said that some 41 cases out of 601 involved
The figures given in the course of this research study indicate that, in the views of those askedthe police, prosecution barristers and the CPSthere were ambush defences in a significant number of cases.
I should have spoken to Amendment No. 126. If noble Lords permit, I shall do so now before moving it formally in due course. The amendment introduces a new clause, adding a significant safeguard to the requirement for the defence to provide advance notice of witnesses. It provides for any police interviews with witnesses to be disclosed to the prosecution under the new procedures to be governed by a code of practice. In an earlier part of this debate I indicated the areas covered by that code.
The new clause addresses concerns raised by the House of Commons Home Affairs Select Committee about the risk of undue pressure being put on defence witnesses. The committee recommended that any such interviews should be covered by a code of practice, and that is what is proposed. I hope that the clause will be welcomed by all sides of the Committee.
Lord Hylton: Earlier this evening the noble and learned Lord the Attorney-General said that a record kept by the police of interviews with defence witnesses whose names had previously been disclosed would be given both to the witness and to the accused. I do not see any reference to that in the proposed code of practice. How is this to be dealt with?
Lord Goldsmith: The amendment sets out the enabling powers for a code of practice; it does not include in its terms the code of practice itself. I was referring to an indicative code of practice, of which notice had been given, so I believed, to a number of noble Lords. However, I know that the noble Baroness, Lady Anelay, said earlier that she had not received a copy. I do not know whether that indicates that there has been a more general failure of disclosure. The letter indicates that it had been copied to all noble Lords who attended the Second Reading debate. I cannot immediately recall whether the noble Lord, Lord Hylton, did so, but I shall certainly ensure that a copy of the letter is sent to him very soon. He will then see the indicative provisions that we have in mind.
Lord Thomas of Gresford: I wish to comment first on ambush defences. I am not surprised that the figures differ as to whether it is the prosecutor or the police coming to the conclusions just set out by the noble and learned Lord. It depends on what is meant by an ambush defence. It happens frequently in a case that facts come to light or circumstances change which were not expected by the prosecution. For example, the prosecution may have one version of what happened during an interview, but when the defendant comes to give his evidence he says that for one reason
My second point concerns the code of practice. I would be grateful if the noble and learned Lord could tell us whether it will apply equally to alibi notices, or the equivalent of alibi notices in the defence statement. A problem that arises in practice with the police interviewing alibi witnesses is that they have in their possession a statement which they do not disclose, saying that there are public interest reasons for not doing so. The defence is then more or less obliged to call its alibi witnesses blind, not knowing precisely what is set out in the statement that the police have obtained. If the code means that all statements taken from defence witnesses, including alibi witnessesand, of course, interviewswill now be in the hands of the defence, that is a great advance which I certainly welcome. Can the noble and learned Lord enlighten me on that?
My third and final point in relation to the amendments that I have moved and spoken to is that the clause envisages the disclosure of the defence statement to the jury. Up until now it has been impossible to get a defence statement before a jury even if one wants to. In a particular case in Liverpool the defence wanted to do that but the judge refused leave for that to happen. I take it that defence statements will be disclosed to the jury if the jury is to be invited to draw some inference from them. I certainly agree with the noble and learned Lord that there will be discussions between counsel and the judge before the judge invites the jury to draw inferences of that kind. That is what happens in the usual course of events.
"CODE OF PRACTICE FOR POLICE INTERVIEWS OF WITNESSES NOTIFIED BY ACCUSED
In Part 1 of the 1996 Act after section 21 there is inserted
"21A CODE OF PRACTICE FOR POLICE INTERVIEWS OF WITNESSES NOTIFIED BY ACCUSED
(1) The Secretary of State shall prepare a code of practice which gives guidance to police officers in relation to the arranging and conducting of interviews of persons
(a) particulars of whom are given in a defence statement in accordance with section 6A(2), or
(b) who are included as proposed witnesses in a notice given under section 6C.
(2) The code must include (in particular) guidance in relation to
(a) information that should be provided to the interviewee and the accused in relation to such an interview;
(b) the notification of the accused's solicitor of such an interview;
(c) the attendance of the interviewee's solicitor at such an interview;
(d) the attendance of the accused's solicitor at such an interview;
(e) the attendance of any other appropriate person at such an interview taking into account the interviewee's age or any disability of the interviewee.
(3) Any police officer who arranges or conducts such an interview shall have regard to the code.
(4) In preparing the code, the Secretary of State shall consult
(a) to the extent the code applies to England and Wales
(i) any person who he considers to represent the interests of chief officers of police;
(ii) the General Council of the Bar;
(iii) the Law Society of England and Wales;
(iv) the Institute of Legal Executives;
(b) to the extent the code applies to Northern Ireland
(i) the Chief Constable of the Police Service of Northern Ireland;
(ii) the General Council of the Bar of Northern Ireland;
(iii) the Law Society of Northern Ireland;
(c) such other persons as he thinks fit.
(5) The code shall not come into operation until the Secretary of State by order so provides.
(6) The Secretary of State may from time to time revise the code and subsections (4) and (5) shall apply to a revised code as they apply to the code as first prepared.
(7) An order bringing the code into operation may not be made unless a draft of the order has been laid before each House of Parliament and approved by a resolution of each House.
(8) An order bringing a revised code into operation shall be laid before each House of Parliament if the order has been made without a draft having been so laid and approved by a resolution of each House.
(9) When an order or a draft of an order is laid in accordance with subsection (7) or (8), the code to which it relates shall also be laid.
(10) No order or draft of an order may be laid until the consultation required by subsection (4) has taken place.
(11) A failure by a police officer to have regard to any provision of a code for the time being in operation by virtue of an order under this section shall not in itself render him liable to any criminal or civil proceedings.
(12) In all criminal and civil proceedings a code in operation at any time by virtue of an order under this section shall be admissible in evidence.
(13) If it appears to a court or tribunal conducting criminal or civil proceedings that
(a) any provision of a code in operation at any time by virtue of an order under this section, or
(b) any failure mentioned in subsection (11),
is relevant to any question arising in the proceedings, the provision or failure shall be taken into account in deciding the question.""