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The noble Lord said: My Lords, although the noble and learned Lord, Lord Ackner, did not move his amendments relating to witnesses other than expert witnesses, we took the view on these Benches that the safeguards contained in the Bill deal with the problem. We are content that a defence statement should be rather fuller than it is at present, so long as it is not regarded as a pleading.
We have a different point of view about expert witnesses. If the Government's purpose is to find out whether the defence has instructed expert witnesses, there is really no problem, as in the generality of cases expert witnesses who are instructed by the defence have to co-operate with the expert witnesses of the prosecution. Generally speaking, the defence expert witnesses are examining material in the possession of the prosecution. For example, it will be necessary for a defence expert on fingerprints to have access to the fingerprints themselves, which will be in the possession of the police. Similarly, if an expert pathologist is called, he will without question consult the pathologist for the prosecution and will have access to his file and his findings. Very often, post mortems are carried out together. With DNA, too, it will be necessary for a DNA expert called by the defence to have access to material in the hands of the prosecution.
It is only in a rare case that an expert witness will not be known to the prosecution in any event. Therefore, I have no objection to the disclosure of the identity of expert witnesses to the prosecution, as it almost always happens anyway. I do, however, object to the possibility that the prosecution could in some way rely on a notice given under these provisions and should put before the jury the fact that the defence has consulted an expert whom it has not called. That would leave the jury completely open to speculation as to why the defence expert was not called. Perhaps he was not available on the day. Perhaps he agreed with the prosecution. He may not be called by the defence for all sorts of reasons. If it were possible for the prosecution in its final speech or the judge in summing up to say, "You know, members of the jury, that the defence has consulted experts, but you have not heard from them", that would be entirely wrong in principle. That is why I maintain my opposition to this clause. I beg to move.
Baroness Mallalieu: My Lords, I, too, am very concerned about this clause. One sometimes hears it said that the defence trawls around looking for an expert who will say what is wanted. That certainly is not my experience. Indeed, most defendants in criminal trials are legally aided and the legal aid authorities require considerable persuasion before they will grant legal aid for a second expert if one has already reported. I am concerned and should be grateful if the Minister could tell me what is proposed to be done with the details provided by these notices.
Experts may be instructed for a variety of reasons, but not necessarily with a view to calling them. For example, counsel may want expert advice to deal with an aspect of the case that has not been raised by the defendant but which troubles counsel. Counsel may merely wish to be reassured that there is no possible line of defence in that avenue, or he may require further detailed examination of a prosecution expert's report in order to assist him with cross-examination. So there may be experts, perfectly properly instructed, who are not intended ultimately to be called at trial. Will the Minister please tell me what is proposed to be done with the details when they are handed to the prosecution?
Lord Renton: My Lords, I wish to support this amendment. I do so because in many cases the expert witness will be a medical man. I happen to be the son of a medical man, and I know what excessively hard and busy lives they lead. It is often difficult to get hold of a medical man who may have the necessary expert evidence to give until the last minutefrom the point of view of the defence. It would be a travesty of justice if we prevented the accused relying on medical evidence that he finds late in the day simply because he is required by statute to give advance notice of the medical evidence by the expert which has to be given. I think that that would be unfair on the accused, so I support the amendment.
Lord Ackner: My Lords, I, too, should like to support the observations of the noble Lord. My recollection when summing up to a jury was to tell them not to speculate. This seems to me to invite speculation, and that surely must be wrong.
Lord Kingsland: My Lords, I rise to support the amendment moved by the noble Lord, Lord Thomas of Gresford. We have already spoken to it both in Committee and on Report; there is no difference between the noble Lord and ourselves on the issue that he raised. In our view, the crucial distinction is between, on the one hand, the provision of names in a notice and, on the other hand, the reference by a judge to those names in the course of the proceedings. I hope that the noble and learned Lord the Attorney-General will be able to reassure us on those grounds.
The Attorney-General (Lord Goldsmith): My Lords, as the noble Lord, Lord Kingsland, said, this clause has been debated extensivelyon no fewer than three occasions, I think; indeed, we had a Division on it in Committee. I hope that in the light of the concerns previously expressed about this, and those that have been expressed today, it might help the House if I set out what the clause does and does not do.
Clause 35 will insert a new Section 60 into the Criminal Procedure and Investigations Act 1996. It requires the defence to notify the court and the prosecutor in advance of the trial of any expert consulted by the defence but whom the defence does not intend to call as a witness. There is no requirement
Clause 39, which introduces a revised Section 11 of the Criminal Procedure and Investigations Act 1996, deals with faults in defence disclosure generally. However, in the case of the notification of defence experts not called as witnesses, the prosecution will not be able to invite the jury to draw an adverse inference or otherwise comment to the jury on either the failure of the defence to comply with this provision or the fact that an expert has been consulted and not used as a witness.
I hope that that clear statement gives the reassurance for which noble Lords were looking as to the limits to which this clause could be put and particularly what it could not be used to do. I would add only this. We accept that the problem to which this is directed would affect only a small number of cases where the defence is self-funded. I have accepted that proposition beforethat legal aid acts as an inhibitor. However, there will be some self-funded defendants who are well financedwhich, sadly, includes some who have accrued that wealth from criminal activity. In those cases this will be a modest but helpful provision to add to the defence disclosures.
Lord Thomas of Gresford: My Lords, I am very grateful to the noble and learned Lord the Attorney-General for that clear statement which can leave no one in any doubt about what this provision means. I know that there have been anxious deliberations about this clause following our earlier debates. I thank the noble and learned Lord for participating in those discussions. Having regard to that, I beg leave to withdraw the amendment.
The noble and learned Lord said: My Lords, this group of amendments refines the prosecution appeal rights already set out in the Bill. Before I go on to discuss the substance of this group, I should first like to thank the Opposition for allowing us to table these amendments again for the consideration of the House. That we are now doing so is the result of extensive discussions with the Opposition Front Bench. I am most grateful to them for their readiness to meet and go through these matters. I hope very much that in the intervening period we have been able to allay their concerns about the provisions.
While similar amendments were not approved by the House on Report I can confirm that it is entirely proper for the present amendments to be introduced at this stage. We do so on the basis that we discussed and addressed with the Opposition Front Bench their concerns about the overall scheme. They have confirmed that they did not have, and continue not to have, objections to these essentially refining amendments. The House authorities have confirmed that they also are content that we can proceed in these circumstances.
On the substance, I should note in passing that the rubric of Clauses 49 and 50 seems to have suffered an attack of the gremlins. I am assured by those responsible for these matters that the faulty wording will be rectified before the Bill progresses to its next stage.
Much of the substance of these amendments merely refines provisions that are already in the Bill. In a few instances substantive changes of detail are made, but I have already provided a full explanation of the changes in question in an earlier debate and I shall not detain your Lordships by tediously repeating explanations with which the House will already be familiar. My earlier comments still hold good. However, I shall draw your Lordships' attention to the new change in Amendment No. 44. The amendment specifies the conditions under which the Court of Appeal can overturn a judge's ruling under the Bill. The rule is a general one; it will apply whether the ruling is a formally terminating ruling, a de facto terminating ruling or an evidentiary ruling. It will prevent the Court of Appeal overturning a judge's ruling unless the ruling is wrong in law, involves an error of law or principle or is a ruling which it was not reasonable for the judge to have made.
Prior to this amendment the Bill was silent on the framework within which the Court of Appeal will operatea feature of the provisions which attracted some criticism in Committee and on Report. We listened carefully to those concerns and this new clause now sets out a framework.
The vast majority of practitioners and commentators who have studied this area are firmly of the opinion that a prosecution appeal against the judge's terminating, or de facto terminating, ruling is just, equitable and long overdue. It is a matter of serious concern that defendants have had a right of appeal against their conviction for almost a century while the prosecution has had no right to challenge a judge-ordered acquittal, no matter how manifestly unjust such a ruling may be on rare occasions.
Lord Kingsland: My Lords, I in turn should like to thank the noble and learned Lord for being prepared to engage in a number of discussions between Report and Third Reading, which I trust your Lordships will agree have led to a creative conclusion.
I accept the noble and learned Lord's view that in principle there is no difference between terminating rulings and evidentiary rulings and that, where appropriate, a right of prosecution appeal ought to be allowed. Our concerns about this were twofold: first, the likely volume of appeals that would ensue from such an initiative; and, secondly, the danger that some of those appeals would lead simply to the Court of Appeal second-guessing the proper exercise of discretion of the trial judge.
As the noble and learned Lord the Attorney-General rightly said, Amendment No. 44 resolves both those problems. It is a discipline on the volume of prosecution appeals to the Court of Appeal Criminal Division. At the same time, the defined circumstances which justify an appeal are wholly proper:
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