Criminal Justice Bill
Lord Goldsmith (Attorney General, Law Officers' Department; Labour)
I do not recall using the expression "levelling the playing field". I have not suggested that the defence obligation should be the same as prosecution obligations at all. I was making it clear that the sanction proposed—being able to invite the jury ultimately to draw an inference from a change of case—is modest. I challenge the proposition that the obligations placed on the defence are more onerous than those on the prosecution. They are plainly not.
What are the sanctions that may be imposed on the prosecution if it fails to give disclosure? I deal with this, despite what the noble Baroness said about my experience, every day of the week. Prosecutions are constantly in difficulties because a disclosure has not been made which, it is alleged, ought to have been made and an application is made for the trial judge to stop that case. Cases are being stopped completely. People are being acquitted because of a failure by the prosecution to give disclosure. Evidence is excluded on the grounds that there has not been proper disclosure by the prosecution and that therefore it should not be admitted. A strong sanction is placed on the prosecution; a much stronger sanction than that of inference.
Many people outside Parliament would say that it is common sense to draw an inference in appropriate cases that a person's defence is not to be believed because they first said one thing and then said something else. It is one of the tools by which we in everyday life judge the veracity of a person. If they first say that there was an accident and then they say, "I didn't do it at all", many would say that we ought to be able to take that into account. At the moment, judges would allow that to happen. I do not want to go further than is appropriate to deal with a particular clause.