Clause 30 - Notification of names of experts
Criminal Justice Bill
5:00 pm
Mr Dominic Grieve (Beaconsfield, Conservative)
To my mind, this is an important clause, and it has given me a lot of anxiety. I do not know how the debate on the amendments will develop, but I suspect that it will serve as a clause stand part debate. I therefore hope that I will be forgiven for widening the scope.
In a delicate way, amendment No. 200 is a wrecking amendment. I do not mean that unkindly, but it effectively negates the thrust and bite of the clause.
I have tabled a couple of amendments, and I shall come to amendment No. 230 in a moment. It might just provide a compromise on a clause that I otherwise would find it difficult to support.
I turn to basic principles. We had an interesting debate a few minutes ago about whether the requirements of clause 29 would involve notifying the prosecution of the names and addresses of speculative witnesses of fact, whose evidence had not yet been tested. I was interested to hear the Minister's answer—I found it extremely reassuring—which was that that was not the intention. However, under clause 30 we have precisely that. The defendant who approaches an expert with a view to ascertaining whether that person might be in a position to give evidence that would help his case is required to reveal the fact that he has done so and to reveal the identify of that person to the prosecutor.
If one views witnesses of opinion and of fact as being identical in quality, the first major inconsistency is already creeping in. At the time when the requirement is being placed on the defendant to supply that information, there is no reason why he should have made up his mind whether to make use of that expert evidence. However, the matter goes further than that; the question is, what is an expert witness? In my view, an expert witness is a different animal from a witness of fact. He is brought in by the defence team, usually on the advice of the legal advisers, who want to know whether his professional expertise can provide evidence that could be placed before a jury—not to persuade the jury of a fact but to give information on which they can form their own opinion and judgment of the facts. I fail completely to understand the basis for this requirement.
What is the intention behind the clause, and what prompted the Government to believe that the provision was necessary? There may be a number of reasons. The first that I can think of—I detect that it may be the case, because I recall having read previous utterances of the Government on the subject—is that it is supposed to be an equal and level playing field. The prosecution will have a duty, if they approach an expert to back up their case who supplies a report that turns out to be unhelpful to their case, to disclose that information to the defence.
I do not think that that is a good analogy, however, because the duty on the prosecutor to make disclosure that we debated on clause 27 is the duty that lies upon the prosecutor as a minister of justice to ensure that no stone is left unturned, which includes taking points against himself, to ensure that justice is properly done during the trial. The duty upon the prosecutor is entirely different from the duty that falls upon those who represent a defendant. Their job is to listen to the defendant's case, to present his case in accordance with the facts, to challenge evidence in accordance with his instructions, and not knowingly to mislead the court on any matter; but they are subject to the defendant's instructions and the limits of his case.
The proposals drive a coach and horses through the legal professional privilege between a defendant and his legal representatives. If a defendant is in trouble he can give his legal representatives a case, which they think may be helped by expert opinion. However, if the expert opinion does not help that does not necessarily mean that the defendant has not been telling the truth; it merely means that they could not find an expert to help them.
What is the philosophical or practical reason for requiring the defence to divulge that information to the prosecution? It will make it very difficult for defendants and their representatives to decide whether they should seek expert help. That is the real mischief in this clause. Anyone advising a defendant would have to point out to him that, for example, an expert on how motor cars are constructed might be able to help him, but that if the expert could not help that might be used to the defendant's disadvantage.
What is the intention behind the clause? What use will the prosecution make of the information that they have been given?