Clause 28 - Defence disclosure
Criminal Justice Bill
2:45 pm
Mr Simon Hughes (North Southwark and Bermondsey, Liberal Democrat)
The amendments relate to the issues of defence disclosure and bring us to the areas of disagreement that the hon. Member for Beaconsfield mentioned. Those disagreements are based on the principle of what the defence should do to resist the prosecution and, given that we shall have an adversarial system for the foreseeable future—no one suggests that we should change that—what the relative and different duties of the prosecution and defence are.
A perfectly reasonable argument for an inquisitorial system exists. The systems vary within the United Kingdom, although not as fundamentally as they do across the channel. However, there was no suggestion in the Auld review or elsewhere that we should change fundamentally to that system. That would require a far wider debate, and there has been no movement in that direction. I welcome the move towards a system under which the trial judge takes control of the case at a much earlier stage and manages the process. The Minister and Lord Falconer well know the process of court management and case management. The Home Office and the Lord Chancellor's Department have been exercising themselves, as have the Attorney-General and the Solicitor-General, about ways of ensuring that there are fewer administrative delays. It is one of the great frustrations in court when a case cannot proceed, not because of a major issue but because the procedure has not caught up with the timetable.
I made a practical suggestion when the Solicitor-General introduced the new head of the CPS in London at her chambers last year. It was that those who are instructed by the CPS to prosecute should see the papers in enough time to spot before the last minute whether anything is wrong. We must ensure that lawyers—not the in-house lawyers, the out-house ones—who are instructed are not landed with something and then, at the last minute, say that it is not ready or not in a fit state to proceed. Such cases often occur. Everyone is then stood down, and the police officers, the witnesses and everyone else who has had to turn up go back to base.
Amendment No. 185 would alter proposed new subsection (5B) of section 5 of the Criminal Procedure and Investigations Act 1996. It would change the proposal from one that allows the court to make an order either of its own motion or on the application of any party, to one that has the further qualification that there would have to have been representations from all parties. It is, self-evidently, to ensure that the defendant has an opportunity to have a say about what the effect of that disclosure by the defence would be. It follows the principle that we cannot have a just system unless people have the chance to make their case. The Minister might say that that is the intention
anyway. If it is, then people—not I, but future defendants and those representing them—need a guarantee that that is so. We shall hear whether the Government agree with the principle of the amendment.
Amendment No. 187 would remove from proposed new section 6A, which has to do with the contents of the defence statement, the requirement that the defence statement be a written statement indicating the matters of fact on which the defendant takes issue with the prosecution. To consider the issue, we need to think through what happens in order for a case to come to court. The CPS and the police collect evidence. There is then a debate between the two bodies and the CPS manages the collection of evidence. There are often conferences about the case. The police are sent to get more evidence. It is accumulated. The CPS then comes to a view that it is appropriate to proceed and serves the evidence that it has on the defence. There is a tight timetable for disclosure. Although they sign up in principle to wanting to be speedy and tight, practitioners sometimes find the timetable unmanageable in practice. In reality, the CPS falls down as much as the defence do. The White Paper noted that only 55 per cent. of cases were adequately prepared by the prosecution, so it is not a matter of the defence delaying things or being incompetent.
Then the defence have to receive instructions on the evidence that the prosecution submit and investigate it—it may be necessary to interview people and to find witnesses who can deal with allegations that have been made and counter things that have been said—and prepare the case. In practice, there is a substantial difficulty with the proposal. It will require the service of matters of fact at a time when the defence cannot know what matters of fact the prosecution are using. If such things are required in the initial statement on pragmatic grounds, there is a danger that many people will argue that the proposal cannot be complied with.
There is also an issue of principle. Should the defence be able to withhold alibis and to have parity as regards disclosing expert evidence? Both views are understandable. Are the Government really proposing that the criminal justice system should change from one in which the prosecution must put their case, and in which the defendant has nothing to prove because he is regarded as innocent from the beginning, to one in which the defence must keep countering the prosecution?
We moved some way down that road when we changed the rules governing the right to silence. I resisted that change, and I still do. People should not be obliged to say anything, and it should not be inferred from their silence that they are guilty or innocent. There should be no inferences, and it is perfectly proper that people are entitled to say nothing and that the jury will judge them on the basis of whether the prosecution evidence stacks up. If people say things, that will obviously be used in evidence and interpreted accordingly. I was therefore uncomfortable about the change, and the Minister will understand
that I and many others are even more uncomfortable about a move that requires defendants, who are, by definition, innocent in theory, and who may also be innocent in practice, to give so much additional information. Those are the issues relating to amendment No. 187.
Amendment No. 188 would leave out paragraph (d) of proposed new section 6A(1), which would require the defence to indicate
''any point of law (including any point as to the admissibility of evidence) which he''—
the accused—
''wishes to take, and any authority on which he intends to rely for that purpose.''
This is a pragmatic issue, rather than one of principle, but I wonder whether it is possible to comply with such a provision. It would trouble me if the system did not allow that to be done reasonably and properly.
Amendment No. 189 would leave out lines 3 to 6 on page 18, which refer to
''any information in the accused's possession which might be of material assistance in identifying or finding any such witness in whose case any of the details mentioned in paragraph (a) are not known to the accused when the statement is given.''
I absolutely accept the need to give alibi evidence and that those with an alibi should disclose it. We are talking about how the defence are obliged to assist the prosecution in putting together their case, and that is a matter of judgment rather than principle.
Amendment No. 136 is an attempt by both Opposition parties to remove subsection (4), under which matters will be settled through secondary legislation. The amendment suggests that we deal with them through primary legislation, because they are of that level of importance.
Amendment No. 190 would leave out lines 23 to 25 of page 18, which relate to the updated defence statement.
The motivation behind all the amendments is partly pragmatic, but it also relates to the fundamental relative rights of both parties. I share the Government's view that trials should not be a game, that the prosecution must put their case clearly, that the defence have an obligation to answer certain questions in advance and that alibi questions and the like must be put in the frame. However, we must be clear about the fact that the law should require the prosecution to prove everything beyond reasonable doubt, and that test has served us well. The practical applications of some of the proposals have not been worked out in a way that commands the confidence of the profession and of many of those whom it serves.
Sitting suspended for a Division in the House.
On resuming—