Clause 29 - Notification of intention to
Criminal Justice Bill
4:30 pm
Mr Simon Hughes (North Southwark and Bermondsey, Liberal Democrat)
The amendments relate to an important issue, which we touched on during the previous debate. The clause is about how, when and to
what extent the defence must indicate the witnesses who will be called. The amendments, which are probing, would seek to make it optional rather than mandatory that the accused should give the court and the prosecution notice of whether he intends to give or call any evidence at trial, and if so what.
Amendment No. 196 tries to raise the question of what would be appropriate if some details of evidence have to be given. At the moment, the general proposition is that the accused must give the name, address and date of birth of each proposed witness. That raises the issue that we touched on in the last debate, in which the hon. and learned Member for Redcar intervened. The guidelines are helpful, but there is still considerable concern that the prosecution—to be honest, the police rather than the prosecution—are put in a relatively favourable and influential position by such disclosure because it goes further in assisting them than it does the defence.
I raised the question earlier of the difficulty of getting people to give evidence. Many are reluctant to give evidence for the prosecution, for reasons that we know; but people are often unwilling to give evidence for the defence for similar reasons. For instance, those with a criminal past may be particularly reluctant to be exposed in the witness box, although they may have a clear story to tell and a perfectly good reason for telling it. Why cannot there be equivalence?
We have now established that when the accused signs the initial document it becomes the statement in the bundle of prosecution papers, and it will include names, which may or may not be sufficient clearly to identify the prosecution witnesses. Why cannot we limit the obligation to the other side, so it gets only the name? I do not understand the argument, except for the fact that it may allow the police quickly to check. The police and the prosecution have the capacity to access information in a way that is not open to the defence. The police have access to the police national computer, to the database and other files; they can easily track and trawl through the names. If the defendant is named John Smith, he could be one of a huge number of people, but those with less common names will be far more easily tracked down. All those who have written to me and other members of the Committee, whom I anticipate have a professional interest in the matter, have expressed a concern about the imbalance of the proposal.
Amendments Nos. 198 and 199 are similar to amendment No. 195, which would make optional what is now mandatory.
Amendment No. 197 was tabled jointly by the two Opposition parties. It raises the question of how far we should expect the defence to go. This is where I think we may have crossed the line between the interests of justice and those of the prosecution. New section 6C(1)(b) states that the accused ''must''—he has no choice—
''provide any information in the accused's possession which might be of material assistance in identifying or finding any proposed witness in whose case any of the details mentioned . . . are not known to the accused''.
Apart from the protection of witnesses, there are two other practical points. Many potential witnesses are not needed in the end. We touched on that before. There are huge numbers of trial calls, when witnesses are lined up, but the case never gets that far. They are never needed. Perhaps the prosecution chief witness does not come up to proof.
The people involved, who are already nervously on the boundaries of the criminal justice process and would prefer not to be there at all, but have been asked by the defence to give evidence and are willing to do so if pushed and encouraged—or, sometimes, of course, required to come by subpoena—might never be used as witnesses. There is a practical question about handing over information. Witnesses who are persuaded to go that far are potentially much more exposed to police scrutiny, but their evidence may then not be used.
Secondly, although I would be grateful for more information, my understanding is that what are called ambush defences are rare. I did not see in the Auld report, and I do not remember seeing in any of the other preliminary work, anything to suggest that it is a common feature of the criminal justice system for unexpected witnesses to bounce in to tell a story that was entirely unpredicted. I am not talking about alibi evidence, but about other people giving evidence, such as that they were present on the day in question. If I am wrong about that, and if there is a real, recurrent and significant cause for concern that the provisions would answer, the Minister should tell us. I ask Ministers to consider sympathetically a proposal to examine the wording again.
In an ever evolving trial, as in the ever evolving proceedings of a Committee, issues may change, and those that were not expected to have much importance grow bigger. However, as the hon. Member for Beaconsfield pointed out, defendants often do not face up to all the questions that they should face up to. I used to see huge numbers of people who, having been asked the key questions at our first meeting, would, at court, just before the trial or sometimes after it had begun, suddenly think of a crucial fact or witness. The memory might be prompted by seeing someone in court. To phrase it in a rather clichéd way, the more disordered the life of the defendant, the less easy it is for him to tell his representative how to prepare the case.
The same is not true for those running the prosecution. They do what they do all the time—it is their job. The police are part of the evidence process in the criminal justice system. The staff of the Crown Prosecution Service, doing their daily job, are paid by the taxpayer. The people who turn up at court are paid by the taxpayer to do so. On the one hand there are those who are engaged in such activity all the time, and on the other there are people who are not, and who often have not confronted the practicalities of what they are being required to do. Therefore it seems to me that we should proceed with great caution. We should ensure that we do not prejudice a defendant by imposing an obligation that he cannot—or at least not easily—fulfil. He should not be obliged to do something that would prejudice him or the witnesses.