I beg to move Amendment No. 193, in

Clause 31, page 20, line 10, after 'party', insert 'having heard representations from all parties'.

With this we may take Amendment No. 231, in

Clause 31, page 20, line 13, at end add 'and that it would be fair in all the circumstances so to do.'.

The Amendment relates to defence disclosure where the defendant's representative agrees

to a statement on behalf of the person represented, but without his express authority. It is a probing amendment, designed to place on record the importance of allowing legal argument about whether it is proper and appropriate to give the jury a defence statement to which the defendant has not agreed. In some circumstances, a defendant may not be physically present or it may be impossible to get agreement because the defendant is unwilling or the jury change their mind. Sometimes the defendant may not understand, and under the new system the defence are required to provide a statement, but the decision may be taken by the legal representative or with the agreement of the defendant, which might subsequently be withdrawn.

The court adjudicates on whether the statement should be shown to the jury and protection is relevant because of the risk of adverse inferences being drawn from it, particularly if it is shown to be inconsistent with later developments. The danger is that the defendant might be unjustifiably prejudiced by an interpretation put on a document produced and served on his behalf. The amendment would ensure that that argument could be put before the court.

The hon. Member for Beaconsfield suggests a second rider in amendment No. 231. It was argued earlier that the application of such measures would apply more commonly in complex fraud cases or when many defendants were involved. For practical reasons, it often proves difficult to take instructions on all aspects of the prosecution case and secure agreement to everything in a statement. It is a lesser matter than the previous one, but again we must be careful not to prejudice the defendant.

Amendment No. 193 is a probing amendment, similar to those debated earlier. It would be extraordinary if, during the course of determining whether the jury should have a copy of the defence statement, all the parties were not heard. I expect them all to be heard, and I hope that the Minister will assure us that they will.

On the second issue, the matter goes a little further. I said that there might be circumstances in which it could be useful for a jury to see a defence statement. However, we must be careful that we do not end up having trial by defence statements in place of trial on the evidence that is presented to the court. Will the Minister outline the circumstances in which he would expect a statement to be placed before the jury, so that we can understand why the Government thought that this Clause was necessary? Presumably, ideas or examples have been put to the Government of times when to show a jury a defence statement would be of practical benefit, instead of causing injustice.

Although we agree with the principle behind the amendments, we do not consider them necessary. In the process of offering reassurances, I hope that I shall be able to demonstrate that.

To echo our earlier discussion, judges will invariably wish to consider representations from all parties before they direct that the jury should be given a copy of the defence statement. For the reasons that I gave earlier, to have to provide in statute a reference to

the need to consider representations throws into doubt all the other cases in which such decisions must be taken. As far as the Amendment needs to be considered, it could be covered by the rules of court. I hope that in making an identical point to the one that I did earlier, I can reassure the hon. Member for Southwark, North and Bermondsey.

As far as the amendment moved by the hon. Member for Beaconsfield is concerned, the judge will always take into account the need to ensure a fair trial. The hon. Gentleman's amendment is worded:

''that it would be fair in all the circumstances to do so.''

I am sure that judges would take offence at any suggestion that they would not consider whether it would be fair in all the circumstances to decide to give the jury a copy of the defence statement. Therefore, I genuinely do not think that the amendment is necessary. As to the circumstances, the jury may wish to consider arguments that have been made on whether adverse inference should be drawn.

I confess that I was surprised when I discussed the matter in more detail with officials before the debate—there may be an argument for saying that, in general, it might help juries to see defence statements. I was puzzled by the argument that to have a trial based on the defence statement, rather than on hearing the arguments, was a problem.

I am not a lawyer and I may be treading in dangerous waters, but, given the way in which most of us now take decisions, and the ways in which Ministers operate on the basis of submissions and then discussions with officials—similar to a trial—I have no difficulty with the argument that, in some circumstances, the judge might decide that to have access to the defence statement, alongside listening to the arguments presented at the trial, would help the jury to consider the case. That might allow a practice of giving documentation to juries to develop in the court.

I see no conflict there; I do not see how giving the jury a prepared defence statement could get in the way of a fair trial or the consideration of arguments that are presented orally in court.

There is a problem, which returns to something that was said earlier about privilege against self-incrimination. We have some clear rules in our law about drawing an adverse inference from silence. We must give clear warning to an individual about the consequences of saying something. That happens all the time in police stations—defendants are cautioned. I see no sign in part 5 of defendants being told anything along the lines of, ''you are required to provide a defence statement, but we must warn you that if you do so and evidence emerges at trial that is at variance with your defence statement, it might be placed in front of the jury so that they can note the discrepancies.'' There is no such provision. It would be unfortunate if it were to become a practice, although I accept that in some contexts, such as consideration of a defendant's previous witness statement, it would be proper.

Can the hon. Gentleman assist me? Are written alibi notices ever presented to juries? There might be circumstances in which an alibi that was given at an earlier stage was departed from. Are such notices admissible?

I confess that I have no recollection of ever having been involved in a case in which the alibi notice has been read. I suspect that it cannot be. I can give another example of something that cannot be used, because in younger, ignorant days as a prosecutor, I tried to get it in. That was the contents of a defendant's legal aid application, which was completely at variance with the evidence that he gave in the witness box about his means. It was massively prejudicial, but the judge rightly pointed out to me that there was a rule that prohibited any examination of the defendant upon the contents of his legal aid application.

Many categories of documents cannot be used by prosecutors for the purpose of discrediting defendants. Clearly, in this case, the Government's intention is that the defence statement is not simply a means of alerting the prosecution to the defendant's case but may also be used, in not very clear circumstances, as evidence that could be placed before the jury as part of the prosecution case against him. If the defendant wanted to adduce the evidence of his statement, there would be nothing to stop him from doing so.

Therefore, my question is: are we sure that we have resolved the issue, or are we going to leave it to the judiciary to protect defendants' interests? The constant widening of the scope of the material that may be dragged into a trial worries me. I shall not press the matter at this stage, but I might return to it on Report, if necessary. I urge the Minister to think about it a bit more, also, as I am not sure that it is helpful.

I share the same general concerns. We shall not resolve the matter now. I understand that it is sometimes better for a jury to see a summary of a case, as it is for Members of Parliament to have notes on clauses. The criminal trial is slightly more difficult, because the defence statement is a document purporting to be given on behalf of the defence, having been put together by someone else, so it is a step further removed. Although the Minister has reassured us that there is judicial protection, in that the judge will have to be satisfied that the jury can see the statement, adverse inference can be drawn. Because of the trial context, issues such as ensuring that there is adequate opportunity for the statement to be given and checked; what happens if it is not given or checked by the defendant personally; and the warning that it might, to use the cliché literally, be used in evidence against him cause me concern. There is a range of issues, and we shall have to put them in order.

I hope that it might reassure the hon. Gentleman to look at subsection (5)(b) of proposed new section 6E. The Committee will note that the judge may make such a direction only

''if the judge is of the opinion that seeing a copy of the defence statement would help the jury to understand the case or to resolve any issue in the case.''

That is the safeguard.

I accept that.

The hon. Member for Wrexham asked whether the contents of alibi notices could be used in evidence. The answer is yes, although it is noteworthy that that is hedged around with a number of complicated restrictions, which I do not have time to allude to during an Intervention. It is not a straightforward matter.

That information is gratefully received. It obviously does not happen often, as no one in the room has ever seen an instance. I indicated earlier that there was a league table of matters of importance in the area of disclosure—we still need to address some of the issues that recur in drafting. I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 31 ordered to stand part of the Bill.