Question proposed, That the clause stand part of the Bill.

I shall not take up too much time on what I suspect is the only non-contentious bit of part 5. I very much welcome the proposed change to the prosecutor's responsibility. I have experience of the Criminal Procedure and Investigations Act 1996 as a prosecutor, and I would always disclose material that could reasonably be considered capable of undermining a prosecution case. I am delighted that that understanding has now been put on a statutory footing. It is also correct that the clause should add the words

''or of assisting the case for the accused''

after the phrase ''against the accused''.

The provisions highlight the fact—this general comment can properly be made now, because we shall deal with defence disclosure in a moment—that it is wrong to assume that the relationship between the prosecutor and the defendant's counsel and representative in a criminal trial imposes identical duties on them. Indeed, if we start from that basis, we shall be on very shaky ground. Even in our adversarial system, the prosecutor has a duty, over and above that of trying to get the defendant convicted, of ensuring that the trial process furthers justice. I welcome the fact that the clause reiterates that, and we should bear the point in mind when we consider later clauses, in which the Government put some quite strange duties on representatives of the defence. Prosecution and defence are not equivalent in practice, and trying to introduce equivalence will damage the interests of justice, rather than further them.

I want to raise an issue that I raised with the Minister before our proceedings, because it relates as much to this clause as to others. How do we manage the collection of witness statements so that we do not discourage people from giving evidence? The Minister may remember that I specifically raised people's reluctance to give evidence with him and Lord Falconer, the Minister for Criminal Justice, Sentencing and Law Reform. We probably all face the same problem in our constituencies. People are understandably reluctant to give evidence when they witness a crime, particularly a more serious one. They know that their statement, to which their name and address will be appended, is likely to be in everyone's hands pretty quickly. By definition, it will be in the prosecution's hands because the police will collect it and pass it to the Crown Prosecution Service. It will

have to be disclosed to the defence as part of the prosecution evidence. It might also have to be disclosed under the clause if it

''might reasonably be considered capable of undermining''

the prosecution case. It might be something that the prosecution had not anticipated. I have regularly found that that can be a serious problem. I should like to float publicly an idea that I floated elsewhere, which might affect all clauses concerned with disclosure. It might be worth—[Interruption.] We are all in the same position now.

No we are not.

I apologise. We should consider whether, in some cases, statements should be served on the court, and the only person to see them in the first instance should be the person in charge of the case. Then, at the pre-trial hearing and later, witnesses would be confident that, if disclosure were necessary, it would only take place on the basis that their interests would be protected in an appropriate way. It is already possible for a judge to decide that certain court proceedings will not take place in public and cannot be reported. Some happen in camera, because a judge can order that that is necessary—it is very unusual, but it can happen. We shall discuss such an instance when we debate clause 32. Proposed new section 7A(8) of the Criminal Procedure and Investigations Act 1996 reads:

''Material must not be disclosed under this section to the extent that the court, on an application by the prosecutor, concludes it is not in the public interest to disclose it and orders accordingly'',

so the issue is raised.

There are also cases in which people's identity is not disclosed. The obvious example is sexual offences cases. The great debate concerns whether the identity of the victim should not be disclosed and whether, in some instances, the identity of the person being prosecuted should be protected. We must face the fact that unless we do better in protecting witnesses, we shall have great difficulty in collecting evidence. Therefore, I should like the Minister to address his second round of thoughts to the issue. The first round was expressed at our meeting with the hon. Member for Beaconsfield (Mr. Grieve), the right hon. Member for West Dorset (Mr. Letwin) and my hon. Friend the Member for Somerton and Frome (Mr. Heath), and at a meeting that my hon. Friend and I had with Lord Falconer and the Minister.

This bit of the Bill concerns what evidence is needed by the other side in order to ensure that there is a fair trial. The bigger issue is that many trials never get past the starting block. Many of the cases in which the Government complain of a failure to secure convictions are those that do not start with the court process. Within the court process, the conviction rate is high; most people plead guilty or are convicted anyway. The difficulty does not occur once a case has begun, although there are famous cases in which that has happened; the difficulty is in getting the CPS to proceed by agreeing that there is a greater than 50 per cent. chance of success of prosecution, and that it is in the public interest to prosecute.

My last general point, which is directly applicable to the clause, is to consider the most famous recent cases that have collapsed. The Damilola Taylor case collapsed because of the wobbly nature of some of the prosecution evidence. There was a second issue to do with inducements and what is proper, and I shall come to that later. The second, the royal butler case, collapsed because part way through the proceedings new evidence or a new argument entered into the case and the prosecution case was thought to be weakened. It is important that we have a process that collects the evidence as thoroughly as it can and is able to assess—through the CPS—how to proceed, but does not put people off from the start because they think that as soon as they make a statement they will lose their anonymity and that, by accident or design, the fact that they have contributed to the case will be out in the open.

In the Stephen Lawrence case, one of the really unfortunate things that happened, as colleagues will remember, was that even when the inquiry was taking place the names and addresses of those giving evidence confidentially were released due to a mistake in New Scotland Yard. As the Solicitor-General, I and others in south-east London recall, that was a nightmare scenario. It was nobody's fault, but if ever one wanted something to undermine people's confidence in the process, it was that. I am not so much concerned about the interests of the defence, but I am concerned about ensuring that witnesses can feel secure enough to give evidence. I do not think that the clause addresses that issue at all. How does the Minister think that that could be done?

I could have tabled plenty of amendments for the Committee, although I thought that it would be better to wait for the Government's response, as they were given notice a couple of months ago. In the light of debates in the Committee, I shall be happy to introduce amendments on Report that will, I hope, command confidence across the House.

I hope that the hon. Gentleman is not under the misapprehension that addresses are put on witness statements, because in my experience they never are. There can therefore be no danger from that of a person's being harassed or even identified. I have frequently done cases in which there has been a gang element or a flavour of fear, and in which an application has been made for the judge to allow people's names not to be put on witness statements. People can be called A, B, C, D, E, and so on, and can give their evidence from behind a screen if they want that too. In legislation passed in 1999, the Government introduced a tranche of protective measures to support vulnerable, intimidated witnesses, all of which have, I think, come into force in the past few months. Such provisions protect people against precisely the dangers that the hon. Gentleman described. I cannot see any link between those and the duty of disclosure. The issue of taking care of witnesses is quite separate. I do not think that anyone could criticise the Government for not taking substantial care of witnesses.

May I say how welcome the clause is and—I do not want to sound frivolous—three cheers for the Home Secretary, if it was his idea? I give him many, many congratulations, and hope that I thereby restore his faith in lawyers. I think that we are all practitioners, and that we shall all be very pleased indeed to see the provision come into force.

The key to the provision is that, first, there is no longer a two-stage process, whereby a little bit comes out and then the defence put their defence statement in and draw a little bit more out. However, there may still be issues that are obvious on the papers, and which give rise to the need for more information to come out, but about which the prosecution say, ''Well, we're not sure whether it comes into either of these categories, and we've got a duty to be very careful.'' There are therefore pointless applications to courts to order whether X, Y or Z should be given out. It seems that that will now almost all go, particularly because of the other aspect of the provision.

Not only does the provision do away with the two-stage process, but it does away with the subjectivity, which was previously express in the legislation. Then the prosecution had to consider whether something undermined the prosecution or supported the defence. Now the test is couched in terms that should have been used in the first place. The words

''in the prosecutor's opinion might undermine''

have been replaced by

''might reasonably be considered capable of undermining''.

That strengthens the hand of fair prosecutors, who, by and large, want to make proper disclosure, and, equally, adds power to the elbow of defence advocates who may be worried that there is still something beyond. My guess is that the heat will go out of the issue, and that a good deal of money, time, and friction between defence and prosecution will have been saved. Therefore, I say again: three cheers for the Home Secretary.

Hon. Members:

Hear, hear.

After my hon. and learned Friend's contribution, I think that any comments from me are almost entirely redundant. I shall draw the Home Secretary's attention to the six cheers—I think that there were three at the beginning and three at the end—that she said that we should send. Indeed, as far as the specifics of the change are concerned, I sense that there is a welcome across the Committee for the change that Sir Robin Auld recommended and the Select Committee on Home Affairs endorsed.

My hon. and learned Friend outlined clearly the safeguards that are already in place, and the ones that have been added in recent legislation. To address the very real point on witness intimidation that the hon. Member for Southwark, North and Bermondsey (Simon Hughes) made, we have taken steps but we must continue to keep under review the protection that we make available to those who would otherwise be

afraid to give evidence. It is true to say that we have made progress, but further progress is needed.

We must reflect on all our experience. The hon. Gentleman has particular expert and personal knowledge because of, as many Members will know, a case in which he was involved. It takes a great deal of bravery and courage in those circumstances to stand up and be counted.

The hon. Member for Beaconsfield raised a broader point, which we shall come to in the substantive debates that are to follow. I reread last night with great interest the exposé of the hon. Gentleman's argument in Sir Robin Auld's report. As the hon. Gentleman will detect from the nature of the clauses, the Government do not accept the central thrust of that argument. This clause and subsequent clauses seek to make sensible provision, rather than undermine the rights of the defendant or the right to silence, which was discussed extensively in the Sir Robin Auld's report.

To alert the Minister to where the discussion is heading, I do not disagree with some of the proposals that place greater burdens on the defence, but I have the most profound disagreement with some because they strike at the root of fairness in the criminal justice system. However, we must consider each in turn.

Indeed we will. Clause 27, which I hope that we shall agree should stand part of the Bill, is really an entrée to the debate that we are about to have.

Question put and agreed to.

Clause 27 ordered to stand part of the Bill.