I beg to move amendment No. 185, in

clause 28, page 17, line 18, after 'party', insert 'after having heard representations from all parties'.

With this it will be convenient to take the following amendments: No. 134, in

clause 28, page 17, line 24, at end add 'but the exchange of such defence statements between the co-accused and its service by each accused on the prosecution shall be simultaneous.'.

No. 187, in

clause 28, page 17, leave out lines 31 and 32.

No. 133, in

clause 28, page 17, line 32, at end add 'insofar as such matters of fact have been identified in a case summary provided by the prosecution.'.

No. 188, in

clause 28, page 17, leave out lines 35 to 37.

No. 135, in

clause 28, page 17, line 36, after 'take', insert 'at the time the defence statement is given to the prosecution,'.

No. 226, in

clause 28, page 17, line 37, after 'he', insert 'then'.

No. 189, in

clause 28, page 18, leave out lines 3 to 6.

No. 136, in

clause 28, page 18, line 12, leave out subsection (4).

No. 190, in

clause 28, page 18, leave out lines 23 to 25.

No. 227, in

clause 28, page 18, line 29, at end add 'but the exchange of such defence statements between the co-accused and its service by each accused on the prosecution must be simultaneous'.

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—

Amendments Nos. 185, 134, 187, 133, 188, 135, 226, 189, 136, 190 and 227 to clause 28 are designed to improve the Government's proposals, not to wreck them. I want to make that clear. I am completely comfortable with the principle of disclosure

of the principal defence facts. After all, it was introduced in legislation under the previous Conservative Government. A criminal trial, even in an adversarial system, should not be a series of ambushes. Indeed, in my time at the Bar attempts at ambushing merely led to adjournments, which simply spin out court proceedings.

It is plainly desirable, as far is as possible, that the principal facts and matters of a defendant's case should be made available to the prosecution before the trial. It is with that in mind that we tabled amendments to clause 28 and also tabled several amendments jointly with the Liberal Democrats. It may be helpful if I outline to the Minister the key issues in the amendments proposed to the 1996 Act by clause 28.

First, and I saw the Minister nodding in reply to the speech of the hon. Member for Southwark, North and Bermondsey, it is clear that all parties must have an opportunity to make representations. I fully accept that the rules of court may provide for that, but my reason for tabling the amendment is to ensure that we at least have it on record that that is what was intended. We wish to avoid later suggestions, which can happen, that the usual principle of hearing all parties before coming to a decision is not being adhered to.

The present wording is open to the interpretation that disclosure is confined to the prosecutor and to that particular defendant and to nobody else. Some reassurance from the Minister on that would be helpful.

Amendment No. 134 calls for the exchange of a defendant's statement with co-accused to be simultaneous. I will return to this, for there is also provision in this part of the Bill for a subsequent statement. That creates problems. However, it is essential that there is simultaneous exchange of the first statements between defendant and prosecution and that there is a requirement that they should be supplied to co-defendants.

It is possible to deal with that by rules of court, but we should at least consider the issue. We must also accept, and it is a point worth bearing in mind, that there may be circumstances when this cannot happen because the defendant is arrested late, for instance, and brought to trial later when two trials have been consolidated. Clearly, once a structure of exchanging evidence by means of statement setting out people's cases has been formalised, the last person to become involved in that process, if he is one of the co-accused, may have an unfair advantage over the others. That is a loophole that could be exploited by lawyers for the benefit of their clients.

Surely not.

I would very much hope not, but I am sufficiently realistic to know, because of my previous career of prosecuting and defending cases, that such things can happen. As we are concerned with ensuring fairness of proceedings, that is quite an important issue, and one moreover that may not be capable of a simple answer. Although in ideal conditions

simultaneous exchange would be the right course of action, I accept that there may be times when it is not possible. However, the fact that it is not possible does not get away from the ideal, and that arguably raises questions about the potential for serious unfairness. It is a matter on which I would like to hear a little more from the Minister.

Amendment No. 187 would delete the requirement that the defendant sets out in his defence statement the matters of fact on which he takes issue with the prosecution. At that point, the hon. Member for Southwark, North and Bermondsey and I part company. There are perfectly good reasons why a defendant, through his representatives, should identify the key areas of fact with which he disagrees with the prosecution. I believe that we should be realistic. A prosecution case may run to hundreds of pages of witness statements, and thousands of documents. Given the amount of time that a defendant will normally have with his representatives, it will be completely impossible for him to go through every statement, especially at an early stage, and dot all the ''i''s and cross all the ''t''s in order to identify every conceivable area of factual dispute that might arise between himself and the prosecution. Such an exercise is unreal and will in fact be unreasonable.

We cannot get away from the fact—those of us who have practised in court know that it happens frequently—that witnesses say things in the witness box that suddenly lead to one being tapped on the shoulder and being given a piece of information that may turn out to be very important. Sometimes, conflicts emerge that, from the instructions that one was given by the client, one had no reason to expect. That does not necessarily happen because the client has been lying, but because human nature, with its flaws, works like that. Frankly, that is one of the reasons for the trial process. The trial is about people giving oral testimony and evidence, which can be challenged. People can hear what has been said and one hopes that the true pattern of what happened emerges—as do the areas of conflict. Sometimes, one might expect a major area of conflict in a trial, but asking just one extra question of the witness about what he said in his statement can lead to there being no conflict.

My concern is that the wording is much too prescriptive. It will lead to enormous problems for legal representatives and defendants. We must face the fact that many defendants are semi-literate—some are illiterate—and have to be taken through statements with care. Many cannot easily read the statements. We are demanding too much. The solution that I suggest in amendment No. 133, which I prefer to amendment No. 187, is for a requirement to challenge the factual assertions in a prosecution case summary. Nowadays, my prosecuting work is almost exclusively confined to health and safety at work. I do one or two other things, but that is my principle area of practice, and I have never prosecuted a health and safety case in which a prosecution case summary was not provided to the defence. Indeed, in my experience, a well-worded and reasonable case summary, setting out the

prosecution case, can be a powerful instrument in securing a guilty plea.

In so far as a prosecutor produces such a case summary, there should be little difficulty in a defendant identifying the salient points of fact in it and saying whether he agrees with them. That gets us away from all the anxiety associated with a poor old defendant having to decide what he will say about some wholly peripheral assertion of fact by a witness, to which he might not know the answer, on which his memory might not be very good, and which might not be central to the case. Let the prosecutor decide what is important and identify it, and let the defendant respond. That seems to be a much better approach than the one contemplated in new section 6A.

The Liberal Democrat amendment No. 188 would omit the requirement to provide points of law. There again, I disagree with the hon. Member for Southwark, North and Bermondsey, because that is too sweeping. There is no earthly reason why points of law known to the defence should not be communicated to the prosecution at the first opportunity. I do not have any difficulty with that. One must be realistic about the way in which the trial process works. Most barristers hope that they are competent, but although I have gone into a trial to represent a defendant knowing very well what point of law I wish to raise, all too often the point of law suddenly emerges from what someone has said, from what has happened or from the evidence. In those circumstances, it is vital that the defendant and his representatives should not be prevented by these provisions from advancing a full argument.

Clearly, that places a burden on defence counsel, but it is not a difficult one. Defending barristers already have duties to the court. A judge would quickly see through a defendant who tried to exploit that loophole and would ask counsel, ''When did you first think about this?''—and we have a duty not to lie to the court. Although there is a duty on counsel or on the solicitor to communicate points of law that he intends to use as soon as they have crystallised in his mind, our amendments Nos. 135 and 226 would simply provide the reassurance of expressly setting out that counsel can argue points of law, as they emerge during the trial, without fear that someone will wave these rules in his face and allege that he is acting improperly.

The hon. Gentleman understands, I hope, that our objection relates as much to the practical as to the principle. One cannot anticipate which facts and legal arguments will appear important. The defence would always be hampered if any change to their original list were interpreted as undermining their credibility.

I agree with the hon. Gentleman, but I have done trials in which the judge has spoken to counsel on the first day and said, ''I have read the papers and I anticipate that points of law will arise. Could you identify those points of law now and supply me with the authorities?'' So it is sometimes plainly obvious what will happen. Indeed, a trial may revolve

around a point of law that is known to both prosecution and defence at the outset. The defence are not handicapped by having to declare their hand at an early stage when they know what that hand is going to be. My concern is that one often does not know what one's hand is going to be—

I agree with large parts of the hon. Gentleman's argument. In every case in which I have been involved, matters have arisen that I had not anticipated, whether of law or of fact. However, is the correction not already built in to the Bill, through clause 34? New section 11(5) seems to admit of changes to the defence subject to the court making

''such comment as appears appropriate''.

I shall come to that in a moment. However, the very phrase that the hon. Gentleman has read out raises anxieties in my mind about how the court will make such a comment. Ultimately, the judges will draw up the rules and they will interpret them, and I have little doubt that they will strive to be fair. However, we are setting out a statutory framework. In doing so, it would be desirable to point out, even at this stage, that we fully understand the limitations on the ability of representatives to carry out the exercise that we are asking them to carry out in clause 28. Not to do so raises a presumption that if it is not complied with, barristers will worry late at night that that will have an adverse consequence on their clients.

I am all for kicking members of the legal profession from time to time to ensure that they operate expeditiously and do their homework properly. However, trial processes, as the Minister knows, are stressful for all concerned, defendants, those representing them, prosecutors or—

Victims.

Indeed, and for the witnesses, but at the moment we are concentrating on the position of defendants. I never lose sight of the fact that, irrespective of somebody's guilt or innocence—if he is guilty he ought to have pleaded guilty at the earliest opportunity—the trial process is stressful for those who go through it as defendants. One is entitled to say of those who do so, and are acquitted, that they have been through a life experience that I would not wish to have to go through. One must make allowance for that, otherwise one moves towards the rather mechanistic approach that can produce unfairness. That is what the amendments that I have tabled are designed to prevent. If the Minister were minded to accept them, I do not see how the thrust of part 5 and clause 38 would be diminished. If he thinks that it would be, we can debate that.

Amendment No. 227 deals with the simultaneous nature of exchange in circumstances in which there has been an additional provision. I return to what I said originally: I accept that that creates problems, because additional statements may be served for different reasons by different defendants at different times. However, it brings us back to the point about the fairness of the mutual exchange of statements.

I find the clause perfectly well intentioned, and inasmuch as it beefs up the 1996 Act and provides for a sensible form of exchange of information, I am in favour of it. However, some of the detail should give the Committee cause for concern.

I should like to join my hon. and learned Friend the Member for Redcar (Vera Baird) in welcoming the thrust of clause 27. I speak as someone who formerly practised as a solicitor. I recall dealing with disclosure in substantial criminal cases, and what a difficult issue it was.

The structure proposed in the clause is entirely proper and reasonable. I speak as someone who formerly practised as a defence solicitor. I must therefore part company with the hon. Member for Southwark, North and Bermondsey, in respect of the approach of the Liberal Democrats' amendments. That is because he said at the outset of his remarks that it is no duty of the defendant to assist the prosecution in a case. I have read the clause very carefully indeed. It is my strong view that nowhere in the clause is there any obligation on the defendant to assist the prosecution. If there is any obligation on the defendant, it is to assist the interests of justice. As currently drafted, the clause does that.

I agree with much that the hon. Member for Beaconsfield has said. I think that some of his amendments are useful, and I, too, will welcome the Minister's response to those, which I shall specify in due course. In considering the procedure outlined in the clause, I think that the way in which matters are presently dealt with in civil proceedings is helpful. Civil proceedings do not always provide a good guide to the conduct of criminal proceedings, but they are helpful in the present context. In civil proceedings, a claimant presents the particulars of his claim. In regard to criminal proceedings, I am sympathetic towards amendment No. 133, which says that it should be appropriate for a prosecutor or the Crown Prosecution Service to provide a summary of a prosecution case, outlining the main points in the case. It is entirely reasonable to expect the defendant to respond thereto.

A response by a defendant in that context no more assists the prosecution in a criminal claim than the defence in a civil claim assists a claimant who is proceeding against them. The defence identify the issues in the case, highlight bones of contention, and take positive steps in the interests of justice, by limiting the time and expense that both sides use up in going down dark alleys that do not lead anywhere. That ultimately holds for both parties and the court.

I believe that the entire process of disclosure in civil and criminal proceedings is helpful. The defence do not in any sense assist the prosecution in their case. The defence assist, if anything, the pursuit of the interests of justice.

The issue that I find compelling in the proposals of the hon. Member for Beaconsfield is that of the presentation of the prosecution's summary of the case, before the defence present their case. I think that that would be helpful to any defence practitioner in focusing in on the issues in the case. I agree with

those who have practised in the courts who have already spoken, that in almost all cases that come to court, issues that no one had thought were of any importance become key to the conclusion of the proceedings. However, it is helpful for both sides to try to focus on those issues as early as possible.

I was surprised by a number of the briefings that I received. One was from the Law Society, of which I am an individual member. My hon. Friend the Member for Bassetlaw (John Mann) is not in his place, but I confess also that I am a non-practising consultant in a firm of solicitors. It is not sensible for the Law Society to suggest that disclosure of the sort outlined in this part of the Bill is in any sense prejudicial to defendants' interests. It will hone the issues between the parties and speed up cases in the interests of justice; and—who knows?—disclosure by the defence may, if appropriate, lead to cases being discontinued. It is far better for defendants that cases should be resolved as early as possible, without the stress and imposition that a contested criminal trial can lead to.

I will be interested to hear what the Minister has to say in response to the debate. In general, the clause is to be welcomed. Perhaps it can be refined and improved, but I have no doubt that the thrust of the disclosure proposals will lead to a great improvement in the operation of the criminal courts.

Briefly, I wanted to join the hon. Member for Southwark, North and Bermondsey, who is from the other side of the legal profession, in welcoming the clause generally. However, I suggest that the amendments proposed by the hon. Gentleman are not necessary. He would expunge paragraph (b) of proposed new section 6A(1), which would require the defendant to indicate the matters of fact on which he takes issue with the prosecution. One has had to do that in defence statements for a long time, so it does not impose a fresh burden. He seeks also to expunge the requirement in paragraph (d) to indicate any point of law that he wishes to take.

In almost every case that is likely to last more than day or so, there is now a preliminary hearing, called a plea and directions hearing, in which the prosecution and defence have to fill out a pro forma setting out a plan of how the case will run. It asks a number of questions of the Crown—whether they have served all their evidence, whether there is additional evidence, whether they will rely on expert witnesses and so on. It also puts a certain number of questions to the defence, including the ones set out in paragraph (d), under which the defence are required to indicate any point of law, including any point of admissibility, that they are going to use. It is requested that they supply authorities, but I confess that that is not always done. [Interruption.] I see the hon. Member for Beaconsfield smiling; it is quite rare for the authorities to be supplied, but that is nothing to do with defendants. The habit should no doubt be inculcated that the authorities are supplied as early as possible.

There is no real change in either of those proposals to the way in which trials are run. The real change is to be found in paragraph (c), which appears to require a good deal more detail than paragraph (b); it wants

information not only about what matters the defendant takes issue with, but why he takes issue. That obviously requires some evidential support. I cannot think of a better proposal than the one already canvassed which is that, in most major cases, the prosecution set out as a matter of course all the evidence that they will rely on—in an appropriate but not a swamping level of detail. If it were to be made a rule of court that it had to be done in every case, the prosecution statement could be matched by the defence response required under paragraph (c), and the degree of detail in the summary could properly be matched by the degree of detail in the defence response. That would put it at a level that was fairly general, but detailed enough to allow everyone in the case to know what else they had to do to finalise the preparation. Frankly, none of the clauses seems to me to impose a new burden on the defence or to be anything other than highly desirable in speeding up court proceedings and in making them more effective.

One concern that I have—I seek the Minister's assistance with it—is under clause 34, which my hon. Friend the Member for Wellingborough (Mr. Stinchcombe) has already referred to, and it is that subsection (5) of the new section 11 proposes that the court may comment on any defect in defence statements. It also allows, even more penally, the court or jury to draw such inferences as appear proper from any defect in the defence statement.

I am a little bit worried, and I seek reassurance about how drawing such adverse inferences will tally with the new section 6A(1)(d) proposed in clause 28, which is about points of law. It is basically the lawyers' responsibility to earmark the points of law that are to be taken. It is difficult to see how it could be fair to hold it against the defendant if his lawyer has missed one. Of course, a defendant might not have given his lawyer information, with the result that the lawyer did not know that there was a point of law. Trying to allocate blame in such a case would lead us into really difficult territory in which legal professional privilege would have to be breached. The court would have to ask me whether my client had given me the information. I am sworn to secrecy about my instructions, and such an inquiry would be inappropriate.

By and large, paragraphs (a), (b) and (c) of the proposed new section 6A will require the defendant to disclose most of the information on which he relies, and there can be adverse comment if he fails in any of those duties. Therefore there is no need to give a court or a jury an opportunity to make comment or to draw inferences if there has been a failure to point out the points of law that will be used later. It will—almost by definition, because of the duties imposed by paragraphs (a), (b) and (c) and the prospect of an adverse comment if they are not adhered to—be the lawyer, not the defendant, who has made the mistake.

I have a final comment on the proposal by the hon. Member for Beaconsfield that lawyers should be compelled to exchange defence statements

simultaneously. No self-respecting defence solicitor would give away their defence statement until they had reached an understanding that it would be done simultaneously. However, if that practice was made a requirement of the law it could sometimes prove unnecessarily rigid. For instance, one defendant could suddenly take ill and be unable to give instructions and the trial of the other person would have to be stopped because there had not been a simultaneous exchange of statements. That would be the antithesis of what we are trying to do, which is to speed up court proceedings. That is not a good amendment.

In general, however, despite my caveat on paragraph (d), which I hope that the Minister will help me with, these provisions are very helpful; they do not damage the defence. They will probably require lawyers to prepare their cases much earlier, and there is nothing wrong with that.

This has been an extremely helpful debate, and I am grateful for the amendments, which have teased out some of the issues. I will do my best to answer all the Committee's questions. I agree wholeheartedly with my hon. Friend the Member for Wrexham (Ian Lucas) and with my hon. and learned Friend the Member for Redcar. I thank the hon. Member for Southwark, North and Bermondsey for the point that he made on the phrase ''to assist the prosecution'' because hon. Members are absolutely right to point out that that is the wrong approach.

The point of clause 28 is to assist justice and the trial process, to clarify the issues and to help the judge to manage proceedings.

First, I must make it clear that nothing—nothing—in the clause changes the requirement on the prosecution to prove its case beyond reasonable doubt. That bedrock does not change.

The concern that lies behind the phrase that the hon. Member for Southwark, North and Bermondsey used and behind several points that the hon. Member for Beaconsfield made was, as I indicated when we discussed clause 27, mentioned extensively in Sir Robin Auld's report. It may be helpful if I remind members that he quoted from the Runciman royal commission, which said:

''Disclosure of the substance of the defence at an earlier stage will no more incriminate the defendant nor help prove the case against him or her than it does when it is given in evidence at the hearing.''

In that famous phrase from the report, Sir Robin Auld says:

''I can understand why, as a matter of tactics, a defendant might prefer to keep his case close to his chest. But that is not a valid reason for preventing a full and fair hearing on the issues canvassed at the trial. A criminal trial is not a game under which a guilty defendant should be provided with a sporting chance. It is a search for truth''.

That is about trying to enable the court process and the trial to focus on the key issues. The more those issues are laid bare and understood before the trial starts, the better the chance that the trial will focus on them, with a view to reducing delay. That is one consideration, not because speed is the main objective but because focusing on the issues that really matter is.

I shall deal first with amendment No. 185, and I hope that I can offer the hon. Member for Southwark, North and Bermondsey the assurance that he and the hon. Member for Beaconsfield seek. We do not think that the amendment is necessary, although we agree with the principle behind it. In the interests of ensuring a fair trial, courts will invariably consider representations from all parties before making an order for the cross-service of defence statements. A court may make many orders during a trial, and those will be made after considering any representations that parties may wish to make. To provide specifically in statute in every case that an order cannot be made without considering representations would be an unnecessary elaboration. For orders for which that provision does not appear in statute, it might suggest two classes of order—one that considers representations and one that does not.

It is envisaged that, if required, further details of the procedure to be adopted for cross-service applications, including the consideration of representations, may be included in rules of court.

Amendments Nos. 134 and 227 concern the procedure for cross-service of initial and updated defence statements respectively. Clause 28(1) tries to fill a gap in the disclosure procedure that the Criminal Bar Association drew to the Government's attention. It requested that urgent consideration be given to the lack of guidance available. However, since the Bill was introduced, the Court of Appeal on 22 November 2002, in the case of Regina v. Cairns and others, held that the court could order cross-service. The clause provides statutory backing to the court's decision.

Subsections (1) and (3) give the judge power to order cross-service of initial and updated defence statements to co-accused, either through the judge's motion or on application by any party. That power is discretionary because there may be circumstances in which it is not appropriate to order cross-service. That was picked up in several contributions, including that from the hon. Member for Beaconsfield. The aim is to improve fairness to all parties.

The sequence of events that the two amendments would impose, conflicts with the provisions in section 5 of the 1996 Act and in proposed new section 6B(1). Section 5 requires the accused to serve his initial defence statement simultaneously on the court and the prosecutor after receiving initial prosecution disclosure of unused material. Proposed new section 6B(1) also requires the accused to serve his updated statement on the court and the prosecutor simultaneously. On receipt of the initial defence statement, the prosecution have a specific duty to review the unused material and make further disclosure to the defence if necessary. In the case of the updated statement, the prosecution's continuing duty to disclose will apply.

Our intention is that any cross-service of initial and updated defence statements will take place after service on the court and the prosecution. Before reaching a decision on whether to order cross-service, it may be necessary for the court to consider all the co-defendants' statements and any representations made on the issue of cross-service. In parallel, the prosecution will review the unused material in the

light of the defence statement and provide further disclosure to the defence, if necessary.

It would be impractical to require the cross-service of the initial and updated defence statements at the same time as service on the prosecution in every case. That would not take account of the circumstances in which the judge may decide not to order cross-service. Although I understand the general thrust of the hon. Gentleman's point, it would be inappropriate to enshrine it in statute in the way that he suggests.

Clause 28(2) introduces more detailed requirements for defence statements. Amendments Nos. 133, 187, 188, 135, 189 and 226 would modify those requirements.

Subsection (1)(b) of new section 6A of the 1996 Act requires the defence to indicate the matters of fact on which they take issue with the prosecution. Amendment No. 133 would restrict that requirement to cases in which the prosecution provide a case summary. However, the prosecution are not generally required to serve a case summary, and the amendment would not make that a requirement. Thus, it would nullify the existing important defence statement requirement in the majority of cases.

On the broader point, we do not consider it necessary to require a prosecution case summary in all cases, because the defence will often have sufficient information about the prosecution case to prepare their statement. After all, the prosecution are required, before the trial, to give the defence copies of the evidence—witness statements and exhibits—that they intend to use against the accused. Additionally, they are required to undertake initial disclosure of unused material that meets the new test set out in clause 27. In essence, a prosecution case statement is required.

I recognise the benefits of such a statement in complex cases and in health and safety cases, to which the hon. Gentleman referred, but it would be unduly burdensome to require one in all cases.

It might not be such a bad thing to require a prosecution statement in all cases. I accept that it might be an onerous burden, and the CPS, which deals with many cases, might find it difficult. However, that was not my intention, although it may be an unintended consequence. I intended to say that no requirement to supply a case summary dictates the amount of information that must be supplied about the factual matters in dispute. What concerns me is that it is unfair to require the defence to trawl through a multiplicity of witness statements to identify every fact with which they disagree.

I shall try to deal with that point, because it also relates to amendment No. 187, which would remove the requirement for a defence statement to set out matters of fact that the accused disputes with the prosecution.

As regards the onerous burden placed on the Crown Prosecution Service, authorised officials or lawyers employed by the CPS will carry out a vetting procedure in all cases. Would it not be good practice, as a discipline, for a brief case summary to be prepared

in each case? I found that that helped me to assess cases that I was preparing.

I am not arguing with the suggestion that it would be helpful to do that where appropriate. That is not meant to be a flippant answer. I am simply saying that it is inappropriate, given the amount of information that the prosecution already disclose, to impose a requirement in every case. I think that my hon. Friend accepts that that would be the unintended consequence. The purpose of defence statements is to assist the process of prosecution disclosure. As my hon. Friend identified, the to and fro of information may bring to light facts that lead to the prosecution being discontinued, so the process is helpful in avoiding unnecessary trials. Furthermore, as we have discussed, such statements are intended to clarify the issues.

The reason behind all the proposed changes is that current legislation is not working as Parliament intended, and Sir Robin Auld carefully and thoroughly identified that problem in his report. The independent research commissioned by the Home Office found that 52 per cent. of a sample of 115 defence statements contained a bare denial of guilt—''I did not do it''—or did not meet the requirements of section 5 of the 1996 Act. The greater detail required of the defence under clause 28 and related clauses will give effect to the spirit and, indeed, the letter of the original legislation. It will add to the obligations on disclosure.

I do not think that the principle of requiring more information, which the Minister has outlined, is at all contentious, and I have not heard it disputed. The issue that I am trying to plumb is what degree and depth of information and disclosure will be required to avoid the penalties that back up the requirements on the defence. The move to match requirements with what happens in case summaries is an attempt to answer that question. We are presumably saying that if we get a certain amount from the Crown, it is fair enough to give the same amount back. How else can the defence gauge matters if they are to be sure that they will avoid penalties?

I will come to that point a little later. It is important because it provides the context in which judgments will be made about the information that is disclosed.

As regards matters of fact, section 7 of the Criminal Procedure and Investigations Act 1996 requires the accused to disclose

''matters on which he takes issue with the prosecution''.

The new provision merely clarifies that what is required are details of disputed matters of fact, by which I mean those that are known when the statement is submitted. Other issues may arise later, but no one could have anticipated them. I think that we all accept that, in the course of a trial, just as in the course of a debate on a Bill in Committee, issues come up that one had not anticipated, and they must be dealt with at that time.

May I also reassure hon. Members that we are talking not about every dot, comma and fact, but about the main facts. The defence will not be required to rebut, point by point, everything in every witness statement.

I appreciate that that is the intention, but I am not sure that that is how it appears when one reads the Bill. I agree that a judge might get a bit shirty if someone started complaining because some nitpicking issue on page 16 of a verbose witness statement had not been adequately challenged earlier. However, that seems to be the direction in which we are going. I thought that amendment No. 133 went a long way to deal with the problem by introducing the idea of a prosecution case summary.

I hear what the hon. Gentleman says. In the end—this, in essence, answers the point raised by my hon. Friend the Member for Wellingborough about the interpretation of clause 34 and proposed new section 11(5)—the prosecutors and the court will have to take a view on whether any defect in the defence statement is a ploy on the part of the defence or simply the result of the fact that the information that emerged was different from what was expected or what was known at the time. They will be in a position to comment or to seek to draw attention by way of adverse inference if it is deemed to be a deliberate ploy. We shall have to rely on the court, the judge, the prosecution and, ultimately, the jury to weigh all of those things in their minds in reaching a decision. I was trying to reassure the hon. Gentleman about the practicality of the volume of material required in relation to disputed matters of fact, which is what he asked about.

Amendment No. 188 would remove the defence statement requirement to indicate points of law that the accused wishes to raise and the authorities intend to rely on. Determination of legal points, such as the admissibility of evidence or Human Rights Act issues, takes place in the absence of a jury. Generally, to make best use of a jury's time, judges seek to deal with such points, if possible, either before the jury has been empanelled or at the very beginning of a trial. Clearly, advance notice is necessary to enable such arrangements to be made. Advance notice of legal points is already required for defence statements ordered in preparatory hearings for fraud and other complex or lengthy cases. The aim of this provision is to assist the management of other criminal proceedings where legal points arise. Turning to amendment No. 135—

Further to the point made by my hon. and learned Friend the Member for Redcar, can my hon. Friend envisage circumstances in which the court would punish the accused—in terms of adverse comment and adverse inferences at the trial—for not raising points of law and legal authority through lawyers at an early stage? It seems that it would never be the fault of the accused, so why is the point necessary?

I thank my hon. Friend for that helpful intervention. I cannot conceive of circumstances in which we would say to someone that, because his knowledge of the law was

insufficiently developed, either as a defendant or as a defendant's legal representative, he should be penalised in relation to the charge that he was facing. We need not worry about that.

The intention of the defence statement is to require the accused to look forward to the trial on the basis of the information that he has before him. Requiring issues of laws to be raised will assist the judge in the management of the trial.

To what degree of detail would my hon. Friend expect the defence to set out the point of law that it intended to raise? He will be aware that in many civil cases, certainly in the High Court, there are obligations to provide skeleton arguments. Would the defence have to go that far, or would it simply have to state the point that it wished to raise?

I think that it would be useful if I were to write to my hon. Friend about that important point, and to circulate my reply to the rest of the Committee, as has been my practice with the other letters that I have written.

Returning to amendment No. 135, it would not be helpful to remove from the accused the obligation to set out the points of law that he intends to use. If the amendment is prompted by concerns that the accused may wish to amend that part of his defence statement later on, it is covered by the provisions of the clause, and in particular subsection (3).

Amendment No. 226 would provide that the requirement for the defence statement to include any authority on which it intends to rely should be linked with the requirement to indicate any point of law that it wishes to make. We do not consider that to be necessary, because subsection (1)(d) provides that the accused must indicate any point of law on which he wishes to rely and any authority on which he intends to rely for that purpose. That already happens in more serious cases. It is a very good example, and it could be usefully extended.

I turn to the requirements relating to alibi witnesses. Amendment No. 189 would remove the requirement for the accused to provide any information about an alibi witness if he were unable to comply with the requirement to provide name, address and date of birth. Of course, advance notification of defence alibi witnesses is a long-standing practice, and subsection (2) of new section 6A of the Criminal Procedure and Investigations Act 1996 largely replicates the existing alibi notice requirements contained in section 5(7) of the 1996 Act. That, in turn, replicated the previous alibi notice requirements in section 11(2)(a) of the Criminal Justice Act 1967, which were repealed by the 1996 Act.

It has long been recognised that, if the defence intend to adduce alibi evidence, the court and the prosecution should be given advance notice of it. The purpose of this provision is, bluntly, to inhibit the late fabrication of alibi evidence and to prevent juries from being misled by evidence being called at the last minute—evidence that the prosecution have had no opportunity to check or rebut. That is why we propose that the accused should have to provide details of the name, address and date of birth of any alibi witness.

If the accused does not possess any or all of those details, he is simply required to provide any other information that might assist in identifying and locating the witness. Removing that second option would mean that if the accused did not possess precise details of the alibi witness, he would be under no obligation to provide any information at all, which would undermine the whole purpose of the advance notice requirement. For that reason, I would resist that change.

Amendment No. 136 would remove the power conferred by subsection (3) of new section 6A on the Secretary of State to make regulations on the details of matters to be included in the defence statement. The Government hope that the changes introduced by new section 6A will have the desired effect of improving the quality of defence statements. However, the regulation-making power will enable further and more detailed guidance on the contents of defence statements to be issued if it should prove necessary. The provision will allow us to respond more quickly and flexibly to that need than is possible under primary legislation.

I apologise for the length of that response, but a large number of points were raised in debate. In the light of my explanation and of the reassurance that I have been able to offer, I hope that the amendment will be withdrawn.

I am extremely grateful to the Minister. He has indeed provided a great deal of reassurance. Some amendments were probing amendments, to get the discussion going, but others were designed to examine one or two areas that caused concern. I hope that he will forgive me if I come back on two points that emerged from the debate. I would be grateful if he would consider taking them away and thinking about them again.

First, amendment No. 133 raised the issue of the prosecution case summary. I took the opportunity while the Minister was speaking to re-read that amendment. If it had been incorporated into the Bill, such a provision would not have prevented a defence statement from being given. There would still have been a need for a defence statement, but it would have covered only the matters of fact on which the defence took issue with the prosecution—as opposed to setting out the nature of the accused's defence, including any particular defences on which he intended to rely.

Perhaps I was being too kind to the CPS when I said that it might be an onerous burden. I accept that a requirement to produce a case summary would be an extra burden on prosecutors, whether it be the solicitors and the CPS, or counsel preparing for a case in the Crown court. On the other hand, as I have found, a case summary is a vital document for a number of reasons. First, it clarifies in the prosecutor's mind whether he has all the evidence; secondly, it can usually be used as the opening note in a contested case before a jury; thirdly, it can be used to open the case on a guilty plea. It is an enormously useful tool, and once it has been produced I suspect that it saves a great deal of time.

Furthermore, if a case is so simple that we are concerned only about one or two witness statements, the case summary itself is likely to be extremely simple. If a case summary is not served, the prosecutor will still get the nature of the accused's defence, but he will not get a detailed rebuttal of matters of fact. I cannot help thinking that amendment No. 133 would introduce a simple and fair method of resolving the issue, which would not lead to an excessive burden being put on the defence—either on the defendant himself or on his representatives.

I shall not press the amendment to a Division, but I ask the Minister to assure the Committee that he will consider afresh whether that might be a way of preventing disputes in court, with a prosecutor arguing that there has been a failure on some material point in a witness statement that, quite reasonably, might not have been thought by the defendant to be particularly important and could easily have been missed. It would provide an extra safeguard; it might even streamline the system.

Secondly, clause 34 deals with the failure to draw attention to legal issues. I was very persuaded by the argument of some Labour Back Benchers—it also tied in with the point that I made in opening for the Conservative party—that it is often difficult and it is certainly not the defendant's fault. In those circumstances, it is be difficult to see how adverse comment could be made other than to the professional body of which the lawyer is a member—but certainly not to the jury. Perhaps the Minister will consider whether clause 34 should amended, so that non-compliance with the provisions in new section 11(2)(d), made under clause 34, could no longer be made a subject of comment.

Just suppose, as an addendum to those comments, that the lawyers at fault could be punished in costs.

They could indeed, although as the hon. Gentleman knows, the procedure for punishing lawyers in costs seems to have become extraordinarily complicated—perhaps to the lawyers' benefit. He is quite right, however, that that would be the sensible sanction to be visited on the lawyer, because a failure to raise a legal point will inevitably lead to the prosecution being granted an application for an adjournment if time is needed to consider it. That is the true impact that it would have on the case, and little else.

With those two comments in mind, and the vague hope that the Minister might say that he will look afresh at the provisions, I shall not press my amendment to a Division. We might come back to those two matters on Report if they cannot be satisfactorily resolved now, but I hope that that will not be necessary.

I am reassured by the Minister's response to amendment No. 185; it will help if it is made clear that representations from both sides are expected before decisions are taken.

On the more substantive point, although I understand the arguments of the Minister and of the hon. and learned Member for Redcar, a fine line is to be drawn on whether the defence is being asked to help the cause of justice or to help the prosecution. I have no problem with the defendant being asked to help the cause of justice; whether innocent or guilty, the rules of the process require the defendant to co-operate with the system in a reasonable and sensible way. People who are acquitted will not have enjoyed the process, and they may feel that they have had a terrible time, but they need to be required to comply.

The consensus of opinion is that we must be careful not to create prejudice through imposing requirements that are impossible or impracticable to fulfil. That point was made by both Government and Opposition legal practitioners. Although the Minister may return to the matter, the key point is that defendants should not suffer prejudice if they do not make a statement of facts or of law in two of the categories in the defence statement as full as it will need to be in the end in order to deal with all the points raised during the trial.

In a way, there is a protection against that wrong interpretation because there is a chance to come back to those matters again—a sort of second round of disclosure. It is becoming a bit more like the civil process, in which pleadings are served before the trial, but in which the issues have narrowed to matters of contention by the time of the trial. We are not talking about a civil process, but lessons from the civil procedure should be learned, provided that the absolute bedrock, reaffirmed by the Minister, remains the case. That bedrock is the key difference: that it is not a balance of probabilities proof but a beyond reasonable doubt proof.

I shall not seek to divide the Committee on the other matters. The Minister has heard expressions of concern from all parts of the Committee. I hope that he will reflect on them. The only matter of concern that may not have been answered as fully as the hon. Member for Beaconsfield suggested was raised in amendment No. 189. That matter was picked up by the hon. and learned Member for Redcar. I did not mean to mislead the Committee by saying that names and addresses appear as a matter of course in prosecution statements—the names will appear but not the addresses.

We must be careful, however that we do not end up with the defence having to supply the names and addresses of witnesses on whom they rely, thereby giving the prosecution an advantage that the defence do not have. One of my great concerns is that if we supply the name and address of a witness who may be a rogue or a vagabond, the police can do various things to interfere with or influence that witness. I appreciate that we can deal with that question in another context, but I flag it up as a concern not least because the police have access to the computer and can discover whether the witness has previous convictions—facts that may not be known to the defence.

We must be careful not to put a burden on the defence to do something that cannot be avoided, because it will be stabbing in the dark and to their

disadvantage. That has been a problem in many cases, and we must learn from that experience. For instance, the hon. Member for Beaconsfield and I would commonly practise as prosecution and defence lawyers and so understood the argument from both sides.

I recall on Second Reading that the Home Secretary gave an undertaking that a code of practice would be introduced on how the police should interact with defence witnesses. In particular, I think that it would always include the protection of requiring a defence solicitor to be present at all meetings. That must go some way towards reassuring the hon. Gentleman.

It does indeed.

Our concern has been registered. Like the hon. Member for Beaconsfield, I anticipate that we may come back to these matters on Report.

I acknowledge what the hon. Gentleman said, which we shall come to when we debate clause 29. Indeed, my hon. and learned Friend was right in her recollection of the assurance that was given.

On the impact of clause 28, as interpreted by new section 11(5) in clause 34, I must point out that one needs to read also subsections (6) and (7) in that new section, as they relate to clause 28. I hope that those subsections will offer further reassurance to those hon. Members who have understandably expressed concern about the basis on which adverse inference might be drawn. We have given consideration to the points that have been raised, but it is only right and proper that adverse inference is drawn if there is reasonable justification for so doing. Indeed, that is specifically provided for by new section 11(7)(b).

I hear the comments that have been made on those two issues, and if we return to them on Report our extensive debate will doubtless continue.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment No. 137, in

clause 28, page 18, line 14, at end insert—

'(5) Regulations under subsection (4) may only be made if a draft of the statutory instrument has been laid before and approved by a resolution of each House of Parliament.'.

In clause 28 (2), new section 6A(4) states:

''The Secretary of State may by regulations make provision as to the details of the matters that, by virtue of subsection (1), are to be included in defence statements.''

We have had an extensive debate about the nature of the contents of the regulations, but I am concerned about the possibility of their being altered without the scrutiny of the House. The amendment would require an affirmative resolution. It is a simple matter, but I would have thought that something of such potential seriousness ought to have a measure of scrutiny, and that an affirmative resolution would be the right way to go about it.

I would not expect the regulations to be changed frequently; I would expect them to be changed only

after consultation; and I would expect Parliament to have some input if the Secretary of State is taking responsibility for the regulations. I commend the amendment to the Committee.

I can accept the amendment. In all honesty, consideration has to be given to the circumstances in which it is appropriate to use the affirmative and negative resolution procedures. I go back to our earlier discussion on PACE—we must have regard to the sum total of the potential affirmative resolution burden on the House. I have thought carefully about it, however, and I am mindful of the recent report of the Delegated Powers and Regulatory Reform Committee, which generally put its thumb up in favour of the affirmative resolution.

Matters to do with court procedure are normally dealt with by negative resolution. Although I am prepared to accept the amendment, I do not want it to be thought that that principle will be changed. I am persuaded by the hon. Gentleman's argument because of the nature of the issues that will be addressed when further changes are made, and because the present changes were made by way of primary legislation. I am prepared to accept the amendment, and I hope that that assists the Committee.

I did not intervene earlier because an amendment in the previous group would have removed something but put nothing back in its place. The amendment is a welcome move in the direction that we were seeking to argue, and I am sure that it will be well received. I am grateful to the Minister for understanding that it is important that such matters receive parliamentary clearance before becoming the law of the land.

I, too, want to express my gratitude.

Amendment agreed to.

Clause 28, as amended, ordered to stand part of the Bill.