I beg to move amendment No. 195, in

clause 29, page 18, line 36, leave out 'must' and insert 'may'.

With this it will be convenient to discuss the following amendments:

No. 196, in

clause 29, page 18, line 40, leave out from 'himself)', to end of line 41.

No. 197, in

clause 29, page 18, line 42, leave out paragraph (b).

No. 198, in

clause 29, page 19, line 6, leave out 'must' and insert 'may'.

No. 199, in

clause 29, page 19, line 15, leave out 'must' and insert 'may'.

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.

I share the hon. Gentleman's anxieties on some matters, but not all. I do not find the principle of supplying the name and address of a witness whom one intends to call a difficult concept. I do not understand where injustice flows from in that.

A couple of matters sprang to mind while the hon. Gentleman was speaking—during which time, oddly enough, I re-read the clause—that cause me greater concern or at least prompt me to seek clarification. In many cases a defendant clearly knows that there is a witness called Mr. X, and where he lives. Sometimes he may know exactly who that person is, but not his address. In some cases, the defendant may refer to a person who he thinks might be able to help his case because he believes that he was in the vicinity of the events in question. There seems to me to be a slight lack of clarity about who is covered in the phrase

''he intends to . . . call any evidence''.

On the whole, until one has seen the proof of evidence of someone whom one has asked to attend as a witness, one is in no position to decide whether to call him. Until then, he is a speculative bystander who may or may not be able to help.

When I read the clause I took it that the requirement to disclose the names of witnesses related to someone whom a defendant and his legal advisers had decided to call to give evidence on his behalf. I would normally be surprised if that person's address were not known, unless, perhaps, after the witness statement had been obtained or the witness had been spoken to, he had moved and it was not possible to trace him. In that case, one would refer to him in such terms as ''Mr. Bloggs, previously of this address, but I do not know where he is at the moment.''

However, perhaps the intention is that a defendant will be required to inform the prosecution of people who he thinks might be able to help him, although he has not really any idea whether they will be able to. I had not understood that to be the thrust of the clause. If it is, I am slightly concerned that it goes too far. How on earth can someone decide whether a person who may be able to help should be called as a witness, without having had an opportunity to look into the matter? I do not think, in those circumstances, that a defendant should be required to tell the prosecution that he thinks there might be someone who can help him, but that he has not yet been able to trace that person, and that while he believes his name is so and so, he does not know where he lives. I hope that the Minister can follow the distinction. I should be grateful for his clarification of what is intended.

I think that unfairness could result from the interpretation of the clause that I have outlined. It might require a defendant to communicate the names of people who might turn out to be hostile witnesses, through no fault of the defendant's. He would be under no obligation to call them, and indeed would not want to. The matter could be used against him by the prosecution in the course of the trial. I should not want that to happen.

I want to be sure that I am following the interesting point that the hon. Gentleman is

making. Does he mean that new section 6C(1)(b) of the 1996 Act would not simply require the provision of information to the prosecution in substitution for a name of address that was not available? Might it include saying, ''I am going to call the man who was passing in the blue car, if I can find him''? That would present a real danger that the defence would go to the trouble of finding the man in the blue car, and would have to disclose that fact to the Crown, only for him to turn out to be a hostile witness or a sworn enemy. Perhaps, however, the Minister can clarify that the intention is only that the defence should have a duty to give as much information as possible to the police to help them to locate him.

The hon. and learned Lady is right. That is exactly the point. Anyone who wants to call a witness is first entitled to decide whether he wants to. Usually, the only way to do that is to obtain a proof of evidence, obtained from his solicitor, on the strength of which he may decide, ''Oh yes, he will be helpful to my case; I can call him.'' At that point he tells the prosecution the name and address, and if for any reason he cannot, he should provide all the information that he can to enable that person to be contacted. However, I do not think that he should be placed under the burden of identifying speculative witnesses whose names and addresses he does not know, who might turn out to be of no assistance to his case at all, and whom he might not wish to use. The important thing is the point at which the defendant has come to a firm decision with his legal advisors to call someone as a witness.

There is no amendment about my final concern, which may simply be to do with the drafting. New section 6C(1) of the 1996 Act says:

''The accused must give to the court and the prosecutor a notice indicating whether he intends to give or call any evidence''.

Is the word ''give'' supposed to be a reference to the evidence of the accused? I see some nodding from the officials. I am a little puzzled. If a defendant chooses not to go into the witness box—I see the Minister is about to interrupt me.

I am anticipating a point of procedural difficulty. It might be helpful for the hon. Gentleman to refer to the nod that he saw in confirmation of his points as coming from me.

Indeed. I shall refer to the nod from the Minister.

When a defendant does not go into the witness box to give evidence on his own behalf, that can be a legitimate matter of comment in a case. I do not have any problem with that. However, it seems that on at least one reading the defendant could be subject to a double comment: ''You haven't gone into the witness box to give evidence'' and, ''You told us you were going into the witness box to give evidence''. I am not sure that the latter comment is fair.

However, I appreciate that the point is arguable. There may be those who say, ''Well, you should jolly well decide whether you're going to go into the witness box, and tell the prosecution.'' However, the argument

bothers me. Events always take place at trials that may prompt defendants to decide not to go into a witness box. The Minister may be familiar with the way in which one's client is required to sign the back sheet, as advised, about all those matters on which he has chosen not to give evidence. It would be straying into difficult and murky water if there was a criticism of the defendant not only for not going into the witness box, but for saying that he would do so. I frankly do not think that that is necessary: it is a double comment. In those circumstances, I wonder whether it would not be sensible—no amendment was drafted, as I had not thought about the matter—to remove the word ''give''.

I want to make explicit something that was implicit in what the hon. Gentleman said, and on which I hope he will agree with me. Many is the trial in which the decision on whether the defendant will give evidence is taken only at the end of the prosecution case—rightly so, in the light of the nature of the evidence. To anticipate that is also a prejudice, in the sense that it suggests that one might at least have changed one's tactics for an improper or peculiar reason.

I am grateful to the hon. Gentleman. I apologise to the Minister: had I twigged on reading the relevant passage, I would have tabled an amendment. I am therefore raising a matter on which he may not have had a briefing note. In so far as he is able, having not been alerted to the matter, could he justify the inclusion of the defendant in the category? I would also be interested to see why that is thought to add anything, when it is already possible to make adverse comment on the defendant's failure to give evidence.

I wonder whether the answer might be provided by new section 11(4)(b) of the 1996 Act, as detailed in clause 34, which says that a comment can be made only when a witness not included in a witness notice is called, rather than when an included witness is not called.

The hon. Gentleman makes a good point. However, is not that all the more reason to query why the provisions have been included at all? In such circumstances, they could only place pressure on the defendant about whether he intends to give evidence himself, a question that a defendant should not properly be asked. I agree entirely with the hon. Member for Southwark, North and Bermondsey on that point. The time comes when the defendant has not gone into the witness box and damaging adverse comment can then be made. There should not be a requirement on the defendant in that context. Suppose he changes his mind. If no further adverse comment could be made under the provisions, the only adverse comment that can be made is that which can currently be made.

In which case, would not most defendants simply include their name and change their mind later, if they felt that that was appropriate, to no greater prejudice than that which currently prevails?

Well, yes, but in that case, why should there be a requirement? If there is no sanction in failing to go along, what is the requirement's purpose? As practitioners know, the issue of whether a defendant gives evidence is often difficult and traumatic, and a subject of dispute between counsel and defendant, hence the back sheet endorsement. With those problems, I think that the requirement is a mistake and will cause difficulties to practitioners. To comply, they will have to tell clients, ''Well, you're going to have indicate whether you intend to give evidence or not.'' I suppose that some may read the Hansard report of the Committee, but others may think that there might be some sanction over and above that which currently exists. If the requirement is not necessary, I ask the Minister to consider whether it might not be removed.

May I undertake to reflect on the fair point that the hon. Gentleman has made, and to which we can return? I hope that that is helpful.

The hon. Member for Southwark, North and Bermondsey asked a question about the list. It is supposed to include only those whom the defence intend to call, rather than being a speculative list. He also asked a question about ambush defences, which he acknowledged are rare. The royal commission on criminal justice Crown court research study No. 19 drew attention on page 142 to a survey that was done of prosecution barristers. According to that group, ambush defences were reported in 41 out of 601 cases in which there was a substantive reply to the question. That is some 7 per cent. The answer to the hon. Gentleman's fair question is that ambush defences are rare, but they happen. The provisions are therefore sensible.

Is that the research that was done for the Runciman Commission? If so, it is 10 years out of date, and expressed an opinion when there was, for instance, an adverse inference drawn from someone's not giving evidence or not setting out their case in interview. There is now much less scope for adverse inferences.

I accept entirely my hon. and learned Friend's point. The report that I referred to was published in 1993. However, the hon. Member for Southwark, North and Bermondsey asked what the research evidence was, as opposed to the general impression. I accept my hon. and learned Friend's point. However, to the extent that ambush defences might continue, the provisions are sensible.

The clause is designed to redress the present imbalance between the prosecution and defence disclosure requirements in respect of witnesses. The prosecution has a duty to provide the defence with copies of all the statements made by witnesses whom they intend to call to give evidence at trial. That is disclosed as part of the prosecution case.

The principle of requiring advance notification of defence witnesses is already well established. At present the accused has to provide details of alibi and expert witnesses whom he intends to call. For trial management purposes, the accused also has to indicate the number of witnesses whom he intends to call at the

pre-trial plea and directions hearing. That means that, at that stage, the accused must have decided which witnesses he is likely to call to give evidence. To go a further stage and require him to provide the details specified by the clause merely builds on existing requirements. That strikes me as reasonable.

The advantages to the measure are that it deters surprise witness and ambush defences in so far as that remains a problem, helps to weed out incomplete, inadequate or false defences—indeed, it enables the police to make criminal records checks on defence witnesses, thus helping the jury to assess their credibility—and allows the police to interview defence witnesses before the trial, if necessary, and to make further inquiries.

The amendments would remove the mandatory element of both the witness notice requirement and its components. If the accused is under no obligation to comply, the clause is rendered ineffective. We consulted on the proposals and there was an even response in favour and against.

The final issue was identified by the Chairman of the Home Affairs Committee. The Government recognise that it will be important both to reassure defence witnesses who may be interviewed by the police or the prosecution before trial, and to protect the prosecution from unwarranted allegations of misconduct in the course of such interviews. My noble Friend Lord Falconer said in evidence to the Home Affairs Committee—I see the hon. Member for Witney (Mr. Cameron) acknowledging it—that we accept the need to ensure that suitable arrangements are made for the conduct of interviews with defence witnesses. On Second Reading, my right hon. Friend the Home Secretary undertook to provide for a code of practice. We are considering, in consultation with others such as ACPO, how best to achieve that. We aim to introduce proposals for an interview code for consideration on Report.

As my right hon. Friend has already said, we envisage that the code will include a requirement to offer a defence legal representative the opportunity to be present. That would be in line with the solicitors' professional conduct guide. We also envisage including guidance on the use of audio recording in appropriate circumstances—another point that was raised by the Home Affairs Committee.

Can the Minister clarify the pre-notification that the prosecution will have to make to the defence if it wants to talk to one of its witnesses? Will the code of practice be specifically mentioned in the Bill? The Select Committee recorded on 5 December 2002:

''We would prefer to see a provision of this nature be included in the Bill, rather than left to codes of practice.''

In order to give us some certainty, will the code be referred to in the Bill?

The honest answer to the hon. Gentleman's fair question is that we are still considering the matter. However, I undertake to return to it on Report, and I am mindful, in reinforcing the comments of the Home Secretary on Second Reading, that the Home Affairs Committee

has raised a fair and important point about appropriate safeguards, so that justice is seen to be done in the operation of the new requirements. I hope that it is helpful to know that we shall return to the matter.

I am grateful for the Minister's factual answer to the question about how often that sort of defence has arisen. As the hon. and learned Lady pointed out, we are now 10 years out of date, so I accept that the figures must be taken with a pinch of salt. If any later evidence comes to the Minister's attention, it will be helpful to know about it.

In the case of many of the questions that have arisen during the debate, a fine balance has to be struck as to whether we should come back to them on Report. The Minister has gone halfway to reassuring us, but he will understand that it is appropriate to have further consultation and deliberation on issues that are still causing concern before we sign up to the clause, or decide that it is not something that we can sign up to. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill:—

The Committee divided: Ayes 12, Noes 2.

Question accordingly agreed to.

Clause 29 ordered to stand part of the Bill.