I beg to move amendment No. 200, in

clause 30, page 19, line 22, leave out 'must' and insert 'may'.

With this it will be convenient to discuss the following amendments: No. 229, in

clause 30, page 19, line 25, leave out subsection (2).

No. 201, in

clause 30, page 19, line 28, leave out 'must' and insert 'may'.

No. 230, in

clause 30, page 19, line 29, at end add—

'(4) In the event of the expert evidence of a person named in subsection (1) above not being relied upon by the accused and no copy of his report having been served by the accused on the prosecutor, no reference shall be made of trial by the prosecutor or

evidence adduced by him, to the effect that the accused had approached such person for his expert opinion.'.

The clause deals with notification of the names and addresses of experts instructed by the accused, and the amendments would simply make it optional, rather than compulsory.

I want to take the opportunity to raise two issues, so that we need not return to them on clause stand part. First, the defence often seek expert reports. That is less true in legally aided cases, in which one must get authority to instruct experts. Defendants in such cases are unlikely to seek out and use a variety of experts, but those who are not legally aided, and who have the necessary finances, can do so. In seeking helpful expert reports, however, the defence may come across several bits of so-called expert advice that are not at all helpful, and the same may be true of the prosecution. The concern is that no prejudice should be attached to trying to find someone to deal adequately with a specific point, when the first so-called expert that one was advised to consult was unable to deliver.

There is also a constitutional point. There is obviously an entitlement not to incriminate oneself. There is plenty of case law on that, and there are plenty of precedents of judges ruling that measures must be taken to avoid self-incrimination. Have the Minister and his colleagues asked themselves whether the clause—with its compulsory, rather than optional element—prejudices that entitlement? Does it cross a line and put the defendant at risk by requiring him to reveal information that may be unnecessary? He may provide it in all innocence and in good faith, but it may not be helpful to him, through no fault of his own.

To my mind, this is an important clause, and it has given me a lot of anxiety. I do not know how the debate on the amendments will develop, but I suspect that it will serve as a clause stand part debate. I therefore hope that I will be forgiven for widening the scope.

In a delicate way, amendment No. 200 is a wrecking amendment. I do not mean that unkindly, but it effectively negates the thrust and bite of the clause.

I have tabled a couple of amendments, and I shall come to amendment No. 230 in a moment. It might just provide a compromise on a clause that I otherwise would find it difficult to support.

I turn to basic principles. We had an interesting debate a few minutes ago about whether the requirements of clause 29 would involve notifying the prosecution of the names and addresses of speculative witnesses of fact, whose evidence had not yet been tested. I was interested to hear the Minister's answer—I found it extremely reassuring—which was that that was not the intention. However, under clause 30 we have precisely that. The defendant who approaches an expert with a view to ascertaining whether that person might be in a position to give evidence that would help his case is required to reveal the fact that he has done so and to reveal the identify of that person to the prosecutor.

If one views witnesses of opinion and of fact as being identical in quality, the first major inconsistency is already creeping in. At the time when the requirement is being placed on the defendant to supply that information, there is no reason why he should have made up his mind whether to make use of that expert evidence. However, the matter goes further than that; the question is, what is an expert witness? In my view, an expert witness is a different animal from a witness of fact. He is brought in by the defence team, usually on the advice of the legal advisers, who want to know whether his professional expertise can provide evidence that could be placed before a jury—not to persuade the jury of a fact but to give information on which they can form their own opinion and judgment of the facts. I fail completely to understand the basis for this requirement.

What is the intention behind the clause, and what prompted the Government to believe that the provision was necessary? There may be a number of reasons. The first that I can think of—I detect that it may be the case, because I recall having read previous utterances of the Government on the subject—is that it is supposed to be an equal and level playing field. The prosecution will have a duty, if they approach an expert to back up their case who supplies a report that turns out to be unhelpful to their case, to disclose that information to the defence.

I do not think that that is a good analogy, however, because the duty on the prosecutor to make disclosure that we debated on clause 27 is the duty that lies upon the prosecutor as a minister of justice to ensure that no stone is left unturned, which includes taking points against himself, to ensure that justice is properly done during the trial. The duty upon the prosecutor is entirely different from the duty that falls upon those who represent a defendant. Their job is to listen to the defendant's case, to present his case in accordance with the facts, to challenge evidence in accordance with his instructions, and not knowingly to mislead the court on any matter; but they are subject to the defendant's instructions and the limits of his case.

The proposals drive a coach and horses through the legal professional privilege between a defendant and his legal representatives. If a defendant is in trouble he can give his legal representatives a case, which they think may be helped by expert opinion. However, if the expert opinion does not help that does not necessarily mean that the defendant has not been telling the truth; it merely means that they could not find an expert to help them.

What is the philosophical or practical reason for requiring the defence to divulge that information to the prosecution? It will make it very difficult for defendants and their representatives to decide whether they should seek expert help. That is the real mischief in this clause. Anyone advising a defendant would have to point out to him that, for example, an expert on how motor cars are constructed might be able to help him, but that if the expert could not help that might be used to the defendant's disadvantage.

What is the intention behind the clause? What use will the prosecution make of the information that they have been given?

The hon. Gentleman makes an extremely interesting point. Will he consider the dovetailing of proposed new section 11(4)(b) and 11(10), set out in clause 34? It seems to me that we create two types of witness notice through clauses 29 and 30; new section 6C in clause 29, and new section 6D—expert witness notice—in clause 30. The proposed new section 11(10)(e) set out in clause 34 refers only to the ''witness notice'' of new section 6C and not to the expert witness notice of 6D. The proposed new section 11(4) states that only when a defendant calls a witness who was not included in a witness notice can adverse comment be made.

We know that at present an expert witness is considered to be in a different category from other witnesses. If one is to rely on an expert witness at trial on behalf of the defendant, one must serve the witness's report on the prosecution beforehand. His existence and the defence's reliance on him are fully divulged. There may often be a prosecution expert to whom the defence are responding. Alternatively, there may be no prosecution expert and the fact that one must serve that expert's report is designed precisely to prevent any ambush defence. It also gives the prosecution every opportunity to find their own expert to counter fingerprint, ballistic or firearms evidence. All sorts of experts creep in and out of court.

The hon. Gentleman is right; I find it difficult to see that clause 30 has any relevance to the possibility of an expert witness's being called without proper notice having been received by the prosecution. At present, if an expert were called at very short notice there would certainly have to be an adjournment so that the prosecution could find their own expert witness to counter what could be damaging evidence against their client. It might also be subject to considerable comment by the judge, if not to the jury then certainly to those who did it. He might even refuse to admit the evidence.

I take the hon. Gentleman's point. I can see the link-up in the text, but I cannot really see the practical link-up between clause 30 and clause 34, with its various sanctions.

Looking at the interplay between those provisions, I simply wonder whether it would be possible for any adverse comment to be made at trial if an expert witness is indicated as likely to be called, only for him not to be called.

That is absolutely right. However, I draw only two possible conclusions from the presence of the clause. It may be designed to allow the prosecution to be given notice that somebody has come up with an adverse report to the defendant. The prosecution can tootle to the expert and say, ''Why don't you come along and be our witness instead of his?'' That raises a host of practical issues about the status of the report that was provided, and I find it extraordinary in view of the availability of experts to give reports.

A much more unpleasant possible consequence arises if a defendant has never had any intention of calling as a witness an expert to whom he has gone. The defendant would have to tell the prosecution that he went to that person, and it would emerge that he chose not to call him. That could be used as a weapon against the defendant in cross-examination or in the prosecution's speeches. It fills me with horror that we could contemplate something that would create such manifest unfairness.

I, too, find this an interesting argument. A difficulty with seeing that as the major mischief behind the proposal is that it happens already. The hon. Gentleman has tabled an amendment to stop it from happening.

A defendant's case may contain an issue for which expertise would be required. If the defendant does not call an expert, he is frequently asked during cross-examination, ''Have you instructed an expert? Are you calling an expert's evidence?'', only for no expert to appear to support his case. However, if the defendant has instructed someone, that person clearly did not disagree with the prosecution or else they would have been called.

My fear is that the prosecution will call the defence experts. They will have the master card in their hand at the outset, of saying to the expert, ''Who first instructed you?'' The prosecution will not only have an expert who supports their case but one who was originally asked by the defence to support theirs. That could have a massive—and pretty unfair—impact on trials.

The hon. and learned Lady is absolutely right: that could be an even worse consequence.

Amendment No. 230 was partly designed to find out the Government's intention. It would be prevent any reference being made at trial to the fact that the defence had originally instructed such an expert.

As the hon. and learned Lady said, that already happens, but it will happen far more if the prosecution have been handed on a plate the basis to behave in that way. Speaking as a prosecutor, I must say that it is a dangerous tactic, and one that can easily prove not to be in the interests of justice, to start lambasting a defendant for not bringing an expert to court. It would be a different matter had he chosen not to call a witness who happened to be sitting outside the court and who would have been in a position to provide useful evidence.

The clause makes me uneasy. I am happy to listen to the Minister. I tabled amendment No. 230 because I felt that it might help crystallise the debate. I also tabled another amendment to leave out subsection (2), because I cannot for the life of me understand the necessity of including it at all. I consider it otiose in relation to the totality of part 5. However, that is a drafting matter that I do not want to press further. An important point is at stake here. It is a great mistake to start wandering down this road, and I do not understand what the Government are trying to achieve by it. The damage that it will do will hugely outweigh any beneficial consequence to the

administration of justice, the search for the truth, or any of those other terms that we like to consider. The Government would do well to drop it.

I perceive the mischief that the clause is intended to attack—at least, I think I might. I suspect that some of it derives from the Damilola Taylor case. In that case, as I understand it, the prosecution forensic pathologist was quite clear that the boy's death could not have been an accident. Because no defendants were under arrest by the time Damilola's parents wanted a funeral, the coroner ordered another post mortem to be carried out, to be furnished to the defence for such defendants as might be arrested and put on trial. The funeral then took place. No one but the defence ever saw the second post mortem report. It was not used in evidence. Consequently, it seems as if the inference to be drawn—certainly the inference of the Sentamu report—was agreement with the prosecution case that the death could not have been an accident.

The defence did not call a third forensic pathologist, which was not possible, because the body was gone, but called an accident and emergency consultant, to say that in his opinion the death could have been an accident and that Damilola could have fallen on the bottle. I suspect that, granted that there were weaknesses in the prosecution case relating to the 12-year-old witness, and that a doubt had been raised as to whether the death was murder or an accident, the tactic of calling the accident and emergency consultant might have played a significant role in the acquittal.

I appreciate that the acquittal is generally seen as wrongful, but I have no view about it myself. I can see how lay people might be very concerned that what appears to have happened is that the Crown obtained a report concluding that there was a killing and the defence obtained a report that said the same, but hid it and produced something else saying the opposite. If that is what drives the clause it is, generally speaking, unnecessary for it to be used, for the tactic was an extreme one for anyone to have taken. In my opinion it came very close to not being a proper tactic. Certainly, if a defence barrister is aware that an expert report obtained for his client states X, he is not entitled firmly to put Y to a prosecution expert. The defence should be guided and restrained a little by the knowledge that they have a report in their pocket agreeing with the prosecution, from a credible expert, and that they cannot do a wholesale cross-examination of him. I can see, from reading about the case, the mischief on which the clause is focused, but I want reassurance that the technique in question is not used much.

Many mischiefs that could follow from the provision have been outlined by the hon. Member for Beaconsfield, and one is that legal aid limits the expert evidence that can be sought by the defence. The prosecution has, in theory, unlimited resources, and can obtain as many expert witnesses as it wants. Indeed, in an appeal in which I was involved, the McNamee case, 11 expert witnesses were called about a fingerprint.

The defence will apply to the legal aid fund saying that they need an expert report. The one they get may not be helpful, but they will have to disclose it to the prosecution. They might not then be given legal aid to get another, because they have exhausted their right to further aid. Even if, exceptionally, they do get it, and the second report supports their case, they will have already furnished the prosecution with the first report, and the score will be 2–1. That will pose a practical danger for the defendant.

I should add that expert reports are matters not of fact but of expert opinion. The defence might get a report from Dr. X, saying that the defendant has not got battered woman syndrome. They might then hand it to the prosecution but not be allowed to look for another expert, even though Dr. Y says that the defendant does have battered woman syndrome. That might make the difference in determining whether a victim of domestic violence who turns on her abuser is convicted of murder or of manslaughter.

For all those reasons, this is very dangerous territory. As far as I can see, the proposals can have only an adverse effect on the defence. At the same time, I wonder how they will assist the prosecution and the witnesses. How will they help victims, in whose favour we are trying to balance the criminal justice system? The Crown can get as many reports as it wants to discover expert opinion on the issue, and nothing is added to its case by taking ones from the defence. There is a need for considerable thought about the proposals.

We have had a useful discussion on the clause. It might be helpful if I begin by reminding hon. Members where the Government found themselves when we originally consulted on the proposals. It was proposed that the content of the unused expert witness reports should be disclosed. We sought views on that proposal, and the overwhelming consensus was that it was not a good idea. We listened and acknowledged that. We are now left with a genuinely modest measure, and I ask hon. Members to reflect on it in that light.

The general principle running through the present set of clauses is that disclosure obligations should be equally balanced. As we have heard, the prosecution must disclose to the defence before the trial copies of reports by any expert whom they intend to call to give evidence.

As regards adverse inference, my hon. Friend the Member for Wellingborough was absolutely right that it is not an issue in the interplay between this clause and clause 34. In one sense, that offers protection.

What are the reasons behind the provisions? First, there is the issue of shopping around. I entirely accept that that is not an issue with publicly funded defendants, but it may be with those who privately fund their defence. That is why I say that this is a modest measure.

Secondly, the provisions may enable the prosecution to approach and consult expert witnesses with a view to obtaining evidence to support the

prosecution case. The hon. Member for Beaconsfield acknowledged that that raises issues of privilege and professional practice, and it will be for the expert concerned to decide whether to accept an instruction from the prosecution after having been consulted by the defence. Could the prosecution call the defence expert to give evidence for the Crown? It would be open to them to do so, but they would need to satisfy the court that the expert could give admissible evidence that was relevant to the issues in dispute. Of course, the legal professional privilege rule would prevent the expert from being questioned about any work done for the defence. I understand the concerns expressed, though I do not share them. The provisions are very modest.

Incidentally, the Home Affairs Committee made a fair point in saying that it accepted the need for the clause. It welcomed the response that the Government had made to consultation on the broader issue of disclosing the contents of the report. It asked to what extent the provisions would work in practice. They would be of assistance in two examples that I gave. The measure is modest.

One point that troubles me is whether legal professional privilege will apply to the report, the contents, and the evidence of the expert whom a defence team instructed.

Is my hon. Friend talking about the report prepared for the defence but not used?

I am talking about the report and its contents—not the document only, but the opinions derived from it.

The point that my hon. Friend raises goes to the heart of the issue. Suppose the defence have consulted an expert whom they decide not to use. If the name is then released to the prosecution and they decide to consult, the expert must decide whether he feels able to accept the commission in the light of the consideration that he initially gave to the defence's request. The answer to my hon. Friend's question is that matters would depend on the circumstances. However, I hope that I can assure hon. Members that the legal professional privilege rule would prevent the expert—I repeat the point for the avoidance of doubt—from being questioned about any work done for the defence. However, that might not stop the prosecution from separately commissioning the expert and asking questions about the issues that are the subject of debate. I accept the point that my hon. and learned Friend the Member for Redcar made about expert opinion, which might not assist the process of the trial.

I listened to the Minister carefully. However, he did not persuade me at all. He described the measure as modest. I return to the two principal matters that he identified. He said that the provisions will prevent shopping around. The point was made—I think that he accepted it, as do I—that a legally aided defendant will not be in much of a position to shop around. However, why should people not shop around?

I ask the Committee to consider recent cases that have been referred to the Court of Appeal under both

the new procedure and the old references of miscarriages of justice. A lot of them have depended on expert scientific evidence, which in some cases cleared those appellants, sometimes after many years in prison. That evidence was obtained through shopping around and finding a person who was prepared to listen to the defendant's case, to apply his professional expertise and to get the court to accept that expertise. I do not accept that shopping around to find an expert to support a case is inherently wrong. It might be a great waste of time or money for a non-legally aided defendant. It might be an attempt to clutch at straws to prevent oneself from being convicted.

However, one cannot escape the fact that prosecution experts have been shown, time and time again, to be wrong, incompetent and—sometimes—drunk. I remember the case of the late Dr. Frank Skuse and the gelignite on the fingers of the Birmingham bombers. He was subsequently discredited by scientific evidence that was not available at the trial. I presume that no one was available at the time to counter his evidence. I do not remember, as it was such a long time ago. Someone was eventually found who helped to persuade the Court of Appeal that the original decision was wrong. It is starting off on the wrong foot to say that shopping around for experts is somehow a nefarious activity. The hon. and learned Lady rightly picked up on comments that came out of the inquiry following the tragic murder of Damilola Taylor about anxieties concerning the use of experts. However, the clause is not required to deal with shopping around, and I do not want it to be.

The Minister comprehensively answered his own question about the possibility of the prosecution making use of the expert when he said that it would be extremely difficult to do so. It might be possible to take the prosecution's facts to the expert, but how that expert would blot from his mind the material that he received under legal professional privilege from the other side would raise extraordinarily difficult issues about admissibility of evidence.

I have listened carefully to the hon. Gentleman. I acknowledged that there would be difficulties, but is he saying that it would be impossible in all circumstances for the situation to occur? If he does not think that it would be impossible, does that not reinforce my point that a modest measure may apply in those cases and may be helpful?

I accept that it might not be impossible, but it would be very unlikely. Whether it would be desirable is another issue. Advisers have an obligation not to mislead the court by misrepresenting the case. However, they have no current obligation to divulge matters that might be prejudicial to their client's case, and there is no proposal in the Bill to impose such an obligation on them. The proposal is a serious inroad into that principle. I find it impossible to justify, and would not want to do it. After all, the prosecution has access to enormous lists of experts. As the hon. and learned Lady said, it can shop around. If it finds that an expert does not support its case, it can go to someone else, although it does, of course, have to

reveal that to the defence. It is inherently unlikely that the prosecution would want to use an expert once it had been told that he had been approached by the defence, unless it were in some way to attack, rubbish or criticise the defendant when he gave evidence—the most important point. That would be very undesirable.

I cannot say more than that, but simply urge the Government to reconsider the matter. If the proposal is so modest, why pursue it at all when all parties are expressing such anxieties about the impact the proposal could have on the fairness of trial proceedings. I urge the Minister not to be swayed by what I am sure are well meaning and, in many respects, extremely well reasoned reports produced after tragedies or horrible murders. We cannot introduce sound legislation on that basis.

I intend to ask for the opportunity to press amendment No. 230 to the vote. If I cannot secure that amendment, I will not vote against the clause in the clause stand part debate, as it is my intention to return to the matter when other hon. Members of the House, not just Committee Members, may have an opportunity to express their views for or against it. I do not think that we should prejudice that by voting on it at this stage.

If possible, I should like to put amendment No. 230 to the vote. It would draw the sting from the primary use of disclosure, although I would still be unhappy even with an amended clause 30. However, it would at least be an improvement. I do not like the intention at the heart of clause 30; it is a terrible mistake.

We have had an important debate on an important issue and, like the hon. Member for Beaconsfield, I am persuaded by the case. One of the reasons that the defendant should not be prejudiced is that the choice of experts and the decision to call in an expert is inevitably not theirs; they are advised to do it. It prejudices an individual whose liberty is in question as a result of a professional decision by someone else—technically, with the defendant's consent, but often with not much more than that. That puts the defendant at a considerable disadvantage.

I accept that, as the Minister pointed out, the Government have moved on the matter. They started with disclosure of the evidence and moved to disclosure of the fact that an expert had been consulted. However, it still allows the prosecution to pick up the work that was done on behalf of the defence and to use it, subject to the professional integrity of the so-called expert. It presumes that it is unhelpful to have a so-called expert whom you do not call. It presumes that if defendants ask for the opinion of more than one expert because they are not on legal aid or because they can manage to do so otherwise, they are doing so for wrong and improper purposes.

I can think of a very important case before the courts at the moment, the details of which I shall not mention. It centres on a case that was the subject of a criminal investigation before and which is now the subject of a debate centring on the appropriateness of

experts' reports and the conclusions that they drew. They often concern matters on which experts disagree; it often comes down to whether the expert has particular experience of a particular sort of case—a particular weapon in a particular climate, for example.

We must be very careful not to prejudice the defendant. I am not persuaded; I am also keen to preserve our right to return to this matter later. Therefore, to save the Committee's time and to have a right to protest against the clause, I seek leave of the Committee to withdraw my amendment. I shall support the amendment tabled by the hon. Member for Beaconsfield. Although I will not oppose the clause any further today, unless the amendment is carried, I give notice that we shall expect to return to the matter. We need to be persuaded, and we are nothing like persuaded. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 230, in

clause 30, page 19, line 29, at end add—

'(4) In the event of the expert evidence of a person named in subsection (1) above not being relied upon by the accused and no copy of his report having been served by the accused on the prosecutor, no reference shall be made of trial by the prosecutor or evidence adduced by him, to the effect that the accused had approached such person for his expert opinion.'.—[Mr. Grieve.]

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 10.

Question accordingly negatived.

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 amendment proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill.

Question agreed to.

Clause 30 ordered to stand part of the Bill.