Mr Dominic Grieve (Shadow Attorney General, Home, Constitutional & Legal Affairs; Beaconsfield, Conservative)

I beg to move amendment No. 89, in clause 12, page 8, line 5, at end add

'of all matters against the Defendant.'.

We now come to a part of the Bill that is fairly controversial. I hope that I will be excused if I make a few general remarks. Doing so might enable us to shorten the debate on clause stand part, but that is dependent on the Government's response, particularly on Government amendment No. 57, which we shall discuss in a moment and which fills me with gloom and despondency.

The Solicitor-General will recollect that during the passage of the Criminal Justice Bill through the House any restriction on the right of trial by jury was fiercely contested, and that at the end of the day the

Government had to back down. They used the face-saving device of having one area that involved lengthy trials being subject to a double-lock mechanism of the resolution of both Houses of Parliament—something that is most unlikely ever to happen. I said to the Minister at the time, and I say it again, that the official Opposition accepted that there was a serious issue in relation to lengthy trials with multiple counts—indeed, not even lengthy trials but those that required multiple counts to be stated upon the indictment for the purpose of enabling the full gravity of a defendant's offence to be made clear.

In the past, such cases were dealt with by offences being taken into consideration at the closure of the trial on sample counts only. However, after court decisions, which were inevitable, in the late 1990s it was firmly established that unless a defendant accepted other offences being taken into consideration, they could not be considered by the judge when he formed an overview of the criminality of the defendant on conviction. We were left with an indictment loaded with multiple counts saying much the same thing, or we proceeded on sample counts only, which might not be representative of the defendant's criminality. If the defendant refused to accept the other offences being taken into consideration, he could be sentenced only on offences of which he was convicted. I have always accepted that that was unsatisfactory.

If somebody lays their hands on a credit card and uses it 150 times, he is obtaining property by deception each time he uses it and is thereby committing 150 separate offences, and if the jury were required to consider all 150 counts, it would be placed under a considerable burden. In the past, that would have been unnecessary because the defendant would have been charged with half a dozen counts—one at the start of the period when he obtained the credit card, several in the middle and one at the end—and the judge would have been invited to take the other counts into consideration on conviction. In the old days, even if the defendant said that he did not accept that, the judge could still impose a sentence on the basis that he had committed the offence, but he can no longer do that.

That reinforces my view that there is a justification for a change to be made to the law in respect of such circumstances. However, we have always been anxious that that change should not simply be a device whereby the Government open the floodgates and restrict the right to jury trial. The devil is in the detail. When I first read the clause I was not impressed, because it was drafted—perhaps it is modern drafting practice—in such a way that it gave the impression in clause 12(1) that the prosecution could

''apply to a judge . . . for a trial on indictment to take place on the basis that the trial of some, but not all, of the counts included in the indictment may be conducted without a jury.''

The first message is wrong, but I accept that it is further qualified as one reads the other subsections.

My first amendment, No. 89, deals with a discrete point and, if we address that quickly, we can, perhaps, deal with the much wider point, which is the

Government's intention to get rid of an important Lords amendment. I hope to be able to speak to that this morning, because I have to attend a funeral this afternoon.

One provision included by the Government in subsection (6) is that the judge, when deciding whether to allow certain counts to be tried without a jury if a person is convicted with a jury on the sample counts,

''must have regard to any steps which might reasonably be taken to facilitate a trial by jury.''

I assume that that means that the judge would discuss the matter with the prosecution, saying, ''Look, you have 60 counts on this indictment and you want to try 10. Wouldn't it be better to select 15 and drop the other counts, giving me sufficient basis on which to sentence? Some of the counts amount to a total criminality of £50,000, whereas the other counts only total a further £3,000. Will you please consider that?'' I assume that that is what subsection (6) is intended to achieve, but I am not sure that it does so. I tabled the amendment to make it clear that the judge has to consider what can be done to facilitate a trial by jury

''of all matters against the Defendant.''

I hope that that is already implicit in subsection (6), because I assume that that is what the Government intend. The Minister might agree with me that subsection (6) is slightly nebulous. What are these steps that

''might reasonably be taken to facilitate a trial by jury''

—and a trial by jury of what? Subsection (6) does not say. I assume that it must be of all matters against the defendant, in which case I urge the Minister to accept my amendment, which in no way detracts from what he is trying to achieve, but makes it clear what it is that the judge must set out to do.

I hoped that I would have an opportunity to speak to the Government amendment to the clause, but I fear that I will not. If I am not here to respond later, I would like to place on record that I believe that the House of Lords has correctly amended clause 12—

Mr Joe Benton (Bootle, Labour)

Order. I need to point out to the hon. Gentleman that we are not discussing the Government amendment.

Mr Dominic Grieve (Shadow Attorney General, Home, Constitutional & Legal Affairs; Beaconsfield, Conservative)

I appreciate that, Mr. Benton, and I apologise. I hope that the Government will accept the Lords' amendment.

Ms Harriet Harman (Solicitor General, Law Officers' Department; Camberwell & Peckham, Labour)

As the hon. Gentleman says, this is a small amendment. He is trying to draw out issues that he rightly says we need to discuss in relation to the Government amendment and issues that surround the context of clauses 12 to 16, which deal with multiple offending.

Perhaps I can assist the hon. Gentleman by explaining that we will resist his amendment on two grounds. First, subsection (6) serves as belt and braces for the provision in subsection (3), which says:

''The first condition is that the number of counts included in the indictment is likely to mean that a trial by jury involving all of those counts would be impracticable.''

I was trying to short-cut my point there, and I will have to refer back to that later.

We agree that jury trial referred to in clause 12(6) means a trial of all the counts, as it is the inability to hold such a trial that would justify using the two-stage procedure. We are therefore not persuaded that the drafting change in the amendment is necessary. One of the things that subsection (6) could apply is the severing of the indictment and holding two separate trials. Subsection (1) states that the judge must make an order for the trial

''to take place on the basis that the trial of some, but not all, of the counts included in the indictment may be conducted without a jury.''

Three conditions then follow. The amendment does not help and is unnecessary. Clause 12 exists to prompt the judge to consider whether there is any other way of dealing with the counts. That addresses the point raised by the hon. Gentleman about whether the indictment should be severed.

Mr Dominic Grieve (Shadow Attorney General, Home, Constitutional & Legal Affairs; Beaconsfield, Conservative)

The Solicitor-General has not completely persuaded me because there is a difference between the trial of all the counts and the trial of all the matters against the defendant. I highlighted that in my opening remarks when I said that, without this provision, I would normally expect in a criminal trial with multiple counts for the judge to discuss with the prosecution and defence whether it was possible to reduce the counts on the indictment. The classic way of doing that is by saying, ''Some of these counts don't really add anything, as they are very minor matters. He obtained £5, and that is of no consequence, but on the other day, he obtained £15,000.'' That is why I specifically used the expression ''all matters'' not ''all counts''. It must logically follow that if the judge is confined to examining how to have a trial of all the counts, he must have severance; or he must say, ''There are not so many counts that the jury can't handle it, and the jury will be able to handle it''; or he must say, ''We will have a trial of some of the counts and the rest I will deal with on a sample basis.'' I thought that my amendment added something, but the Solicitor-General has partially reassured me on the Government's intention, so I will not press it. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Ms Harriet Harman (Solicitor General, Law Officers' Department; Camberwell & Peckham, Labour)

I beg to move Government amendment No. 57, in

clause 12, page 8, line 14, leave out from beginning to 'and' in line 15.

I am very sorry that the hon. Member for Beaconsfield is filled with gloom and despondency—he need not be. I assure him that we are not talking about a restriction of the right to jury trial, and it is certainly not opening the floodgates.

Let me set out for the hon. Gentleman the reasons why we want to amend subsection (9) by removing paragraph (b), which was put into the Bill in another place. The purpose of the two-stage procedure is to replace the old sample count procedure. We are not creating a new procedure. We are regulating a procedure that has been going on since time

immemorial but that the courts said needed to be sorted out and put on a proper footing. The old sample count procedure was disapproved by the Court of Appeal in the case of Kidd. This is not intended to do any more than provide a proper statutory replacement for the former procedure. If he could live with the former procedure—albeit recognising its shortcomings—he ought to be able to live with this one, because it simply improves on, and give better safeguards for, what used to be the case.

A replacement is needed. We cannot leave the situation as it was left by Kidd; I accept that the hon. Gentleman has acknowledged that. Where alleged criminal behaviour consists of activity that is repeated many times against a long series of victims, it is impossible for the number of counts that can reasonably be included in the indictment to represent—or come anywhere near representing—the scale of the alleged criminality.

That has two unfortunate results. First, even if the defendant is convicted of all the counts on the indictment, the court may be unable in sentencing him to take account of more than a fraction of his offending. For example, as the hon. Gentleman said, if a scam nets only a small profit each time, the proceeds of the counts of which someone is convicted on the indictment might add up to only a couple of thousand pounds, whereas the total profit realised by the fraud might run into six figures; the Serious Fraud Office feels very strongly about that. In those circumstances, as the indictment would not reflect the totality of the offending, the court would be unable to impose a sentence that bore any relation to the seriousness of the crime. It is common ground that that is unacceptable. There is another issue that gets to the point about the £10 and the £1,000. We have to think about the situation of the victim: in the totality of offending, £10 might be a small amount, but it might be a big thing for the individual victim.

The second unfortunate result is that in such a case most of the victims will be denied the satisfaction of knowing that the defendant has been tried and dealt with for the offence committed against them. That is also unacceptable, and it causes a lot of complaint. It is not good enough for the judges and prosecutors just to talk together about the global figure, and to forget that the victims want justice. The public want that, too.

I quite understand that the purpose of subsection (9)(b), which was added in another place, is to ensure that the courts adopt a narrow interpretation of what is covered by the two-stage procedure. Our objective is the same. That is why we have the three conditions set out in subsections (3), (4) and (5).

I have explained the sort of circumstances in which we expect the two-stage procedure to operate. There is no intention of its being used to deny a jury trial in respect of cases that would now receive one. All we want is to allow cases to go before a court that at present cannot do so, but which were able to pre-Kidd.

Nor is there any intention that defendants who have been tried by jury on one count should be tried for other, tenuously related offences by a judge sitting alone. The hon. Gentleman expressed that concern—

he was obviously thinking about that sort of thin end of the wedge. Let me put his mind at rest. Rule 9 of the indictment rules—I have no doubt that he is familiar with them—will still apply. It provides that in order to be included on one indictment, charges must

''be founded on the same facts, or form or are a part of a series of offences of the same or similar character.''

We are saying that if we have indictment rule 9 and the three conditions that are set out, we do not need paragraph (b).

Mr David Heath (Shadow Minister (Home Affairs), Home Affairs; Somerton & Frome, Liberal Democrat)

I rise to make the rather obvious point that subsection (9) sets out not conditions but a definition. If the Solicitor-General wants a definition, it should be a proper definition. If she does not, subsection (9) could be left out altogether. However, removing paragraph (b) creates an incomplete definition, which is surely unsatisfactory.

Ms Harriet Harman (Solicitor General, Law Officers' Department; Camberwell & Peckham, Labour)

The distinction between conditions and definitions can be artificial.

I want to urge another point on the hon. Member for Beaconsfield. Committee members could identify all sorts of preconditions—we could think ourselves up hill and down dale—but at some stage we have to decide where the balance lies between legislative prescription and judicial discretion. Usually, I err on the side of legislative prescription, but given that the judges will be familiar with the circumstances and with rule 9, and that they will be guided by the conditions defining what sort of cases will get through and be regarded as sample counts, I do not think that we need the belt and braces of (9)(b).

Nor is that all: there are other safeguards. Before a judge may order the use of the two-stage procedure, he must decide that jury trial of the whole indictment would be impracticable. We will not even get there unless the decision is made that the jury trial on all the counts of the indictment would be impracticable. That is condition No. 1.

Ms Vera Baird (Redcar, Labour)

That is reassuring, but I am not sure that it is reassuring enough. To say that the judge has to be satisfied that it is impractical to try all the counts is a very high test. In a case of 200 counts, nobody would have an interest in trying all of them. If one wanted to establish the gravamen of a case with, say, 200 counts of fraud, and some counts were bigger than others, the person in question would not get six months for one count and 199 times six months for the rest.

There comes a finite time at which it is not in anybody's interest to go on to the bitter end and keep trying extra offences, which will not add a penny's worth of sentence. It is a very imperfect test that requires the judge to decide that one cannot try all of an indictment, when in reality nobody would think of doing that. A narrower test needs to be considered—this one is too wide.

Ms Harriet Harman (Solicitor General, Law Officers' Department; Camberwell & Peckham, Labour)

Subsection (3) sets out only the first condition; one would move on to the second and third conditions and then have to be compliant with article 6 of the European convention on human

rights. We need to remember that we are improving the safeguards that were absent before Kidd. We do not want to go over the top and find that we cannot have what we all agree we need to have: similar sample counts tried on the same indictment separately.

Mr Dominic Grieve (Shadow Attorney General, Home, Constitutional & Legal Affairs; Beaconsfield, Conservative)

I appreciate the distinction, and the point between us may be narrow. Clearly, the safeguard of judicial discretion might prevent the mischief that I see could arise from the way in which the clause is drafted. However, the trouble is that rule 9, which the Solicitor-General prayed in aid, is not an adequate safeguard, because under the Bill it would allow a jury trial to take place on obtaining by deception with one card, and would subsequently allow a completely separate card to be the subject of trial without jury because it had been linked in one indictment. To my mind that is completely unacceptable. Subsection (9)(b) was carefully inserted in the other place to prevent that from happening.

Ms Harriet Harman (Solicitor General, Law Officers' Department; Camberwell & Peckham, Labour)

The hon. Gentleman ought to find reassurance on that point in subsection (4), which reads as follows:

''The second condition is that, if an order under subsection (2) were made, each count or group of counts which would accordingly be tried with a jury can be regarded as a sample of counts which could accordingly be tried without a jury.''

We come back to whether something is genuinely a sample. If the hon. Gentleman is not reassured by subsection (4), I point out that the judge will have to go through subsection (9)(c), which says:

''the judge considers that the sample count is a sample of the other counts.''

Mr Dominic Grieve (Shadow Attorney General, Home, Constitutional & Legal Affairs; Beaconsfield, Conservative)

I think I know what a sample means—we lawyers use the phrase ''sample count'' all the time, but that phrase is not defined. A sample count is what a judge considers a sample count to be, and we have to be careful under the clause to ensure that the absence of a definition cannot be abused. The Solicitor-General has not said why subsection (9)(b) prevents or impedes the interests of justice, which she is trying to further, as am I. If she gave me a good reason against the provision, I would be open to persuasion; but at the moment I am not persuaded, and I think that it is a good provision.

Ms Harriet Harman (Solicitor General, Law Officers' Department; Camberwell & Peckham, Labour)

Moving swiftly on to deal with the very point that the hon. Gentleman raises, I agree that we do not have a definition. We have the name, ''sample count'', and we have conditions, which provide enough safeguards and are acceptable.

The reference to the familiar expression ''sample count'' is deliberate—we intended to refer back to the pre-Kidd procedures. Judges know perfectly well what a sample count is. We are confident that the issue can

safely be left to the judiciary's discretion. The Law Commission is content with the approach that we have taken, although I concede that it was not its original proposal.

Subsection (9)(b) is unhelpful for two reasons. First, cross-admissible evidence is evidence of one offence that tends to show that the defendant is guilty of another. Evidence has to be probative of an issue in the case in order to be cross-admissible. The sort of fraud cases that the hon. Gentleman said were particularly suitable for the two-stage procedure simply consist of repeated similar allegations that are not likely to be relevant to the central issue of dishonesty. The fact that, for example, the defendant has made the same allegedly false representations to scores of victims does not tend to show that he has been dishonest. That would therefore lack the probative element that is so important for admissibility, and such evidence would fall by the wayside.

I now come to the other and secondary reason. The whole addition to the clause is unnecessary, but it is also problematic. The main problem with it is the one that I mentioned—namely, the fact that the evidence might be missing the probative element. However, I shall throw in the other reason, just in case I have not yet persuaded the hon. Gentleman. The addition to clause 12 is also unhelpful for reasons of timing. The judge would be required, at the preparatory hearing—that is, before the evidence had been led—to make a preliminary decision on the issue of cross-admissibility between the link counts and the sample count. That would be more difficult at that stage. The judge could only take a preliminary view that might change during the hearing of the trial evidence. However, once he had done so, it would be too late to use the two-stage procedure, because he would have fallen foul of the admissibility test. The Government therefore concluded that the addition to subsection (9) should be removed, and I ask the Committee to support the Government amendment.

Mr Dominic Grieve (Shadow Attorney General, Home, Constitutional & Legal Affairs; Beaconsfield, Conservative)

In the short time available, I can only tell the Solicitor-General that, unfortunately, I remain unconvinced by her arguments. I do not see the mischief in (9)(b) that she describes. It appears to me that, in the sort of case that I described earlier—that of multiple obtaining on a single card—cross-admissibility would immediately be present. That is precisely the sort of case that ought to be approached from such an angle. We do not want someone convicted of an offence to be tried without a jury for large numbers of other offences that are not really linked to it.

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Two o'clock.