Clause 12 - Application by prosecution for certain counts to be tried without a jury
Domestic Violence, Crime and Victims Bill [Lords]
10:45 am
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—