Welcome, Dame Marion. At the end of this morning's sitting, the hon. Member for Beaconsfield (Mr. Grieve) was filled with a sense of gloom and despondency at the position that the Government had adopted. I share that feeling. I am disappointed that they want to reverse what was an eminently sensible amendment tabled by my noble Friends in another place.
I am sorry to say to the Solicitor-General that I fail to be swayed by her arguments in support of a reversal. Her first argument was not entirely apposite in that she was comparing the status quo ante with the proposals under the Bill. None of us is questioning that. We accept that there is a need to tidy up the arrangements and to introduce such legislation. That is not the question. Consideration must be given to whether the amendment made in another place inserting subsection (9)(b) adds to our understanding of the Government's intention. My argument is that it does.
I therefore reject the second argument of the Solicitor-General, which is that such a provision at this stage will introduce a further condition on the application of the trial of a sample count. It is not a condition. Conditions under the clause are well set out under subsections (3), (4) and (5) and the judge must be satisfied that they are fulfilled under subsection (2). Subsection (9) comprises a working definition of what is meant by a sample count. It is not entirely satisfactory to say that a sample count is whatever a judge may consider it is. I have great confidence in our judiciary and I do not have any doubt that, in the main, it would interpret such matters entirely as Parliament wishes. If we are to have a definition, it should be reasonably comprehensive. That is why subsection (9)(b) should be in the clause.
''that a sample count is a count where all the other counts of which it is a sample could amount to similar fact, for the purposes of a trial.——[Official Report, House of Lords, 2 February 2004; Vol. 657, c. GC267.]
The Minister gave an odd reply and said that, yes, that was the case, but it was only the case that day, and the next day it might be different. I am not sure that I followed that differentiation, because if the definition of similar fact changed—it has changed on occasion—the definition of sample count would move with that redefinition. It would be sensible to use such a proposition in the Bill.
As for cross-admissibility, what has been inserted seems perfectly sensible. It is interesting that there was no dissent from that on the Government's part in another place. They said that they understood that as the meaning of the clause. They asserted that that was their intention, but said that they did not want to introduce such a provision because it would bring in a new threshold—a new conditionality—to the clause. They also argued that there was a difficulty, because a judge would have to make that assessment early on, before allowing the process to continue, although he or she may not be in a position to do so.
I am not convinced that the argument that has been advanced today is better than that advanced when the matter was debated in the other place. Their Lordships were not convinced—they felt that this provision was sensible. Cross-admissibility determines that we are dealing with similar cases in similar circumstances in a way that narrows the scope of the provision, but not to the point of extinction; it still allows exactly what the Government want to happen, but no more than that, which is a sensible limitation.
To return to my point of departure, I am saddened by the Government's seeking to overturn the Lords amendment. We will oppose the Solicitor-General today, if she moves that course of action, and we will seek to reverse that omission during later stages of the Bill. We have an expectation of success in that reversal, if not in this House, then in another place.
If the Government are determined that this provision should not be included, they had better introduce a similar formulation to the same effect that is acceptable to them. That is the only way that they will have any chance of avoiding a sterile argument on something on which we basically agree.
We shall press forward with our amendment. In response to the hon. Members for Somerton and Frome (Mr. Heath) and for Beaconsfield I ask the Committee to consider the following points. Is the judicial discretion too wide, without the Government amendment, in making decisions about what is a sample case? We know that there has to be some judicial discretion, because we cannot foresee every consequence. We all agree that we cannot prescribe for the judges, who will have to consider matters case by case. The question is where the line is drawn. There is enough to make it clear to the judges what Parliament intend a sample count to be. We cannot anticipate all the different
circumstances, but that does not mean that we have left the judges to their own devices, saying, ''Use your judicial discretion''—far from it.
I should like to draw the Committee's attention to the three conditions set out in subsections (3), (4) and (5).
''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.''
They must get over that test first; it must be impracticable to have all the counts on the same indictment.
''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.''
It must be impracticable, a sample and
''in the interests of justice''.
The Solicitor-General has talked about the second condition, under which those counts to be tried
''can be regarded as a sample of counts''.
Subsection (9) defines what a sample count is. The only qualification that she wishes to include in that definition is paragraph (c):
''the judge considers that the sample count is a sample of the other counts.''
It is stated that a sample count is simply what a judge considers to be a sample count, without any qualification or any suggestion of what Parliament means by that. Is she satisfied with that?
Not entirely, I am afraid. There is a problem with subsection (9), and I will get on to that; however, we do not have the same view as the hon. Gentleman on how to solve it.
We all agree at the outset that there must be judicial discretion; things must be done on a case-by-case basis. However, there are questions about that. Have we got enough reassurance that the judiciary know what Parliament's intention is in laying down the three conditions? First, we have the three conditions. Secondly, there is the protection of article 6 of the European convention on human rights, which states that people must have a fair trial—whatever the judge does, it must be in the context of a fair trial. Thirdly, there is rule 9 of the indictment rules.
The judges are not free: they have the three conditions and article 6, and if they get through those, they have to get through rule 9 of the indictment rules, which states 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.''
Those are the chalk marks on the ground—not that the judiciary needs them, of course. The measure is clear and narrow enough.
The hon. Members for Beaconsfield and for Somerton and Frome also asked, ''You say that this is superfluous, so why not put it in anyway?'' Our second point has not been addressed by either of the hon. Gentlemen: it is not just superfluous, it is problematic.
There will be some cases that we would all agree are sample cases with the same defendant, and they would get through everything but they would fall out because there would not be cross-admissibility under the similar fact rule because the element of the probative requirement needed for that would not apply. There would be consequences that the hon. Member for Somerton and Frome does not intend, and that the Government and the Serious Fraud Office would not be happy to live with.
The hon. Gentleman asked whether we are entirely happy with subsection (9). We will have to look at that again. If what I have said is true—which I believe it is—and it is enough to have the three conditions and article 6 and rule 9, why do we need,
''the defendant in respect of each count is the same person''?
That point would not be reached with different defendants. Secondly, why do we need
''the judge considers that the sample count is a sample of the other counts''?
Also, why not add several more measures to that effect on to the end of paragraph (c)?
Hon. Members are worried about the fact that we are plucking out paragraph (b) and leaving paragraphs (a) and (c). I can see that it looks as though we are being inconsistent. We will have a further discussion about why we are doing that. The principal argument is that we have got enough there. At first glance, I cannot see why we need paragraphs (a) and (c). We might have to go for the three conditions, article 6 and rule 9. If that is more clear and straightforward and focuses everybody's mind in a helpful way, it might be satisfactory to hon. Members—or even, dare I say it, to those in another place.
I am delighted to hear what the Solicitor-General is saying, because it is precisely the point that was made by my noble Friend Lord Thomas of Gresford in another place. If we do not have a comprehensive definition, we do not need subsection (9) at all because it serves no useful purpose. If there is a proposal to delete it and replace it with some other assertion relating exactly to what the Solicitor-General has said, we may have a solution, but until we get to that point we must insist that the Bill's wording is more comprehensive and acceptable than what would be left in the Bill after the deletion.
I read the exchange between Lord Thomas and the Attorney-General in another place, but not the one between Lord Thomas and Baroness Scotland. Having said that we will look again at the clause to see whether we might take a different approach to subsection (9), I want to make it clear that we are not offering to change anything else. We are simply considering whether keeping subsection (9) is consistent with our argument for how things are supposed to be. Having a partial definition could be more problematic than standing back and examining the conditions.
In line with what the hon. Member for Somerton and Frome said, it probably would be better if subsection (9) were examined. I am sure that my hon. Friend the Member for Beaconsfield will be very happy to hear of the words of the Solicitor-General when he returns to the Committee, but in the meantime, to ensure that we put down a marker and reinforce our opinion, I urge my hon. Friends to vote against the Government amendment, although I am encouraged by what the Solicitor-General says.
Hon. Members must decide for themselves how they will vote. I have explained what we will be doing. We will have discussions with the hon. Member for Beaconsfield as well as with other hon. Members who want to discuss the matter before any further changes are made. We urge the Committee to support the Government amendment.
May I raise one concern before we are forced to vote? Given the rigour of the conditions in the clause and the Solicitor-General's references to article 6 and clause 9, what confidence has she that, given the rigorous tests already in the Bill, judges will make an application on a request by the prosecution?
I think that judges will grant well-founded applications made by the prosecution if they meet the tests. Judges want the full extent of offending to be able to be taken into account on sentencing, and they know that even the offence is only one offence among 100, it is the only offence that counts for the victims, and it matters to them. Judges all remember the pre-Kidd position, so they are used to sample counts. We are not presenting judges with a completely new structure; this is about strengthening and getting right a previous practice. I urge the Committee to accept the Government amendment.
Question put, That the amendment be made:—
The Committee divided: Ayes 11, Noes 4.
I have real reservations about the clause, and I ask whether it is necessary. Although I accept that it is not a deliberate one, it is an assault on jury trial, which is the centrepiece of our democracy.
Under the new proposal, the process starts with an appeal. The Lord Chief Justice says, ''A man has been charged on four specimen counts of 17 allegations, and he cannot be sentenced for all 17, even though they are identical to the four, because they have not been admitted, and they have not been proved. He can only be sentenced for the four on which he has been tried.'' That is going to be the rule. He said that from now on, we can sentence people only for what we have tried them on. He thought that that would not be unduly burdensome or unmanageable.
The Law Commission, however, thinks that there is a problem that involves hundreds of cases. The Government have accepted that position and proposed this two-stage trial procedure. The first will take place before a judge and jury in the normal way and will try the sample, or specimen, count. In the event of guilty verdict, in the second stage, the defendant will be tried by a judge alone on any charge for which the first one was a sample. It is thought that many will plead guilty at that stage.
Is that really necessary? There is a problem. In the case of Kidd, Lord Chief Justice Bingham determined upon that one cannot sentence on a sample basis, and one can sample only on what people have admitted or had proven against them. For many cases, it is said that, because there are so many repeat offences of a similar type, they are far too big for a jury to try. One simply cannot sentence someone for the extent of their criminality; one can perhaps pick a few cases out, and if the person has done 10 times as many crimes as that, they will not be sentenced properly. The real problem is that we are not sentencing people for their complete criminality.
I think Lord Chief Justice Bingham thought that the provision would not be ''unduly cumbersome'' because he thought that the problem was likely to be confined mostly to theft and fraud charges, which are most likely to remain the main area. The Law Commission accepts that, and said, at paragraph 4.18 of its report that
''theft and fraud are likely to remain the main area in which this presents serious problems''
There are not likely to be a multitude of charges of sexual offences, because people's memories are too finite.
The other possibility, apart from theft and fraud, to which this new rule might be relevant would be the downloading of images of child pornography, which can involve a large number of charges. In the Law Commission's view, and in mine, the problem seems likely to be confined to those areas. Even in terms of downloading images of pornography the Sentencing Advisory Panel says that the numbers are not the primary basis for the sentencing—it is the course of conduct and its extent—but that they are relevant.
What is the problem with trying all the cases? Two references were made in the Law Commission's report: one was to a case in which there would have been 94 counts on the indictment—that is, charges on the charge sheet—and another was to a case in which there would have been 200. The SFO says that that is far too many; no jury could try that many charges fairly, and only a judge can do so. I am not sure about that.
My first reservation about the need for the measure is that in the Law Commission's worst case of 200 charges, there would, as I tried to say clumsily this morning, rarely be any purpose in trying all counts. We should stick to addressing theft and fraud, which are likely to be the most common matters.
I am not pretending for one minute that the sentences that I am about to use as examples of how things work are based on reality. If one commits a fraud of £10,000, one might be locked up for a year; if one does 10 frauds of £10,000, one does not get locked up for 10 years, but for some figure whose rate of increase diminishes as one goes further up the stage of repetition. The sentence in a fraud case involving £100,000 would probably not be significantly different from that in a case involving £700,000 or £800,000. Our anxiety must simply be to do enough; not all counts have to be tried.
Why is that not practical? Sentences do not increase as the numbers increase. We are talking mostly about theft and fraud. In this country, we do not sentence people guilty of such offences to very long sentences of life, 15 years, 10 years or anything like that. Rightly, we save such sentences for manslaughter, rape, violence and armed robbery. There is a finite limit on what somebody who has committed fraud or theft is likely to get, so we do not need to try them on all counts. Trying the last 50 of 200 counts would probably not change the sentence at all. We need to be able just to try enough charges.
What is the difficulty with that? We could sever an indictment: that is, cut a trial into bits. We could swear in successive juries to try them successively. That may sound long winded, and it may be, but what is the problem? I have been in cases of a different kind that were just as long winded. For instance, in the Orgreave trial during the miners' strike, more than 200 men were tried for riot, affray and other offences committed on a field near Sheffield. The first trial was going to involve 15 men to make it manageable. Some 200 people were involved; how many trials would taking 15 at a time mean? A lot.
The law and the courts still contemplate doing exactly that, and they have done so with every prison riot. There are simply successive trials, tried by juries. There may be a fear of inconsistent verdicts between jury A and jury B, but there could be inconsistent verdicts between judge A and judge B. The same judge will not necessarily try all cases. There might be inconsistent verdicts between the jury who try a sample and a judge who tries the cases that follow. I see no difficulty, once one realises that the scale of offences covered is likely to involve theft and fraud. The
important thing is that trying more and more offences involves the law of diminishing returns, unlike simply splitting them up and trying them.
I would have thought that part of the problem of bulk in trials had been solved successfully by section 101 of the Criminal Justice Act 2003, which allows the admission of evidence of the defendant's bad character—that is to say, evidence of a person's conviction—during criminal proceedings. For instance, in a first trial on 15 counts of theft and fraud, a jury may convict a man on 15, 14, 13 or however many counts, and therefore show that he has behaved dishonestly. The test would be whether we could put in that conviction, showing his bad character. The answer would come under section 101(1)(d) of the 2003 Act if
''it is relevant to an important matter in issue between the defendant and the prosecution''.
The case would be about dishonesty. The man in question would say that he had not been dishonest in relation to the transactions being examined in trial number 2; he would say that they were accidents, mistakes or flaws in his inadequate bookkeeping. Calling evidence that he had been convicted of dishonesty just before on related counts would be directly relevant to an important matter in issue between the defence and prosecution. With that power, brought in by the Government and directly applicable, there would be a great many pleas after the first trial as well. If there are pleas, the issues will be relatively easy for a jury to resolve.
What is the need for this provision, and what are the dangers? During the past few years, there has been a series of attempts to limit jury trial. Although I accept that this is not one such attempt, the provision is essentially about theft and serious fraud, which was one of the moves thwarted last time. However, it is now clear that the Government say that the clause is not an assault on jury trial, and that if anything goes wrong with the rest of jury trial because of it, that will be a result of the law of unintended consequences.
The hon. and learned Lady might remember that we were left in a slightly unsatisfactory position at the end of proceedings on the Criminal Justice Act 2003. The Opposition made a stalwart defence of jury trial for complex cases and certainly won, but only in the sense that the Government's proposals were not implemented; however, they remain in the Act. We were assured that we would have further discussions with the Home Secretary and others on what the next steps would be, but those have not yet materialised. Is she surprised that there has been no discussion of those matters?
I do not know about that. I would have thought that there would be need for discussion only if there were any prospect of implementing the measures. Perhaps that is simply not yet being considered. I do not know why, or whether it has anything to do with the provisions in the Bill. However, I do not want to go down that road because I have been assured that the proposals are not being brought in.
I now turn to what I accept will be the unintended consequences of the measures. If there was a two-tier system of trial, people would soon be singing the praises of trial by judge alone: there is no doubt that it is cheaper and quicker than full-blown jury trial. I ask hon. Members to think about that. If I am in court doing an advocacy job in front of 12 people who cannot speak to me at all, I have to go at the presumed rate of the slowest member of the jury. They do not know the first thing about the law, so I have to explain everything that I am doing in great detail. A judge, on the other hand, could say, ''Yes, I've got that point, Mrs. Baird; do get on with it,'' and I would know that the judge knew the law. The process would therefore be much quicker and cheaper than jury trial.
People might say, ''This is odd. Why do we need a jury to take three weeks to try 10 of the counts when the judge has taken only a fortnight to try to the other 190? Obviously, we should scrap juries completely and get on with trials by judge alone. We are wasting a lot of public money.'' The move is not necessary, for the reasons that I gave. My fear is that it will, unintentionally, be the beginning of the end for jury trial.
It might assist the Committee if during this stand part debate I deal with clauses 13 to 16, which relate to the procedures underlying clause 12. If you feel that that is not helpful, Dame Marion, you could cut in and say that you had heard quite enough. In that way, we might not need stand part debates on the other clauses. Looking into the procedure and the substance of the clauses might be helpful, so I shall address matters in that way.
My hon. and learned Friend the Member for Redcar (Vera Baird) has made her case forcefully. I am sure that everyone on the Committee, including you, Dame Marion, thinks that she would make a jolly good Solicitor-General. However, on this occasion I disagree with her. She says that the measure is an assault on jury trial, but she agrees that no cases will be tried under the second stage of the two-part procedure—that is, by a judge on his own—that would have been tried by a jury in the pre-Kidd days. To that extent, there is no reduction in jury trial; therefore the measure is not an assault on jury trial. It simply regulates the situation that pertained before the Kidd decision in the Court of Appeal.
My hon. and learned Friend's second point was whether one could not simply have ''enough'' counts on the indictment. I have a problem with that; one should have the full extent of the offending on the indictment. I am a bit uncomfortable about slicing through the indictment and leaving the other offending to one side. I know what she means when she says that sentencing is not cumulative—the sentence does not go up in exact proportion to the sum involved. Otherwise, people would be convicted and sentenced to hundreds of years. I take the point that there is no mathematical accumulator, but it is important and right that the court has before it the full extent of the offending and that is on the indictment.
My hon. and learned Friend's argument about doing enough for sentencing does not take account of the fact that we need to know the full extent of the criminality on the indictment; nor does it take into account the question of the multiple victims in the cases. Each of the counts will represent a separate victim. In continuous offences that are tried by sample, there is only one victim, but a whole load of victims would just be pushed out of the picture by what my hon. and learned Friend suggests.
My hon. and learned Friend said that people will soon say, ''Let's not have juries any more. Let's just have trial by judge alone.'' She knows as well as I do that people say that all the time; it is an ongoing argument. That does not help us decide whether this is the right procedure. What somebody might argue in future is not a good argument for not supporting this clause.
As hon. Members have said, the provisions have their provenance in a Law Commission report that considered the problems that arise in cases in which the offending conduct of the defendant is repeated so many times that there are too many individual offences to be accommodated in a single jury trial. The report and its recommendations address a specific situation that is widely acknowledged to be highly unsatisfactory. In the past, such cases could be dealt with by means of a specimen count to ensure that the trial will be manageable for a jury. Upon conviction, the judge would sentence on the basis that the counts upon which the defendant had been found guilty were samples of the much larger number of offences committed. The defendant would thus be sentenced to a term commensurate with the totality of the offending. The 1998 Court of Appeal decision in Kidd and others precluded such an approach: the Court ruled that the practice of sentencing on the basis of specimen counts was inconsistent with the principle that a defendant should be sentenced for offences that have been proved by verdict, or to which he has pleaded guilty, or which he has agreed to have taken into consideration. The problem with specimen counts, therefore, was that the defendant was sentenced on the basis of offences to which he had not pleaded guilty or which had not been proved guilty by verdict.
That decision, although correct in principle, has given rise to a serious problem in certain cases of multiple offending. In those cases, the consequences of the impracticality of prosecuting the full extent of offending and the prohibition on specimen counts are that the vast majority of such offending is not prosecuted. The offender thus escapes appropriate sanction. That is a serious failing in the system. Defendants should not escape just punishment because court procedures cannot accommodate the volume of their offending. The court needs to have before it the full extent of the offending.
The Law Commission's recommendation for a two-stage trial procedure in the Crown Court seeks to address those problems. The scheme is aimed at allegations of multiple offending that do not fall into the category of a continuous offence—generally
because they are committed against a series of victims rather than only one and involve repeated similar offending. In terms of type of offence, we expect the scheme to operate chiefly in the areas of theft and fraud, in which the total sum is relevant to the sentence. At present, a person whose offending involves the commission of hundreds of offences, each involving a small amount, perhaps, but the overall gain of which might be considerable, cannot be sentenced to a term that reflects the true extent of their offending. That cannot be right. Confiscation of proceeds questions must also be taken into account.
The outline of the procedure is dealt with in subsequent clauses. The key elements of the procedure are as follows. The prosecution makes an application for the two-stage trial procedure to be invoked. The application is considered by the trial judge at a preparatory hearing. In the event of a successful application, an indictment is drawn up containing charges chosen to show samples of the offending. A series of linked offences, reflecting the full extent of the alleged offending, is placed in a schedule attached to the indictment.
The first stage of the trial is a conventional jury trial on the sample counts contained in the indictment. The second stage takes place only in the event of a guilty verdict on one or more of the counts tried before the jury. The judge alone decides on the guilt or innocence of the defendant in respect only of offences linked to those upon which the jury has convicted. The judge is not bound by the conviction of the jury at stage one but is free to come to his or her own view of the evidence. In the event that the jury has acquitted on a sample count, there is a presumption in favour of a directed acquittal on the linked counts. The defence has a right of appeal against an order for a two-stage trial, and the judge is required to give a reasoned verdict at the end of the second stage in the event of a conviction.
The two-stage procedure will have a number of benefits. It will preserve jury trial in respect of the core examples of the defendant's criminality. It will ensure that the jury trial is manageable and comprehensible. It will be likely to encourage guilty defendants, either on an initial arraignment or after conviction of a number of sample offences, to plead guilty to or to admit any linked offences of which they are also guilty. It will give the defendant a fair hearing, with the opportunity to present a defence in relation to any or all of the alleged offences. It will ensure that defendants will not be able to take advantage of the practical limits of trial by jury so as to go unpunished for a significant part of their offending. It will allow the court to sentence the defendant for the full extent of his or her offending while safeguarding a fundamental requirement of justice: that the defendant is sentenced only for offences that have been proved to a court after a trial, or to which they have admitted.
The two-stage procedure will also allow full expression of each of two fundamental requirements of justice: first, that a defendant should be sentenced
only for offences that are admitted or of which the defendant has been convicted after having had the opportunity to challenge the evidence; secondly, that defendants should be tried and sentenced for the full extent of their criminality. I would add a third requirement: that justice be done in respect of each person who is a victim of that criminality. The defendant will be given a fair hearing, with an opportunity to present a defence in relation to any or all of the alleged offences. The procedures thus safeguard the interests of the defendant by ensuring that the sentence will reflect that conduct which the prosecution has proved to the jury and, thereafter, to the judge.
I understand colleagues sense that when things are separated out like this, in the manner that the Law Commission has proposed, it looks uncomfortably as though the second counts will somehow be second-class justice, but that is not what will happen. That is not what happened pre-Kidd. Our proposal is an improvement on the pre-Kidd procedure. There will be sufficient safeguards, transparency in practice, rights of appeal and judicial discretion. Clauses 12 to 16 should stand part of the Bill.
Question put and agreed to.
Clause 12, as amended, ordered to stand part of the Bill.
Clauses 13 to 16 ordered to stand part of the Bill.