Clause 12 - Application by prosecution for certain counts to be tried without a jury
Domestic Violence, Crime and Victims Bill [Lords]
2:30 pm
Mr David Heath (Shadow Minister (Home Affairs), Home Affairs; Somerton and Frome, Liberal Democrat)
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.
When the matter was debated in another place, there was an interesting exchange between my noble Friend Lord Thomas of Gresford and Baroness Scotland of Asthal. My noble Friend asked her to confirm
''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.