Clause 12 - Application by prosecution for certain counts to be tried without a jury
Domestic Violence, Crime and Victims Bill [Lords]
2:30 pm
Ms Harriet Harman (Solicitor General, Law Officers' Department; Camberwell and Peckham, Labour)
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.