Schedule 1 - Modification of sections 12 to 15 for Northern Ireland
Domestic Violence, Crime and Victims Bill [Lords]
3:00 pm

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Mr Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe and Sale East, Labour)

I beg to move amendment No. 61, in schedule 1, page 23, line 20, leave out from beginning to the second 'that' in line 23 and insert

'the requirement under Article 49A of the Mental Health (Northern Ireland) Order 1986'.

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Mrs Marion Roe (Broxbourne, Conservative)

With this it will be convenient to discuss the following: Government amendments Nos. 62, 64, 67, 68, 58 and 59.

Government new clause 20—Procedure for determining fitness to plead: England and Wales.

Government new clause 21—Procedure for determining fitness to be tried: Northern Ireland.

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Mr Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe and Sale East, Labour)

The amendments would reintroduce procedural changes for determining fitness to plead under the Criminal Procedure (Insanity) Act 1964 that were removed from the Bill in the other place.

New clause 20 introduces the central change. The decision on whether the defendant is fit to be tried is to be taken

''by the court without a jury''.

That replaces the current requirement that a jury take that decision. The change was a recommendation of Lord Justice Auld. It is designed to streamline the current cumbersome process whereby separate juries

have to decide, first, whether the defendant is to be tried and, secondly, whether he did the act or made the admission as charged.

New clause 21 does the same in respect of Northern Ireland. Lord Justice Auld's remit did not include Northern Ireland. However, the proposed measure has attracted equally strong judicial support there and the Government wish to extend the provision to Northern Ireland as we think that it will be of equal value there as it will be in England and Wales.

The measure will improve the court process, but I wish to examine the issue from the point of view of the defendants. I believe that it will have some added protection for them in two ways. First, such defendants are often vulnerable, and if the judge were to make the determination, they would not have to go before the jury on two separate occasions. The judge would determine fitness to plead and a jury would then be convened to determine whether the defendants did the acts as charged. It is important to stress that we do not consider the provision to be an erosion of the right to trial by jury. A defendant cannot be sent directly to hospital if he is found unfit to plead. The result of a finding of unfitness to plead is that the trial of criminal liability stops, but the jury is still convened to engage in a fact-finding exercise. The defendant can be sent compulsorily to hospital only if he is found unfit to plead and a jury finds that he did the act with which he was charged.

3:15 pm
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Lady Lady Hermon (North Down, UUP)

I am sorry to interrupt the Minister in full flow. I am pleased that the provisions will be extended to Northern Ireland. He said that these defendants are vulnerable. I could not agree with him more. Perhaps I am wrong, but am I right in thinking that the provisions do not apply to youth courts? We are discussing vulnerable young people, but the provisions apply only to people over 18.

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Mr Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe and Sale East, Labour)

I am sure that advice on that will be with me soon. Perhaps I can clarify the position with the hon. Lady later in the debate. I am pleased that she welcomes the extension of the provisions to Northern Ireland.

As I said, the defendant can be sent compulsorily to hospital only if he is found unfit to plead and a jury finds that he did the act with which he was charged, so a person who is found unfit to plead by the judge will still have a jury to decide on the facts of his case. If the jury decides that he did not do the act with which he was charged, it must return a verdict of acquittal as it would if the case had proceeded to trial. In that case, the defendant walks out of the court completely free.

It is rare for medical evidence of fitness to be contested. In the first five years of the operation of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, evidence on fitness was challenged in only 10 per cent. of cases in which it was submitted. Frankly, it erodes the significance of the jury system for juries to be required to rubber-stamp what is often technical and professional evidence.

The second way in which the measure benefits the defendant is in relation to what happens if he disagrees with the decision that he is unfit to plead. If he disagrees, he is far better served by a judge making that decision, not a jury. The judge will have to give reasons for his or her decision, which will be open to challenge on appeal. Those reasons will be available to a defendant wishing to go to the Court of Appeal, but no reasons are given when a jury makes the decision. The proposal for the judge to make the decision puts the defendant in a more favourable position in the event of an appeal.

The remainder of the amendments in the group are consequential, applying mainly to Northern Ireland, to reflect the change of responsibility for determining fitness to plead. I realise that the matter caused some controversy in the other place, but I hope that the Committee will be reassured that the proposals are positive. First, they will not undermine the right to trial by jury; secondly, they simplify the court process; and thirdly, they strengthen the rights of defendants who may also be vulnerable. On those grounds, I hope that the measures will be included in the Bill.

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Mrs Cheryl Gillan (Shadow Minister, Home, Constitutional & Legal Affairs; Chesham and Amersham, Conservative)

I appreciate what the Under-Secretary was doing when reinstating the provisions removed with a reasonable majority in the other place by my noble Friends, together with Liberal Democrat Lords. I hope that, despite what he said, I will persuade him to think again. As he rightly said, the amendments effectively remove from the ambit of a jury the decision on whether a defendant is fit to stand trial, and award it solely to a judge.

The provisions will extend to Northern Ireland; the hon. Member for North Down (Lady Hermon) has already welcomed them. In debating other amendments, we will see how they apply to courts martial, too.

I have reflected on the debates in the other place, but I still think that despite the distinguished provenance of this proposal, to which the Under-Secretary referred—it is contained in Lord Justice Auld's report—there is a perception that the Government are removing more decision making from the lay members who contribute to the judicial process and concentrating it in the hands of legal professionals. In addition, the Bill effectively consigns the defendant to what could be incarceration in a mental institution without the benefit of their case being heard by a jury. That could also become an issue of civil liberties.

On reconsidering Lord Justice Auld's report, which is a lengthy and weighty tome that could prop open doors, I found that it devotes two paragraphs—barely a page—to requiring a judge alone to determine fitness to plead. Baroness Scotland of Asthal deployed only a minimal set of arguments to justify the change, hence my concern with the arguments in the other place. First, she argued that it was a waste of time and resources to convene two juries if a defendant's fitness to plead is being considered. That argument was not promoted by Lord Justice Auld in his two paragraphs.

If, at the end of the process, the defendant is deprived of his or her liberty, they will not be impressed that they did not have the opportunity for

their voice to be heard because the process cost too much or was too complicated. I appreciate that there is more flexibility in dealing with a defendant who is found to be unfit to plead with regard to an absolute discharge to hospital order, but he or she still loses access to an institution that commands public confidence during a process that could eventually take away his or her liberty. I also appreciate that the Under-Secretary said that there is an added protection for vulnerable people, but that may be afforded by a jury process in which the offender would have more confidence.

On resources, I am not sure that we will run out of people to serve on juries. There are plenty of people hanging around courts who could be put on juries. It is a question of opportunity costs. There are bodies in the court system that can be used in this process.

Baroness Scotland argued that a jury is unlikely to be as well qualified as a judge to interpret complex professional evidence. However, on closer examination that argument does stand up. I am not sure that the judge has any special qualities to bring to the process. The jury would be taking evidence from two medical practitioners, at least one of whom would be approved for the purpose of presenting evidence in such cases. It is, therefore, likely that the jury would be hearing evidence from professionals who are well placed to interpret the medical histories and conditions involved and to express their interpretation in a way that a jury can understand.

Judges and practitioners alike recognise that juries get it right. I doubt if the Under-Secretary can give me a long list of cases where the jury got it wrong over fitness to plead, or if he can produce a list of cases at all. If he can, I should be pleased to see it.

Lord Justice Auld acknowledged that the jury's role in unfitness to plead cases is often nothing short of a formality. The Under-Secretary alluded to that. There is usually no difference of opinion between the prosecution and the defence about the state of mind of the defendant. If that role is removed as an option, we will erode yet further what is still viewed, and what the hon. and learned Member for Redcar referred to, as a cornerstone of British justice that is there for the benefit of the British citizen. As it is, only about 1 per cent. of criminal cases in England and Wales culminate in trial by jury. If juries lose their role in cases of fitness to plead, we are certainly contributing to the demise of the jury system.

In the past five years, how many juries have sat to consider fitness to plead? Have there been any recorded complaints from defendants saying that the process was flawed? What estimates have been made of costs or savings to the public purse resulting from the difference between jury decisions and the decisions of judges sitting on their own? I do not believe that that was mentioned in the impact assessment, although perhaps it was there and I missed it.

By statute, under the Criminal Procedure (Insanity) Act 1964, the issue must be determined by a jury, either on arraignment or, if the court so decides, at any time

during the trial until the opening of the defence. Can the Minister reassure me that that would still be the case if the clauses came into operation?

I have tried to put the case for reconsidering the amendments. I hope that the Minister will not overturn the judgment made in another place, and that he will withdraw the amendments.

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Mr David Heath (Shadow Minister (Home Affairs), Home Affairs, Shadow Minister (Constitutional Affairs), Law Officers (Constitutional Affairs), Science, Non-Departmental & Cross-Departmental Responsibilities; Somerton and Frome, Liberal Democrat)

Previously, we debated an amendment tabled by my noble Friends in another place and supported by the Conservatives. In this instance, we are debating the replacement of something that was taken out as a response to an amendment by the Conservatives in another place and supported by my noble Friends. I do not think that we differ in our reasoning in this matter.

First, I welcome the application of the law to Northern Ireland. I do not welcome what is being done, but I believe in consistency; if one is determined to be wrong in England and Wales, then one may as well be wrong in Northern Ireland, too. That is a fundamental principle, and I am glad that the Government have finally accepted that.

However, the Government have got things wrong here. I am always slightly concerned when I hear Ministers quoting Lord Justice Auld's report or the Law Commission report, because the Government had no compunction about rejecting so much of what both reports said and then plucking a sentence or two and using the reports as a flag of convenience to justify what they are doing. I take with a pinch of salt the assertion that all that the Government are doing is what is arrived at by consensus, and what is a self-evident truth because it is in the Auld report.

I also have concerns—and the amendments are not the worst example of this by a long way—that one of the Home Office's priorities in recent years has been the chipping away at the role of the lay person in our judicial system. Whenever a lay person is involved, one can be sure that the Government will soon come up with a good reason why they should no longer be involved, and why the job should be left to the professionals, whether that be the judiciary or others. I do not accept that, because it is a cardinal principle of our law that the lay person is an integral part of the procedure. We are discussing a fairly marginal application of that principle, because, as has been said, by and large there will not be a contest about the medical advice proffered to a court. Very often, there is a view as to whether a person is unfit to plead. However, where there is a difference of medical expert opinion, the right tribunal for determining which opinion should be accepted must be the jury, not a judge.

A judge is not qualified to take a medical view. As the hon. Member for Chesham and Amersham (Mrs. Gillan) said, we may be dealing with incarceration of a person on a decision taken—if the Government have their way—by one judge. That judge will decide which of two equally valid, but differing, medical opinions he chooses to adopt. I prefer that decision to be in the hands of a jury. Our noble Friends in another place

were right to support the amendment that removed the provision. The Government are wrong to bring it back at this stage. The advantages are minimal, the potential disbenefit substantial, and I hope that the Government will think again. We will oppose the amendment.

3:30 pm
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Mr Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe and Sale East, Labour)

Let me begin by responding to the question asked earlier by the hon. Member for North Down about the applicability of the measures to young people. I confirm that they will apply only to the Crown court, so they will apply to young people under the age of 18 who are before the Crown court. However, such persons would be there only if the charge was serious—we do not expect children to appear frequently at the Crown court. I hope that I have given some clarification.

I say to the hon. Members for Chesham and Amersham and for Somerton and Frome that any Government proposal that contains a suggestion of transferring responsibilities and decision making from juries to judges will be challenged and scrutinised. I accept that. It is an important part of our judicial system and we need to protect it. I well understand why people raise such issues. However, I emphasise that we are discussing not trial by jury, but determination of fitness to plead. The case in relation to fitness to plead is a technical and professional judgment that is currently put to the jury. We are suggesting that it be put to the judge.

As I said, the evidence is challenged only in some 10 per cent. of cases. I do not argue that the jury does not have the ability to understand such arguments. I reject any suggestion that ordinary men and women who are members of a jury are not capable of understanding the issues. However, my fellow Home Office Ministers want to make sure that we treat juries as an important and significant resource. Our argument is that we would not be making best use of that precious resource and time by putting them through a technical process that is rarely challenged.

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Mrs Cheryl Gillan (Shadow Minister, Home, Constitutional & Legal Affairs; Chesham and Amersham, Conservative)

Let us consider a high-profile case that stirred much emotion among the general public. Does the Minister accept that it would be more difficult to explain the exclusion of the jury from that part of the proceedings? Public interest in high-profile cases will be more satisfied if fitness to plead was dealt with by a jury of the people, not by a judge sitting behind closed doors. The amendments will be perceived outside the Committee as an erosion. The Minister is removing an important part of the process in which reasonable men and women are seen to participate in something that might be of great public interest.

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Mr Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe and Sale East, Labour)

I understand the hon. Lady's concern, but we have an important responsibility to educate the public more about the procedures within courts. The jury does not decide off the top of its head whether someone is fit to plead; it makes a decision based on technical and professional evidence that is given to it—evidence that is challenged in only 10 per cent. of cases. Members of the jury do not just make it up; they listen to the technical and professional evidence. We argue that if that evidence were put

directly to the judge, jury time could be used better. That benefits the defendant because the judge would have to list reasons for his decision, which would be challengeable in the Court of Appeal.

On the numbers that the hon. Lady requested, the Department for Constitutional Affairs does not keep figures for juries that have been convened to determine was fitness to plead. We do have figures for cases in which a person was found unfit to plead, and I will write to the hon. Lady and other Committee members with those figures. As for her final question, fitness to plead will still be able to be considered at any time until the opening of the defence. We are not changing that procedure at all. We want to change the person or persons who make the decision, not the procedure.

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Ms Vera Baird (Redcar, Labour)

It is a complete waste of resources if both psychiatrists—sometimes, there are even three or four—agree on a opinion, but the law requires a jury to be sworn in to decide the uncontested issue. Would it not better to alter the law to allow the judge to rubber-stamp on those occasions but to keep juries for the 10 per cent. of cases that are contested?

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Mr Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe and Sale East, Labour)

As always, my hon. and learned Friend makes an interesting suggestion, although not one to which the Government feel attracted. We must make a balanced judgment between the evidence that professional people give to the court and the sensible use of the jury's time and the effective use of resources. In drawing that balance, we have decided that in all cases the decision should be transferred.

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Mrs Cheryl Gillan (Shadow Minister, Home, Constitutional & Legal Affairs; Chesham and Amersham, Conservative)

I have heard what the Minister has said, but, with other Opposition Members, I remain unsatisfied. For the record, I would like to give notice that when the Committee comes to decide on Government new clause 20, which will be the indicative vote, we will seek to divide the Committee.

Amendment agreed to.

Schedule 1, as amended, agreed to.