Clause 17 — Application by prosecution for certain counts to be tried without a jury

New Clause 10 — Victims of persons subject to hospital order with restriction order: representations – in the House of Commons at 4:47 pm on 27th October 2004.

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Photo of David Heath David Heath Shadow Spokesperson (Home Affairs) 4:47 pm, 27th October 2004

I beg to move amendment No. 8, in page 11, line 32 leave out subsection (9).

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

With this it will be convenient to discuss the following: Government amendment No. 33.

Amendment No. 9, in page 11, line 34 leave out 'and' and insert—

'(b) evidence in respect of each count is admissible at the trial of the sample count, and'.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

We now move on to trial by jury of sample counts. The debate in Committee was slightly confused—I rarely accuse the Solicitor-General of being confused, but some of her responses to my points were confused—and the confusion lay in the difference between the conditions in clause 17. A court would apply those conditions to determine whether it is appropriate to deal with sample counts, and some of us feel that the definition in subsection (9) is incomplete.

In Committee, the Solicitor-General was at pains to tell me that it is important that all the conditions are fulfilled, and I agree with that point. Subsection (2) identifies that the conditions must be fulfilled. Subsection (3) states:

"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."

Subsection (4) states:

"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."

Subsection (5) states:

"The third condition is that it is in the interests of justice for an order under subsection (2) to be made."

Those conditions are perfectly proper.

Subsection (9) contains an almost redundant definition of what might be a sample count under clause 17. If we treat it as a definition, the missing ingredient is a provision on cross-admissibility. Such a provision was inserted in another place and removed by the Government in Committee, and I seek to reinsert it through amendment No. 9, which I intend to press to a Division at this debate's conclusion if the Government do not accept it.

Amendment No. 8 would delete subsection (9). To some extent, it is a facetious amendment because I do not necessarily want to do without definition. However, it is better to have no definition than incomplete definition. If we are interested in making proper law, the definition should be complete. In Committee, the Solicitor-General said that a judge would understand what it meant. Perhaps that is the case, but why do not we write it in bold in the Bill so that everybody understands it and there is no room for misunderstanding? If we are to have a definition, let it be complete; if it is not complete, let us do without it.

A more satisfactory answer was provided in another place through an amendment supported by Liberal Democrat and Conservative peers. I note that Mr. Grieve and his colleagues have been happy to add their names to amendment No. 9. It simply states what we expect of cross-admissibility. It would insert a new paragraph (b), which states that

"evidence in respect of each count is admissible at the trial of the sample count".

The point is important and cannot simply be ignored. It would be helpful if the Solicitor-General accepted that even at this late stage. If she does not, I suspect that we will debate the matter again in the future. I do not especially want to press for the removal of subsection (9), although I shall consider that option in the light of the Government's response. It would be far better to have a complete definition.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

Mr. Heath knows from our debates in Committee that the official Opposition's view was that, although the Government had the justification for introducing clause 17 of trying to simplify the trial process in cases of a multitude of identical counts by enabling some to be tried as sample counts and the others either to be taken into consideration, or, if the defendant refused, to be tried without a jury, we were worried when we read how far the definition of "sample" could be extended. The Government's introduction of subsection (9) highlights the fact that, although in my experience as a practitioner, the use of the term "sample count" is common at the Bar, it has not been subject to legal definition. Subsection (9) tries to provide that definition.

The definition begins with the bizarre statement that

"the defendant in respect of each count is the same person".

I should hope so, otherwise we would be in a strange world. It continues by saying that a count is to be regarded as a sample if

"the judge considers that the sample count is a sample of the other counts."

I have great faith in our judiciary but not to the extent that Parliament should avoid providing it with guidance if we have a clear view of what constitutes a sample count.

Let me give an example of a sample count. A defendant steals a credit card and uses it 50 times. Each time, he obtains property by deception. Instead of charging him with 50 offences—that would lead to a long, complicated and rather ponderous trial— he would be charged with one count for the first time he used the card to obtain property, another count for the last time and perhaps two or three other counts to cover the period when the offences were taking place. I am content with the notion that, if, at the end of the trial on those counts, the defendant did not accept having the others taken into consideration, it would be proper to say that there had been a trial of the sample and the judge could deal with the others. I fear, however, that under subsection (9) as it is currently drafted, it would be possible for the scope of a sample count to be considerably widened.

This matter was considered in great detail in the other place, and an amendment to the Bill was passed— I think that it was a very good one—to ensure that in any case involving sample counts, the defining element linking them all together would be that

"evidence in respect of each count is admissible at the trial of the sample count".

That principle is well known in our legal system, and it seems completely to address the vagueness that might otherwise result from subsection (9).

I join the hon. Member for Somerton and Frome in saying—and I am sorry to have to say it—that no adequate explanation was provided in Committee as to why amendment No. 9, on which I hope that we shall be able to vote, would somehow wreck this part of the Bill. I was mystified by the fact that the only argument being put forward was that we did not need proposed new paragraph (b), as shown in amendment No. 9, because a judge would be able to deal with the matter quite satisfactorily.However, the Solicitor-General cannot have it both ways.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

Might I suggest a reason why this proposal might create a difficulty? If the evidence is mutually admissible, the fact of a conviction in the trial before a jury would be admissible in evidence in the trial without a jury. As we all know, once someone has a previous conviction, their chances of getting an acquittal are greatly diminished.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

My right hon. and learned Friend makes a good point, although it is also right to point out that from December, the operation of the new rules under the Criminal Justice Act 2003 will completely change the position in respect of the admissibility of previous convictions. It is certainly envisaged that, in this scheme of things, the same judge who tried the previous matter with a jury would subsequently try the other counts—if they were not accepted—without a jury.

At this stage of the Bill's passage, we can only do our best to rectify its worst mischiefs. In amendment No. 9, we are seeking to ensure that a sample count involves what the majority of legal practitioners would understand a sample count to be. For that reason, we support the intention to put the amendment to the vote. In the meantime, I shall be interested to hear from the Minister an explanation as to why it would do so much damage to the main thrust of clause 17.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

Before we hear the answers from the Minister or the Solicitor-General, might I rise briefly to make my points? Personally, I would prefer the removal of the definition for the perverse reason that it would make it less likely that a judge would exercise the powers provided by clause 17, because I am deeply disturbed by those powers. I do not see the justification for them. I am keeping firmly to order in this matter, Mr. Deputy Speaker. To start off with, if a judge had this power—even if it were modified by subsection (9) as amended—there would be a tendency for them to overload the indictment. If lots of counts can be put into the indictment, they will be, and that is bad news.

Secondly, and quite differently, the courts already have the power to deal with the matter on the sentence. The prosecution will simply say to the trial judge, "My Lord, you know that this is a sample count in respect of which a conviction has taken place." In all probability, the trial judge will have the power to impose an appropriate sentence. I therefore find it difficult to see why we should have the powers set out in clause 17 at all. If we removed the definition in subsection (9), as proposed in the amendment, the trial judge would be less likely to invoke the clause 17 powers.My first argument, therefore, is to ask whether the clause 17 powers are desirable. If the answer to that is no, I shall be in favour of removing the definition, because that would be one way of making it less likely that a judge would use those powers.

Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee 5:15 pm, 27th October 2004

I will be asking the House to support Government amendment No. 33 and to resist amendments Nos. 8 and 9. Perhaps it will assist the House if I briefly explain what these clauses are designed to do. Their purpose is to establish a two-stage procedure to provide in statute for the replacement of the sample count procedure that was formerly used in cases where an alleged offence has been repeated many times against a series of victims. Because there is a limit to the number of counts that can be reasonably included in a single indictment, the practice used to be for a defendant to be indicted for a number of sample counts, and then, if he was convicted on the sample count, to be sentenced on the basis of all the offences. However, this practice was disapproved by the Court of Appeal in a case called Kidd in 1998, on the grounds that it involved sentencing an offender for offences to which he had not pleaded guilty, of which he had not been convicted, and which he had not agreed to be taken into consideration. So we had a long-standing sample count procedure, with which everyone will be familiar, and that was disallowed in 1998 in the Kidd case.

The court's decision in Kidd was no doubt correct, but the result is that in cases of multiple offences, it is no longer possible for the court to take account of more than a fraction of the defendant's offending when sentencing him, even if he is convicted of all the counts on the indictment. For example, where the offending consists of a scam in which hundreds of victims are cheated of small sums of money, the proceeds of the offences represented by the counts on the indictment could only amount to a tiny fraction of the total sum that was defrauded.

The result is a threefold problem. First, the sentence will not necessarily be able to reflect the totality of the offending. Secondly—this is important as well—most victims will be denied the satisfaction of knowing that the defendant has been dealt with for the offence committed against them. Thirdly, where there has been no conviction, the court has no power to award compensation, so that victims may miss out on compensation where their case was one of the offences that could not be accommodated on the indictment. So yes, there is the sentencing point, but there are two further points as well.

Even where the individual offences are more serious, such as indecent assaults, and the court is able to impose an adequate sentence simply on the basis of the limited counts on the indictment, it will still appear to the victim that the accused has been dealt with for only part of his offending. So convicting multiple offenders of all their offences is important. The objective of the present clauses is to provide the courts with a replacement for the sample count arrangements that would have been used before Kidd ruled them out.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

Will the Solicitor-General address in due course—not necessarily immediately—the point raised by my hon. Friend Mr. Grieve about the mode of trial? Is he right to say that it is intended that the trial judge in the first trial, who has heard all the evidence and knows the facts of the conviction, should then be the presiding judge in the second trial, held without a jury, because in that case you will have a single judge, without a jury, who already knows of all the facts of the previous convictions?

Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee

Well, if that is the case—and it is most likely to be the case—that makes it more like the procedure that used to obtain before Kidd, with which Mr. Grieve is no doubt wholly familiar and to which he no doubt had no objections. The House needs to understand and accept that this is a tightening of safeguards compared with the pre-Kidd situation, not a loosening of them. The objective of the current clauses is to provide the courts with a replacement for the sample count arrangements that they would have used before Kidd ruled them out. We do not wish to go further than that, nor do we believe that we have done so.

These clauses introduce a new procedure and provide safeguards. I want to take the House through those 10 safeguards.

First, when the new procedure is used, only when the defendant has been convicted by the jury of the sample counts can the judge proceed to consider whether the defendant is guilty of offences not before the jury. Therefore, if the defendant is acquitted: end of story. There is no opportunity in the procedure for the jury to acquit and for the judge then to come along and convict on the sample counts. That is an important first safeguard and the effect of clause 19(1).

Secondly, the judge must be satisfied that the counts that the jury would try can be regarded as a sample of the counts that would be tried by him in the second stage, which is the effect of clause 17(4). I guess that that is the nearest that we come to a definition, which is that the judge must be satisfied that those are indeed sample counts.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

Government amendment No. 33 appears to remove the requirement in subsection (9) that the judge should consider that the sample count is a sample of the other counts. Therefore, I hope that when the Solicitor-General comes to deal with that, she will explain where the requirement lies that the judge should consider it as a sample.

Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee

The requirement lies in clause 17(4), which I have just dealt with.

The third safeguard is that the judge must be satisfied that it would be impractical for a jury to try all the counts. That is in clause 17(3). The first impulse must therefore be jury trial. But that is still not enough—there is a further safeguard, which is the fourth one.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs)

I appreciate that there are six more safeguards to go, but I am going to take the Solicitor-General back one. I want to be absolutely clear on the point raised by Mr. Grieve about Government amendment No. 33 removing the condition in clause 17(9)(b) that the judge considers that the sample count is a sample of the other counts. What is the subtle distinction that I have missed between the judge considering that each count or group of counts

"can be regarded as a sample of counts", under clause 17(4), and

"is a sample of the other counts", under clause 17(9)(b), which is now to be removed?

Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee

The point is that clause 17(9)(b) was simply repetitive and added nothing to clause 17(4), which is the second condition, as described in the Bill, which says that it must be regarded as a sample of counts.

The fourth safeguard is that the judge, having decided that the first impulse—jury trial of all the issues—would be impractical for some issues, would have to be satisfied that there are not other steps that could be taken to facilitate a trial by jury. That is the effect of clause 17(6).

The fifth safeguard is that the judge must be satisfied that it is in the interests of justice for the two-stage procedure to be used. That is under clause 17(5).

The sixth safeguard is that the defendant tried by the judge on the sample and remaining counts must be the same person. That is the effect both of clause 17(9) and of our proposed amendment to it. We ask the House to reject amendment No. 8 and to support Government amendment No. 33.

Photo of Mr Jonathan Sayeed Mr Jonathan Sayeed Conservative, Mid Bedfordshire

If, in the view of the defence, the judge has misdirected himself, what steps can the defence take to suggest that it should be a jury rather than a non-jury trial?

Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee

That relates to the seventh and eighth safeguards if I remember the correct order. I shall come to them and the process by which challenges can be made.

I was dealing with the sixth safeguard, which is that it must be the same defendant on the sample of the remaining counts to be tried by the judge. That is the effect of clause 17(9) and our proposed amendment to it. Our amendment removes the circular definition that was criticised in Committee and simply provides that a sample count is not to be regarded as a sample of other counts unless the defendant in respect of each count is the same person.

Seventhly, there is also the safeguard laid out in rule 9 of the indictment rules, which will apply. All the offences must be founded on the same facts or form part of a series of offences of the same or similar character.

The next safeguard addresses the point raised by Mr. Sayeed. The defence will have the opportunity to make representations against the use of the procedure if they want to challenge it. That is provided for in clause 18(4).

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I do not draw reassurance from the suggestion that rule 9 of the indictment rules is sufficient in such a case. Is it not a fact that if that were the only safeguard, it would be possible to have one of a series of counts of completely separate incidents of burglary that took place within a short time going to jury trial with the others determined afterwards? That is not what I originally understood the Home Secretary to say when he put forward the proposal for introducing the mechanism of clause 17 when he made his announcement at the end of proceedings on the Criminal Justice Act 2003.

Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee

I agree with the hon. Gentleman. It would not be satisfactory if the only protection were rule 9 of the indictment rules. It is not the only protection; it is an additional protection. There are nine others. I ask him and the House to consider them altogether.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am sorry to intervene again, but I come back to the definition of "a sample count". I would be interested to hear whether the Solicitor-General can give the House the definition as she understands it. Obviously it may just have its ordinary dictionary definition but if that is the only definition that we have, insufficient safeguards are available to ensure that it is not simply used to avoid jury trial on quite separate offences.

Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee

I think that there are sufficient safeguards and the Law Commission is satisfied that, with these 10 conditions and safeguards, the situation will be fair. The hon. Gentleman keeps rising to his feet and saying, "But this is not fair", but I have not even got to the end of my list. We are using both belt and braces, with many safeguards in place. I imagine that most members of the judiciary think that they are entirely unnecessary on account of the fact that the judiciary would probably argue that it knows what is and is not a sample. The defence can challenge the decision and appeal if necessary. However, we are not leaving it at that. We are putting in place all the safeguards.

As I say, the defence will have the opportunity to make representations and if it does not accept the judge's ruling, it will be able to appeal against his decision to use the procedure. That is the effect of clause 18(5). Not only will the defence have the opportunity to make representations, but it will be able to appeal and article 6 of the European convention, which is the tenth safeguard, will apply to guarantee a fair trial.

On the basis of the safeguards, the Law Commission is happy. I ask the House to reject the amendments Nos. 8 and 9, but to support Government amendment No. 33.

Photo of David Heath David Heath Shadow Spokesperson (Home Affairs) 5:30 pm, 27th October 2004

The Solicitor-General's remarks have underlined the tortuousness of the process. She has made it more difficult, not easier, to understand what is intended. The precautions that she has outlined—the 10 steps—do not make sense. We feel that we must press the amendment to a vote.

Question put, That the amendment be made:—

The House divided: Ayes 180, Noes 296.

Division number 289 New Clause 10 — Victims of persons subject to hospital order with restriction order: representations — Clause 17 — Application by prosecution for certain counts to be tried without a jury

Aye: 180 MPs

No: 296 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Question accordingly negatived.

Amendment made: No. 33, in page 11, line 32 , leave out from 'count' to end of line 36 and insert

'may not be regarded as a sample of other counts unless the defendant in respect of each count is the same person'.— [Mr. Heppell.]