We now come to a part of the Bill that has caused me considerable concern. The Government propose to reform the rules under which unfitness to plead and insanity are determined. At present, the determination of whether a person is fit to plead is made by a jury. If there is a question about fitness to plead, a jury is empanelled for the specific purpose of deciding the matter. In my professional experience as a barrister, I can remember no occasion on which that procedure took a long time, or on which the jury encountered difficulty in reaching a correct decision. However, the Government propose to remove that power from a judge and jury, and to leave the decision to a judge alone.
Does my hon. Friend agree that that is so only in part? Clause 22(5) preserves the jury's right to determine the matter when it arises post-arraignment. In other words, the Government accept that the jury is competent to perform the task.
Does my hon. Friend agree, therefore, that it is incumbent on the Government to present evidence on the general point, and to apply the method of difference to explain why different regimes should apply pre and post- arraignment?
My hon. Friend is right. If no one has questioned the fact that the jury should continue to play such an important role post-arraignment, why should that role be removed from the jury pre-arraignment?
I am afraid that the Government have a long history of disliking jury trials. The Government showed their hand very clearly in previous statutory attempts to curb jury trial. They believe that jury trial is an inconvenience that must be tolerated at best because of some unfortunate public adherence to its principles. There really is nothing more to this. If the Home Secretary had had his way in the Criminal Justice Act 2003, he would have removed jury trial for a raft of substantive offences, and the Government have made earlier attempts to do the same thing.
I imagine that my hon. Friend would also want to say that the same kind of issue arises in quite a lot of cases—for example, with regard to diminished responsibility, to the defence of insanity and to the question of special reasons when a defendant chooses not to give evidence.
I wonder whether my hon. Friend thinks that possibly money might be behind this plan? If the Government put the measure in place pre-arraignment, they would save the cost of empanelling the jury. I wonder whether that could be a factor.
My hon. Friend may be right, but we have not heard sufficient explanation from the Government about their rationale. Indeed, I hope that we will have the opportunity this evening—admittedly, at a late stage in the passage of a Bill—to hear a full explanation of why the Government think that this is the correct action to take.
This issue arises in only a small percentage of cases, but in about 90 per cent. of the ones in which it does there is no dispute—both sides experts agree that the person is unfit to plead—yet the current law still requires a jury to be sworn in, which is an utter waste of money.
The hon. and learned Lady, as she often does, makes an important point. I can only speak to the amendment, but I am aware that she has an alternative way to meet the problem: where agreement is reached on unfitness to plead, there is no need to empanel a jury, but where a dispute arises, which happens in very few cases, a jury should be empanelled. That goes a very long way to meeting my anxieties.
My basic anxiety is that this is not an issue of administrative convenience. Clause 22 can cut two ways. First, some people may seek to masquerade behind unfitness to plead to avoid the consequences of a conviction against them because they think that that might be to their advantage. Secondly—I do not think that this is too far fetched, but I hope that it never happens—there may be instances where getting someone declared to be effectively insane and unable to stand trial is convenient to an authoritarian state. That has certainly happened in other countries. That is another reason why it is important that the issue should be determined by a jury if it is in dispute.
Is there not is another important reason? If a person is found unfit to plead, section 5 powers under the Criminal Procedure (Insanity) Act 1964 come into effect and orders that are analogous to hospital orders may be made. In other words, serious sanctions can be placed on a person who is found unfit to plead, which is surely a matter to be left to a jury.
My right hon. and learned Friend is quite right, and that was precisely the reason why I said that authoritarian states have found it convenient to lock people up on the basis that they are insane without trial or due process. We might be a million miles from that happening in this country, but it is wise for Parliament to guard against anything that could tend to take us down that road.
I do not wish to take up too much of the House's time, so I simply say to the Minister that I cannot understand why we are doing this. As a conservative with a small c as well as a large C, my attitude is that if something does not require reform, there is no earthly reason why we should tinker with it. The likely amounts of time and cost that will be incurred by preserving the existing system would be negligible. Inasmuch as there is a feeling that change should take place, the view taken by Vera Baird that the right of determination by a jury should be preserved when there is a dispute would be a better approach than that adopted by the Government.
I am afraid to tell my hon. Friend that the more I listen to his argument, the more I conclude that the Redcar solution, if I may call it that, appears to be better than his. Why did he not table an amendment in those terms?
I had not fully appreciated the solution proposed by the hon. and learned Member for Redcar at the time at which amendment No. 67 was tabled. My right hon. Friend will notice that the amendment would simply delete clause 22 entirely. Our approach says that we do not need to tinker with this aspect of the law. I shall invite the House to divide on the amendment unless the Minister can exercise colossal persuasion on me to take a contrary view because I do not think that it is an inappropriate way of dealing with the matter. However, the Bill still has to go back to the other place, which is where its passage started. The Government may well defeat us this evening, but if they consider that the hon. and learned Lady's suggestion has merit, they will have the opportunity to accept the proposal—the Minister could do so this evening, I suppose—and the extent of the disagreement between us would be greatly reduced.
On a somewhat different yet related point, I note that my hon. Friend's amendment applies to clause 22. However, clause 23 provides for what I construe to be a parallel procedure for Northern Ireland, although that clause will amend an order. Will he clarify his thinking about that? Does he think that it would be appropriate to have a common arrangement throughout the various parts of the United Kingdom?
If my hon. Friend reads amendment No. 68, which is linked to amendment No. 67, he will note that it says:
"This subsection does not apply to the amendment in paragraph 60 of Schedule 10 (which accordingly extends to England and Wales only)".
I hope that that answers his question.
We want the Government to give us a proper explanation of why the procedure should be changed. I am wholly unconvinced and do not think that we are discussing an exercise in semantics. Important decisions, such as a person's fitness to plead, should be determined in our legal system by a jury, especially if that is a matter of dispute. Unless the Minister can persuade me to the contrary, I shall press the amendment to a Division.
I support the observations made by my hon. Friend Mr. Grieve. It is important to bear it in mind that a disability applicable to clause 22 has a fairly wide meaning. Insanity is covered, of course, but so are deafness and the fact that someone is dumb. The provision extends to circumstances in which it is thought that a defendant is incapable of giving instructions to his or her legal team. One also needs to keep it in mind that juries have to address similar issues in many circumstances that are not unlike what we are contemplating. For example, if the question of diminished responsibility is raised in cases of alleged murder, juries have to address technical questions not unlike those that arise in cases of an unfitness plea. That is also true when the defence of insanity is raised because that, too, has to be addressed by a jury.
I refer my hon. Friend to a further range of cases in which a defendant refuses or declines to give evidence. It can then be asserted that there are good reasons for that, and that person's failure to give evidence should not be held against him by reason of those good reasons. In that class of case, the jury often has to determine whether the reasons were good, which often relates to the mental state of the defendant. So the jury already has to consider technical questions in many cases.
Indeed, the Government cannot say that a jury is incapable of addressing those questions because subsection (5) of clause 22 preserves the role of the jury in those cases when the question of fitness to plead arises after arraignment. In those cases, the Government have said in terms that the question is to be determined by the trial jury. So just pause for a moment: it cannot be asserted that a jury is incapable of dealing with the question because the Government say that it is to be dealt with by the jury in post-arraignment cases, and in the other cases those questions have to be determined by a jury, so why the change, given that it cannot be the incompetence of a jury to determine the issue?
Vera Baird may have identified both the cause and the solution. I am prepared to accept that there is agreement in the great majority of cases between the Crown and the defence teams on unfitness to plead. Incidentally, that does not conclude the issue because a judge, for example, might decide that the Crown and the defence teams are wrong. I have encountered—although I do not think that I ever personally appeared in—circumstances in which that has arisen.
The hon. and learned Lady's solution is attractive, but there probably should be a discretion for the judge to order a jury trial if he thinks that the consensus between the Crown and defence is unsound or needs to be tested. Although the Redcar solution has huge attractions, it should be underpinned by a discretion on the part of the judge to order a jury trial on that issue of fitness to plead if for other reasons he thinks that that is appropriate.
My hon. Friend the Member for Beaconsfield asked why we are going down this road. In part, it may be because it will save money. That is not an unworthy motive and is addressed by the hon. and learned Member for Redcar, but I am concerned that we should not diminish jury trials arbitrarily. My hon. Friend the Member for Beaconsfield said that the jury trial is under attack by the Government. Indeed, it is even under attack within the Bill, at clause 17, which we debated. I do not want to attack it.
It is also important to keep in mind the point that I made to my hon. Friend. Under clause 24, if a person is found to be under a disability—according to the Government's position that will be decided by the trial judge—it falls to the court in appropriate circumstances to impose various orders in respect of the defendant, including hospital orders, supervision orders and treatment orders. If the Government's position remains unchanged, the question of fitness to plead will be determined by the judge alone. That may lead to the introduction of a number of orders, which can be used to deprive a defendant of his or her liberty, and I simply do not like that.
To reinforce the powerful and valuable point that the right hon. and learned Gentleman is making, some of those orders can be made for an indeterminate period.
Indeed. If you will forgive me, Madam Deputy Speaker, I shall pursue that. I was Under-Secretary at the Home Office very many years ago, and was involved in decisions about when individuals detained in special hospitals should be released. I therefore know that it is extremely difficult to determine whether someone held in a special hospital is sufficiently safe to be allowed back into the community. I therefore echo the point made by Mr. Llwyd—the power of a judge sitting alone to impose a sentence or order following his adjudication about fitness to stand trial could result in a patient being held for a long time in a special hospital, because people are sensitive about the risk of discharging them.
I am flattered that the right hon. and learned Gentleman finds the Redcar solution attractive, but he is going slightly over the top. Two psychiatrists on opposite sides in a case may agree that someone is not fit to plead. Indeed, in cases that I have handled, four or even more psychiatrists have reached such an agreement. In those circumstances, why would we need a jury? I urge the right hon. and learned Gentleman to consider that somebody in the community can be sectioned by two doctors—we do not have a jury to rubber-stamp that decision.
That is a perfectly fair point, but may I mention the name "Saunders" to the hon. and learned Lady? She will remember that there was extensive agreement that Mr. Saunders was suffering from advancing dementia. As I recall, the Court of Appeal decided that his illness was so advanced that he should not be held in custody. I believe that that gentleman has now made a remarkable recovery. Sometimes, the experts can get it wrong, and in cases where the trial judge smells a rat he may think that the issue should be determined by a jury.
My right hon. and learned Friend will know that I am a lay person, so I defer to his legal expertise in this matter. I do not wish make any claims of my own, but the issue of detention and process is important. He will have studied the recent law report on the Bournewood judgment in the European Court of Human Rights. The court, in its wisdom, found both the Government and British legal procedures defective, as people were held without their consent, which they were not capable of giving, and were effectively detained without due process. Is it not incumbent on us, therefore, to get the process absolutely right?
I am sure that we need to do so but, to address the point made by the hon. and learned Member for Redcar, in many cases, perhaps even the great majority, there is not any dispute about the extent of the disability. In such cases, I accept that a jury should not be empanelled. I do not, however, accept that that conclusion is appropriate when there is a serious dispute. In any event, there should be discretion, even when the experts on both sides are in agreement, to hold a jury trial and have a proper adjudication if the judge thinks fit. If I continue speaking, Madam Deputy Speaker, I shall repeat my argument, so I shall conclude.
On a point of order, Madam Deputy Speaker. The House faces a dilemma. The more we listen to the debate, the clearer it becomes that the mood of the House is in sympathy with the amendment suggested by Vera Baird, which is not before us. Would you be prepared to accept a manuscript amendment on the basis of the amendment suggested by the hon. and learned Lady?
What a shame it is that we have such a restrictive timetable that we are not able properly to debate matters before us in this important Bill. It illustrates the difficulties that we face. When the point of order was raised, I had high hopes that there might be a way of considering the sensible suggestion from Vera Baird. I noted carefully the Minister's response to it, which seemed positive, judging from his body language. He was writing away. It is not unknown for Ministers to make important announcements very late in the proceedings on a Bill. Some of us might have considered this a perfect opportunity for him to announce that he was proposing to make an amendment to the Bill—one which, for once, many of us would find entirely suitable and proper.
May I make it clear, first, that I have not proposed an amendment either now or in Committee and, secondly, that I made the suggestion in July or thereabouts, so there has been ample time for anyone else to table an amendment along those lines if they wanted to do so? It is hardly fair to blame the Minister for the fact that the Opposition did not table an amendment.
We are always careful not to tread on each other's toes by taking amendments that other hon. Members suggested. It is not at all good parliamentary procedure. Let us return to the case in point. We are seeking to address the issue that the Government have put before us, which is—
I am grateful to the hon. Gentleman. I feel obliged to point out, in respect of comments about pinching other people's amendments, that it was well established in Committee that Vera Baird was extremely sensitive on that topic, when there was any suggestion that anybody might be running with an amendment that she was interested in.
I am grateful to the hon. Gentleman for giving way. I wanted to intervene on his opening remarks, but events overtook me. I bemoan the fact that we do not have time to debate the Bill. As this may be my only opportunity, may I say how disappointed I am that we could not debate the two groups of amendments on domestic violence and restraining orders, especially those on domestic violence, which contain the precious provisions on the domestic violence advocacy service? I have therefore been even more alarmed at the sparsity—
Absolutely, Madam Deputy Speaker. We have not had the opportunity to discuss the points that the Government conceded in a couple of later amendments, which I would have welcomed.
There is a serious concern about what is to some extent an anodyne suggestion about fitness to plead. Somewhere deep within the recesses of the Home Office, there is a Department whose sole interest and mission is to find ways to reduce access to jury trial. Every single Home Office Bill that comes before us nibbles away a little bit more at the concept of recourse to jury trial in this country. Some hon. Members in all parts of the House, but particularly on the Opposition Benches, believe that jury trial has stood us well over the centuries and we wish to protect it. We have had to fight off such depredations time and again.
It may be that economic issues are involved and that it will be cheaper to proceed as the Government propose. It may be that the measure will make little difference in most cases, but there will be instances in which it does make a difference. Where there is dispute, as the hon. and learned Member for Redcar said in her suggestion that fell short of an amendment, it is appropriate that the case should be referred to a jury for the protection of the defendant and in the interests of justice.
As Mr. Hogg said in what I thought was a very apposite contribution, the point is that we are not talking simply about the initial decision on fitness to plead in terms of the conduct of the criminal trial; we are talking about everything that flows from that in the future determination of what will happen to the individual concerned. That could, in effect, involve incarceration, albeit in the context of mental health treatment, and that could mean sine die if it happens. That is an important issue, and I believe that it is appropriate for a jury to be involved, which is the situation at the moment.
If we are to make this change, the Government must produce a very cogent reason as to why it is essential for us to do so. We have not heard that argument in Committee, on Second Reading or in the debates in another place. Indeed, those who were exercised about the issue in another place felt that the points that they were raising were simply not addressed by the Minister who responded to the debate.
The only assumption that we can make is that the provisions are part of the war of attrition against the process of jury trial that this Government have for some reason chosen to wage. That is not good enough reason. On the contrary, it is good enough reason in itself for us in this House to say no. Until and unless the Government produce arguments that what is proposed will not only be cheaper, but will improve the quality of justice in our courts, I think that we are entitled to take not just a sceptical attitude, but a hostile one, to something that is not of proven value.
When the Minister responds, I hope that he will do one of two things. He should either provide a definitive argument as to why the Government must have the measure at this time and what the benefits are—we have yet to hear such an argument—or say "No, we were clearly mistaken; there are better ways of doing this. The debate that we have heard has perhaps provided some signposts as to where that eventual resolution may come, and although we do not like making announcements at the end of proceedings in the later stages of a Bill's passage in the House of Commons, we will nevertheless give the matter careful consideration and table an appropriate amendment in another place, even at this late stage in the proceedings, and before the Bill comes back." That seems to me to be the right way of proceeding, and I hope that it is an avenue that he will consider.
It would be most appropriate if the Government were to agree to our requests and make the amendments in another place, where the noble Baroness Scotland of Asthal deployed the argument that to convene juries in such instances would be a waste of time and resources, which is not an adequate basis from which to advance the proposals.
The worst possible argument against having a jury in a trial is that it is a waste of time and resources. Those of us who are interested in the quality of justice and the process of our courts say that juries are not a waste of time and resources, but the bedrock on which the British system of justice is based, and we should not resile from that position.
As always, I declare an interest: I sit as a recorder of the Crown court and as a part-time district judge in the magistrates courts. My hon. Friends on the Front Bench have done the House a service by tabling the amendment, which addresses the important issue of fitness to plead. I am bound to say that the issue has not arisen very often—if at all—in my experience of magistrates courts. Of course, certain cases may only be tried summarily, so one can envisage a situation in which it might arise, but I have not come across it in some 10 years of part-time judicial sitting. That is not to say that mental health issues do not arise in those courts—they do—but I have not come across the issue of fitness to plead. I imagine that it occurs fairly infrequently in the Crown court and, as was said earlier, I imagine that in many such instances the Crown and the defence agree on the proper way forward.
When one deals with fitness to plead, one inevitably deals with a defendant who is, for one reason or another, vulnerable and who may need more protection than a less vulnerable defendant. So far as such a vulnerable defendant is concerned, the consequences of a finding and a disposal may be severe, which is a point that was made earlier in the debate. Such individuals may be detained for almost indefinite periods in very difficult situations, which is the point that Mr. Llwyd made very well in his intervention a moment ago.
I have not actively practised for some little time, but is it right that if a judge decides that someone is unfit to plead, they can automatically send them away? I think not. In that case, a second process is undergone to establish whether that person has committed the alleged acts that would form the crime, if they were not unfit to plead. A jury must hear the second stage, which it is not proposed to change.
Those who practise at the Crown court more than me will correct me. Disposals are available in such situations, and they involve the detention of the person concerned.
A jury is not required for the second stage referred to by Vera Baird. If evidence is given to the judge, it is sufficient for a hospital order to kick in, in which case a second jury is not required.
I am grateful to the hon. Gentleman.
Let me move on. My right hon. and learned Friend Mr. Hogg made the important point that clause 22 recognises and establishes the value of the jury. The Government propose that, pre-arraignment, the matter will be for the judge alone, but post-arraignment it will be a matter for the judge and jury. That recognises the value of the jury in certain circumstances, so the Government are not saying that the jury is not properly qualified. They are saying that, pre-arraignment, it will be a matter for the judge alone.
I am interested in the Government's reasons for their actions. So far, there has been no suggestion of the reasoning behind the proposal. It cannot be that the jury is not competent to determine the issue. It must therefore be to do with money. Earlier, Mr. Heath referred to a statement in the other place about the reason having to do with time and resources. As I understand it, that means time and money. The Under-Secretary should tell us how many examples a year he envisages in the Crown court. How often will the provision be applied? He must have figures, otherwise he would not have made the proposal.
What is the cost of empanelling a jury? I do not believe that it is necessarily terribly expensive. Even if it were, surely the principle of what is just, right and in the interests of the person in the dock comes way ahead of financial considerations.
The Auld report referred to that. Its sub-text was to smash away as many jury trials as possible.
The hon. Gentleman makes a very good point. As well as the financial point, the provision may be a further attempt by the Government to reduce juries' influence in our legal system. I, for one, deplore it.
I refer hon. Members to my entry in the Register of Members' Interests.
In most debates on new provisions, the proposer makes a case for change. Our problem, which the hon. Member for Somerton and Frome mentioned, is that we are operating in a vacuum to some extent because we have not yet heard what the Under-Secretary has to say. He has not sought to catch your eye, Madam Deputy Speaker, early in the debate to explain why he believes that the clause is necessary. The Government seek to remove a provision that has existed in our law for 40 years and the Under-Secretary therefore has to make a case for the change.
Subsection (5) reveals the reason for including the clause. It gives the game away, and it would appear that the reason centres on cost. As I listened to my hon. Friend Mr. Grieve and Vera Baird, I was increasingly attracted, if not to the "Redcar amendment"—the hon. and learned Lady claims that that does not exist—then to the "Redcar suggestion." I am reminded of the words of the late Lord Hailsham, who said:
"Two heads are better than one even if they are sheep's heads."
I believe that 12 heads are better than one. As we do not have the option of voting for the Redcar amendment, I am happy to support amendment No. 67.
I have little time and I therefore want to make two or three simple and clear points. Clause 22 does not mean the erosion of trial by jury. In answer to several points, I emphasise that we propose that a judge makes the fitness to plead decision but that finding facts and ascertaining whether the defendant has committed the offence with which he has been charged is a matter for the jury, not the judge alone. We must be clear about that. Mr. Grieve read far more into clause 22 than is the case. The judge will determine fitness to plead and the jury will subsequently hear the case. It is important that that message is understood.
There is an issue about the effective use of court resources and we need to ensure that every jury is valued for the time that it can give. The provision is also in the interests of vulnerable defendants who currently undergo two lengthy processes whereby they have to listen to evidence from medical practitioners in the first hearing. And of course, if the defendant subsequently wishes to challenge the judge's finding, the judge must state his reasons to the court. The jury would not have to give their reasons, but the judge would. That would give grounds on which someone who was found unfit to plead could challenge the decision of the court.
The provision is a recommendation of Lord Justice Auld, and the recommendations are now four years old. We believe that the proposal is too important to the courts—and, indeed, to vulnerable defendants—to be delayed any further. It is time that we made progress—
On a point of order, Madam Deputy Speaker. I seek your guidance in view of Mr. Speaker's ruling that important announcements on policy should first be made to this House. At 10.11 this morning, the Home Office put out a news bulletin entitled "Putting Victims First: the Domestic Violence, Crime and Victims Bill". It says:
"The Home Secretary also announced today that the Government is setting up a review into the law on murder."
On the second page in notes to editors, it states:
Madam Deputy Speaker, is it in order for the Home Secretary to make an announcement to the press that has not been preceded by an announcement to this House on a matter of such importance? Secondly, is it not misleading of the Home Secretary to suggest to any hon. Member—or, indeed, the press—who might read the statement that, notwithstanding his discourtesy in this matter, we were nevertheless going to hear from him during the course of our six-hour debate this afternoon? I seek your guidance, Madam Deputy Speaker, on what can be done to ensure that announcements are made properly to this House and not through the device of being announced in the course of a debate to which they are not germane. What can Members of this House do to ensure that they are not misled by Government press notices suggesting that something is going to happen during the day when it either will not or cannot?
I may be able to help with the original point of order. It would have been perfectly feasible and possible for me to have made the announcement to the House had the Opposition not filibustered—[Interruption.]
Notwithstanding that, I apologise to the House for not having had the opportunity to address it on the issues that have been raised tonight. Had I had the opportunity to speak on Third Reading, and therefore to be challenged on this matter, I would have done so.
It is, Madam Deputy Speaker. We have all heard the Home Secretary accuse Opposition Members of the parliamentary abuse that is filibustering. That is an absolutely outrageous suggestion. [Interruption.] I understood that decisions on whether or not there has been filibustering are for the Chair alone to make. Have you, Madam Deputy Speaker, or any of your predecessors in the Chair today, heard anything at all that was out of order and which could be remotely connected with the abusive term "filibustering"?
It is, Madam Deputy Speaker. [Interruption.] The Home Secretary has made it plain, very courteously, that he was going to tell us about the statement that he wanted to make in the Third Reading debate. Would it be possible to arrange that he make an early statement tomorrow so that he can be questioned about what he wants to tell us?
On a point of order, Madam Deputy Speaker. In view of the fact that the Home Secretary advertised to the press today that he was to make a statement on Third Reading, and in view of the fact that he could have made a statement at 7 o'clock, which is the point of interruption, have you had any notification that he intends to make a statement tomorrow about the very serious issues on the review of the sentencing for murder?
Further to that point of order, Madam Deputy Speaker. Can you help the House and even the Government by ruling that on a future similar unfortunate occasion, should it ever occur, and I hope that the Chair will do everything to ensure that it does not, it will be in order for the Home Secretary to request to make a statement at the conclusion of business at 7 o'clock? His synthetic anger simply belies the fact that he either does not understand how the House works or he did not want to make the statement in first place.
I have ruled on that by saying that I have had no request from the Home Secretary to make a statement, but I repeat that he will have heard what the right hon. Gentleman said.
It is a separate point of order about the business of the House.
Can you confirm, Madam Deputy Speaker, that notwithstanding all the changes to truncate debate, it is still possible, if the Government wish, for business to run beyond 7 o'clock, so it was possible for the debate to continue longer if the Home Secretary was determined to say something?