My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Baroness Scotland of Asthal.)
moved Amendment No. 41:
After Clause 8, insert the following new clause—
"RESTRAINING ORDERS: NORTHERN IRELAND
(1) In Article 7 of the Protection from Harassment (Northern Ireland) Order 1997 (S.I. 1997/1180 (N.I. 9)) (power to make restraining order where defendant convicted of offence under Article 4 or 6 of that Order), in paragraph (1) omit "under Article 4 or 6".
(2) After paragraph (4) of that Article insert—
"(4A) Any person mentioned in the order is entitled to be heard on the hearing of an application under paragraph (4)."
(3) After that Article insert—
"7A RESTRAINING ORDERS ON ACQUITTAL
(1) A court before which a person ("the defendant") is acquitted of an offence may, if it considers it necessary to do so to protect a person from harassment by the defendant, make an order prohibiting the defendant from doing anything described in the order.
(2) In proceedings under this Article both the prosecution and the defence may lead, as further evidence, any evidence that would be admissible in proceedings for an injunction under Article 5.
(3) Paragraphs (3) to (6) of Article 7 apply to an order under this Article as they apply to an order under that one.
(a) a county court allows an appeal against conviction, or
(b) a case is remitted to the Crown Court under paragraph (4), the reference in paragraph (1) to a court before which a person is acquitted of an offence is to be read as referring to that court.
(6) A person made subject to an order under this Article has the same right of appeal against the order as if—
(a) he had been convicted of the offence in question before the court which made the order, and
(b) the order had been made under Article 7.""
We have debated at length the provisions in the Bill that relate to restraining orders. These orders will give continued protection from harassment following a conviction or acquittal for any offence where the court considers it necessary to make the order to protect a person from harassment.
The Government believe that the same degree of protection should exist in Northern Ireland as in England and Wales. That is why we have tabled Amendment No. 41, which would extend the provisions in Article 7 of the Protection from Harassment (Northern Ireland) Order 1997 to allow for restraining orders to be made on acquittal as well as on conviction, and will apply these to all offences, not just those under the 1997 order. These provisions replicate for Northern Ireland the provisions of Clause 8, which apply only to England and Wales. Amendments Nos. 101, 117, 124 and 125 are all consequential on that change. I beg to move.
My Lords, in moving this amendment, I shall speak also to Amendments Nos. 41B to 41E, if only to explain why at this stage I will not be pursuing them. As the Minister herself said, we had an extensive debate on Tuesday evening with regard to the application of these provisions to England. The Government's amendment, Amendment No. 41, replicates those provisions for Northern Ireland.
When the Government brought forward the clause in Grand Committee, in which noble Lords may not vote, I made it clear that I would be grateful if the noble Baroness would withdraw the government amendment at that stage, simply because it had been tabled so late in the day that it had not been possible to take soundings from my colleagues in another place and from organisations in Northern Ireland.
As with a previous clause relating to Northern Ireland, there are still some concerns about the clause. However, on Tuesday evening, when we debated the provision applying to England, I took the opportunity to test the opinion of the House, as I believed that it would be better to have clarity about the burden of proof in the Bill. In testing the opinion of the House at 10 o'clock on Tuesday night, I found that the troops were not around, and I lost the Division. It would be churlish of me to have a go today on the Northern Ireland provision, when the House had signified its dissent from my view on Tuesday evening. I shall beg leave to withdraw the amendment.
My noble friend's amendments, especially Amendment No. 41A, would make the nature of the offence of harassment more specific. Amendments Nos. 41B and 41C have the advantage of tying down a witness in the trial. That is an advantage.
I have an open mind on Amendment No. 41D, but I have nothing against it. Amendment No. 41E, which says,
"leave out 'both the prosecution and the defence' and insert 'the prosecution, the defence and the person against whom it is proposed to make an order under Article 7A(1)'", would make the matter more specific. That is why I support the amendments.
My Lords, I support Amendment No. 41B, moved by my noble friend. I apologise for the fact that I was not here at the end of the debate on the matter earlier this week. The noble and learned Lord the Attorney-General probably dealt on that occasion with the point that I am going to make.
In Committee, I made the point that, if courts are to have the power to make a non-molestation order against a defendant, although he has been acquitted, it should be made clear that the power also exists for the court to make such an order in respect of any other witness or the complainant. It may be that the defendant may be shown to require the protection of the order just as much.
I understand that the noble and learned Lord the Attorney-General said that he would consider the matter again. I hope, despite his rather questioning expression, that that is still his intention. It would be sensible to make it clear that the power to make an order on acquittal means that the court can make an order not only in support of the defendant but against anybody who has taken part in the hearing.
My Lords, I thank the noble Baroness for making it clear that she does not wish to press the amendment. I shall say a word or two in response to the comments made by noble Lords. To the noble Lord, Lord Carlisle of Bucklow, I say that I know that the similarity between myself and my noble and learned friend the Attorney-General is overpowering, but, in fact, I answered on the matter.
As the noble Lord, Lord Carlisle of Bucklow, knows, the effect of the provisions is that an order can be made in relation to a defendant but not in relation to another witness. The noble Lord will remember that, when we debated the matter last time, we made it clear that the ability of the court to make a bind-over in relation to any other person in the court would still prevail. The noble Lord will also remember that, as a result of comments made by the ECJ, one must be very specific, when making a bind-over, about the precise ambit and the conditions that apply. That route could be used.
The amendments tabled by the noble Baroness, Lady Anelay of St Johns, and the noble Viscount, Lord Bridgeman, would make the same changes to the provisions allowing courts in Northern Ireland to impose restraining orders on acquittal that they sought to make to the corresponding provisions for England and Wales. They are an attempt to make it clear that, when making a restraining order on acquittal, a court must be,
"satisfied on the basis of facts proved on a balance of probabilities".
The amendments would also allow the courts making a restraining order to do so in respect of witnesses in the trial and to specify that the terms of a restraining order could prohibit only acts that would amount to harassment. Lastly, they would give the person against whom it was proposed to make the order the right to be heard.
Having discussed all those issues at some length in Committee and earlier, I hope that your Lordships will agree that it is unnecessary for me to recite all my objections to the proposals. To the noble Lord, Lord Renton, I say that we appreciate that there are difficult and different issues in Northern Ireland, but, having considered the two situations, particularly with regard to this field, we feel that there is no distinction in fact to be drawn between the way in which the provisions would operate in Northern Ireland and the way in which they would operate in England and Wales.
Unless noble Lords want me to recite everything that I said on a previous occasion, I shall gratefully accept the noble Baroness's generous approach in accepting her defeat, albeit at 10 o'clock.
My Lords, I am grateful to the Minister. I accept that defeat, but I shall keep on trying on other matters. I am a very trying person, as she knows.
For the reasons that I gave, I shall not press the amendment. I am grateful to my noble friends for their support and to the noble Lord, Lord Thomas of Gresford, for his. We did not debate Amendment No. 35—which is the subject of Amendments Nos. 41B and 41C—in any detail. The noble Lord supported it.
There are still issues regarding restraining orders to which we will need to return at Third Reading, but I hope that they will be focused on a narrow range of subjects. At this stage, I beg leave to withdraw the amendment.
My Lords, in moving Amendment No. 42, I shall speak also to Amendments Nos. 43 to 45. All the amendments are supported by my noble friend Lord Campbell of Alloway and by the noble Lord, Lord Thomas of Gresford.
In this clause, the Government seek to remove jury trial in certain cases. The Government's proposals have been put there to overcome the problem that was caused by the decision in the case of Kidd, which precluded the practice of sentencing on the basis of specimen counts, if those counts were the only ones proved and/or admitted by a defendant.
Some organisations, such as Liberty, oppose the proposals altogether. I respect their views. Liberty is not persuaded that the tests set out in Clause 9(5)—that it would need to be in the interests of justice for certain counts to be tried without a jury—are ever likely to be met. I have therefore kept that view carefully in mind during our debates. It confirmed my view that the amendments presented today are a minimum required to make these proposals acceptable and workable.
My honourable friend in another place and I have already made clear during debates on the Criminal Justice Act that we would look with favour on any sensible resolution of the Kidd problem. However, it should be noted that at that stage none of us had seen the Government's amendments, but we had received a letter from Judge Alan Wilkie QC, the Law Commissioner, which was circulated to Oliver Letwin, Simon Hughes, the noble Lords, Lord Thomas of Gresford and Lord Dholakia, my noble friend Lord Hunt of Wirral and me.
Judge Alan Wilkie's concern was to highlight the view of the Law Commission that its proposals should not be seen in the same contentious light as those that were then under consideration in the Criminal Justice Bill. He made it clear that,
"It is not our intention by our scheme to reduce the number of jury trials, or the number of counts on an indictment which will be the subject of jury trial".
As I made clear in Grand Committee, our objective is exactly the same. Any proposals in this Bill should certainly not be an assault on jury trial. They should provide a sensible way forward by retaining jury trial in those cases where there is such a large number of counts that there are too many to be accommodated in a single trial and, as a consequence, there would be no jury trial at all.
We also need to consider the Government's concern that proposals could lead to a jury trial on such a limited group of counts that the sentence would not be appropriate to reflect the extent or level of offending. My amendments, which I outlined in Grand Committee and return to today, provide the basis for ensuring that the Government's solution is the most appropriate solution to the problem caused by Kidd.
I offer Amendments Nos. 42, 43 and 44 as the best way forward unless the Government can find a way of reassuring me that Amendment No. 45 would provide a sufficient way ahead on its own. Amendments Nos. 43 and 44 are consequential on Amendment No. 42.
I note that the Law Commission states in its report No. 277 at paragraph 7.6 that:
"although it [this method of trial] will be available for use in certain cases which would attract the sobriquet of 'serious fraud' and will also be capable of being used in non 'serious' fraud and other cases, it will not be available for use in all cases of 'serious fraud'".
My objective has been to ensure that the Government will not try to introduce, through the back door, the proposals that were rejected by this House in the Criminal Justice Act.
"nothing in this part is intended to encroach or encroaches on the undertakings given by my right honourable friend the Home Secretary during the passage of what is now the Criminal Justice Act 2003. Those remain separate and apart".—[Official Report, 2/2/04; col. GC 265.]
As a consequence of that I am therefore able to give today my party's agreement to the principle behind the Government's proposals, but I believe that they still need some amendment to make the detail of them appropriate and workable.
Amendments Nos. 42, 43 and 44 make it clear that the conditions set out in Clause 9 are conjunctive and not disjunctive. The amendment was prompted by a drafting complaint made by some of my noble friends and people outside of the House. The conditions must be met if an application by the prosecution for part of a trial on indictment in the Crown Court to proceed in the absence of a jury is to be successful. Despite the Minister's reassurances in Grand Committee, at col. GC 265 of the Official Report on
The amendments also make it clear that all the counts must be of the same type of offence. Amendment No. 44 has an added advantage. It alters the first condition in the Government's subsection (3) where they say that the condition is that the number of counts included in an indictment is likely to mean that a trial by jury involving all the counts would be impracticable. I have replaced that by what I believe to be a stronger test; that is, the number of counts is such that the trial would be so unmanageable that it would not be possible to proceed.
Amendment No. 45 offers the same proposal but as a standalone amendment without the encumbrances of my proposals in Amendments Nos. 42 to 44. I am still open to persuasion on Amendments Nos. 42 to 44, but I cannot as yet see any merit in dropping the intent behind Amendment No. 45. We had a lengthy debate about the concerns behind the use of the word "impracticable" in Grand Committee. I remain of the view that it could allow a concern with the budgetary demands of the Treasury to override the public interest of having a trial go ahead with a jury.
If the Minister remains of the view expressed at col. GC 265 of the Official Report on
My Lords, we support Amendments Nos. 42, 43 and 44. We agree with everything that the noble Baroness, Lady Anelay, said. The counts included in the indictment should be for the same or similar offences, which is the material change that Amendment No. 44 makes. We also believe, and said so in Grand Committee, that "unmanageable" is a better word than "impracticable", again, for the reason that we would not wish to see trial by jury being set aside because of cost consideration.
I also speak to Amendment No. 46, which is grouped with these amendments. Clause 9(9) sets out a definition of where a count is to be regarded as a sample of other counts, but it does not lay down very many conditions. It states merely that,
"the defendant in respect of each count is the same person, and . . . the judge considers that the sample count is a sample of the other counts".
How many times have I addressed your Lordships on the basis that the discretions should remain with the judge in criminal trials?
In this area, it is helpful to put some boundary on the judge's discretion by insisting that the evidence in respect of each count is admissible at the trial of the sample count. When that point was raised in Grand Committee, the noble Baroness, Lady Scotland, said that she was tempted to say "yes" to my suggestion that that should be a part of the definition. She went on to say that although she was uncomfortable about giving an unequivocal "yes", she would consider the matter and might return with a similar response or more arguments. We consider this to be a very important way in which the discretion of the judge is put within certain bounds rather more than it simply being the same defendant in respect of each count. That is the reason why this amendment is put forward.
My Lords, I support Amendments Nos. 42 to 46 for all the reasons that have been given. I do not think that it is appropriate to seek to improve on the reasoning. I just want to say that I am, as are all other noble Lords, very concerned about the jury question and the prospect that somehow they will be surreptitiously removed. I am very concerned about that. I support the amendments really on that assurance.
My Lords, if the noble Baroness, Lady Anelay, accepts, as I think that she did in Grand Committee and again today, the good faith of the Government that Clause 9 is not some kind of backdoor way of reintroducing clauses that the Government lost in the Criminal Justice Bill, I have a real difficulty in understanding why she is pursuing this amendment again today, as well as having argued it in Grand Committee.
It seems that Clause 9 is seeking not to reduce the number of jury trials, but to preserve the possibility of a jury trial in cases where, because there are so many small counts on small matters in an indictment, a jury trial would be impracticable or, if she prefers to use the word, unmanageable.
The noble Baroness referred to concern about the conditions laid down in Clause 9. As the clause stands, I cannot read it in any way other than that it allows for there to be a trial by jury on some counts and trial by judge alone on the other counts, with the great advantage of the judge being able to sentence, if there is a finding of guilt, on a whole number of counts and not only a small number of them.
If that is so, each of the three conditions in Clause 9 has to be complied with. I shall not read them out but they are very important conditions. Perhaps the third condition in relation to the interests of justice is the most important. It is not merely a throw-in line; it includes the public interest and the interests of justice so far as concerns the defendant or defendants. Unless the judge is satisfied as to the interests of justice being fulfilled under the Clause 9 procedure, then that procedure would not be available.
As to "impracticable" versus "unmanageable", I hear what the noble Baroness says about the Government perhaps wanting to follow a Treasury line and save money by using this procedure. The Government have sought to answer that concern. I do not have a particular view about the two words concerned but, overall, I doubt whether there is a great deal of advantage to justice in the amendment proposed.
My Lords, although I am not moved to follow Amendments Nos. 42, 43 and 44, I think there is a case for changing the word from "impracticable" to "unmanageable" for the reasons already expressed. I shall listen to what the Minister says in reply, but I cannot see any reason why the one word cannot take the place of the other to the greater satisfaction of your Lordships.
My Lords, in speaking in support of the amendments I risk the direct and simple criticism that I am raising a matter which should have been raised in Grand Committee at this stage of the Bill. But it has just occurred to me and I ask the Attorney-General—who I think is to reply to the debate—to forgive me for doing so.
As I understand it, the decision to divide is to be taken at a preparatory hearing before the judge prior to the start of the case. That is contained in the first line of Clause 10. The judge, therefore, faced with a large number of counts, decides that it is reasonable for the jury to take counts one to six. He considers that those counts are samples of counts seven to 20 which, depending on the outcome of counts one to six, should then be dealt with without a jury as allowed for in Clause 11.
Clause 11 states:
"where, in the course of the proceedings to which the order relates, a defendant is found guilty by a jury on a count which can be regarded as a sample of other counts to be tried in those proceedings, those other counts may be tried without a jury in those proceedings".
My question is merely this: what if the jury convict, but not of all the first six counts? What if they convict of one count but not of the other five? On the face of it, it appears that that would still allow the judge to try the other counts without a jury because there has been a conviction. But, in those circumstances, one would have thought the jury had made it clear by their decision that they did not look upon the counts as a pattern of behaviour but as an individual offence occasionally.
Some thought should be given to ensuring that it is made clear that there have to be convictions showing that it is accepted by the jury that there is a pattern of behaviour—that is, convictions on all six counts—before dealing with the other counts without a jury. The danger with the present wording of the Bill is that there could be one conviction out of the first six counts, and that would allow the remaining counts to be tried without a jury.
My Lords, I intervene perhaps as much to allow the noble and learned Lord the Attorney-General to receive help from his distant advisers as for any other reason.
Less frivolously, I hope that he will look favourably on the substitution of "unmanageable" for "impracticable". I think "unmanageable" gives the flavour of the anxiety with which those concerned will be afflicted. All of us long for shorter indictments, but sometimes it is not possible for justice to be done without a lengthy indictment. But the matter can be dealt with. The inconvenience and difficulty that flows from that can be mitigated by the device embodied in Clause 9. However, it is the manageability which is the test rather than the practicality.
I cannot enlarge on that. The noble and learned Lord the Attorney-General will get his advice very soon anyway and I do not need to say any more. I support all of the amendments, including Amendment No. 46, but that is conditional upon a satisfactory answer to the important technical point raised by my noble friend Lord Carlisle of Bucklow.
My Lords, I thank the noble and learned Lord, Lord Mayhew of Twysden, for his courtesy. I have enough to say before the answer to the question of the noble Lord, Lord Carlisle, arrives—I shall come to that in a few moments—and I shall speak first to Amendments Nos. 42, 43, 44 and 46.
As the noble Baroness, Lady Anelay, said, the same point about "impracticable" and "unmanageable" appears in Amendment No. 45, which is grouped separately. I shall say what I have to say about that at this stage and we shall see whether there is anything more to be said about it when she comes to move that amendment.
I have already detected wide consensus on the fundamental purpose and utility of these provisions. All of us who have practised in the courts before the decision in Canavan and Kidd will recall that it was commonplace that offences were put forward as sample counts; if there was a conviction, the judge would feel able to sentence on the basis of the totality of the criminality for which that sample was said to stand, not simply for the count that was there.
The reason for the decision in Canavan and Kidd—that a court could not sentence for something which was not admitted and of which the person had not been convicted—is, of course, logic which is unassailable. But, as noble Lords know, that has led to the position where someone could be charged with what are, in effect, samples of a series of conduct and without some other mechanism it would not be possible to sentence them for the degree of criminality involved. One good example of the many one could give is that of someone who was engaged in a series of frauds on the Internet, where a large number of victims were involved. A relatively small amount of money is taken from each victim but the totality is quite significant. In such a case, you do not want to say that the choice is, on the one hand, to prosecute 1,000 counts of fraud, requiring each victim to come to court; or, on the other hand, to find yourself saying that the defendant has only been convicted of defrauding £5,000—and that is all we can sentence him for—when in fact the totality of his conduct has been £1 million or something of that sort.
I say that because it is right that we should understand the purpose behind the clause. I know that that is accepted and I am grateful for what the noble Baroness said about her acceptance of the principle. I know that the honourable Member in another place, the shadow Attorney-General, made the same point, not only during the passage of this Bill but at the time the Criminal Justice Bill was going through. I do not therefore think I need say anything further to confirm what my noble friend Lady Scotland said about the intention behind this when she spoke in Grand Committee. It plainly is not in order to find a back door to something which was not accepted during the passage of the Criminal Justice Act.
As a matter of precision, let me point out that the provision in relation to jury trial and judge-alone trial in serious fraud was not rejected. It was passed, and remains on the face of the Criminal Justice Act. However, the noble Baroness is quite right that undertakings were given about what steps would be taken before, if at all, that provision was implemented.
My noble friend Lord Borrie makes the point absolutely correctly. This provision does not reduce the number of jury trials. There will still need to be, and there will be, jury trials in these cases. The provision prevents those jury trials being impossibly difficult to handle or impracticable. We will come back to what word we use. It ensures that people are sentenced for the full extent of their criminality.
Having said that, I turn to the specific differences between the proposals in Amendments Nos. 42, 43, 44 and 46 from the clause as it stands. The first change is the requirement which Amendment No. 44 would insert that,
"the counts included in the indictment are for the same or similar offences".
We do not regard that as necessary for two reasons. First, it is, in any event, a requirement of the indictment rules that offences to be inserted into an indictment should meet that test. So making that proposal a statutory requirement would add nothing.
Secondly, it will be necessary for the judge, in making an order, to be satisfied that each count or group of counts which would be tried with the jury can be regarded as a sample of counts. It is difficult to see how a judge could reach the view that something was a sample of counts without regarding the counts that were going to stand for it as same or similar offences. The amendment seems unnecessary for both those reasons.
The second change would be to substitute "unmanageable" for "impracticable". I have heard what has been said about that, not only by the noble Baroness but by the noble Baroness, Lady Howe, the noble Lord, Lord Carlisle, and the noble and learned Lord, Lord Mayhew, in particular. Plainly, there is not that much difference between the words—I think that is a matter of consensus. Why, then, change one word to the other? I have two points about that.
First, I reject the suggestion that the reason for using "impracticable" is to allow budgetary considerations to override the public interest. That is the consideration to which the noble Baroness, Lady Anelay, referred. Those were her words—would the budgetary considerations override the public interest? My Lords, they cannot. It is not a test for the Treasury or the Government whether it is appropriate in a particular case—it is a test for the judge. The judge, in our version or the proposed version, has to be satisfied that, as stated in Clause 9(5),
"it is in the interests of justice for an order" to be made. The same test would be inserted by the noble Baroness. In those circumstances, how could a judge say, "I think the public interest is not in favour of this taking place, but I will allow budgetary considerations to override it"? It is his judgment that it would be in the interests of justice to do it. That seems to be a conclusive answer to the concern raised by the noble Baroness.
My second reason is that I find "unmanageable" not a happy word to use in the context of control and conduct of a trial. Who is it, one is saying, is incapable of managing the trial? If you ask the judge whether he thinks a trial would be unmanageable, are you saying, "You must decide that you are not capable of managing this trial, or that someone else is not capable of managing it"? That is an attack, to some extent, on ability and capability, whereas the test of impracticability does not carry with it the same possible connotation that someone is simply not up to doing what is required.
While I started by saying that I think there is a consensus that there is not an enormous difference between the words, for my own part, I regard "impracticable" as a much happier word to use in the context of a statute, and one which a judge is required to consider.
My Lords, before the Minister leaves this topic, will he confirm that not only would budgetary considerations not come within the word "impracticable" but also matters of time, the court calendar, and so on, which may tempt a judge to deal with the matter rather more quickly than he otherwise would?
My Lords, I do not see any judge saying, "I think it is in the interests of justice to do it this way" just because it will mean that the case will finish on Thursday rather than Friday. I do not see that happening. A judge would have to be satisfied that it was appropriate to deal with it. He has to look at the nature of the case and the circumstances, with the appropriate sample counts, and decide whether it is in the interests of justice to do so. In my view, one can trust judges to apply the word "impracticable" properly.
"evidence in respect of each count is admissible at the trial of the sample count".
It is probable—indeed, it is highly probable—that, given the high degree of similarity that will exist between the sample and the subsidiary counts, much of the evidence admissible in the former would be admissible in respect of the latter. Indeed, it is not only probable, it would also be helpful, for the sake of the efficient trial of the subsidiary counts, to be able to rely upon the evidence, such as evidence of dishonesty, which will have come out in the first trial. However, it will not be at all helpful to use the concept of admissibility as a condition for this taking place, because the judge will have to make a pre-assessment in relation to the counts and the subsidiary counts that this condition will be met.
As the noble Lord and others will know, the current position is that counts can be included on the same indictment, even though the evidence on each of them is not admissible on the other. That sometimes gives rise to issues in the course of the trial, and we have all seen that take place. The way in which this has been dealt with by the courts, particularly by the House of Lords in the well known case of Christou, is to say that the discretion of the trial judge to sever an indictment must be left unconstrained and should not depend upon any strict rules of admissibility of evidence.
That is why I come back to this point: the noble Lord, Lord Thomas of Gresford, and others consistently said during the course of the Criminal Justice Act that we really ought to trust judges more; we should recognise that they are well trained and experienced in using their discretion properly in the interests of justice. I have said that I am also of the view that we can trust judges. In those circumstances, I believe that we can perfectly well trust judges to know what a sample count is, which is what they are being asked to do. They will be very familiar with that concept; they can work it out for themselves. They do not need us to make their job more difficult by saying that before they reach that conclusion, they have to go through all the evidence and make sure it is admissible in that way.
On the three changes that are proposed, it is not necessary to include "the same or similar". Your Lordships have heard why I think that the word "impracticable" should remain as it is. Thirdly, the necessity of including an additional condition of admissibility of evidence is not necessary and makes the judge's job more difficult. We should trust the judges to apply this provision in a sensible way—the way that is intended.
Finally, I turn to the question asked by the noble Lord, Lord Carlisle of Bucklow, who asked what would happen if a subsidiary count was related to more than one sample count and there is a conviction on only one of the samples. That is one way in which the example that he gave could have arisen. It is unlikely that a subsidiary count would be related to more than one count. The rational basis on which that could happen—when there is an acquittal on one count but a conviction on another—would be because the jury were satisfied that the course of conduct had taken place in relation to only one count. In that event, it would be for the judge to decide how to proceed.
For my own part, taking the example that the noble Lord gave, if there are six counts in the first indictment, only one of which results in a conviction, I would anticipate that the trial judge would take the view that it would not be safe for him to conclude that the jury were satisfied that this was a repeated offence by the offender. It would not be safe to proceed to deal with the subsidiary counts on the basis that they were, broadly speaking, proved by the first count. However, it would be for the judge to decide and one would leave the matter to his discretion.
My Lords, I am grateful to the Attorney-General because what he has said is helpful. He made it clear that one would not expect the judge to use the power he undoubtedly has—since he made the decision prior to the hearing—to try the other cases without a jury unless it is clear on the convictions of the jury as a whole that they have accepted that there was a series of offences rather than an individual offence. He made that clear.
My Lords, the difficulty of giving a categorical answer is that one would have to look at the circumstances of the trial, which only the judge would know. He would know whether the jury, in the course of the trial, had decided a specific offence in relation to one or two counts, perhaps in the early period. No doubt he would be able to interpret the verdicts. He may say, "What I interpret from this verdict, because of the way the case has been run, is that, although the false statements made in the early period of the trial were innocently false, the jury had obviously not accepted that they were made dishonestly. However, by their verdicts in relation to the later counts it is clear that, at least by April 2001, they are satisfied that he was acting dishonestly". In those circumstances, if the subsidiary counts all relate to that later period the judge could safely proceed on that basis. I offer that as an example of how the judge might interpret the verdict.
My Lords, I am grateful to all noble Lords who have supported the amendments that I proposed today. The noble Lord, Lord Borrie, asked why I had accepted the Government's assurance and then still said that changes needed to be made to the clause. Although I accepted the Government's assurance that the principle of what they were trying to do was one with which I concur, the way in which they drafted the provision means that we do not necessarily end up in the situation in which we would all hope to be. I was not reassured by the assurance in a sense. There still needs to be some tweaking, but not major surgery on this part of the Bill.
On the Attorney-General's rebuttal, he first attacked the issues over "the same or similar offences" and talked about indictment rules. The noble Baroness, Lady Scotland, also referred to the fact that indictment rules should be able to cover this matter. I have a similar approach to this question in Amendment No. 50. I will consider further what the Minister said with regard to my first amendment before we reach Amendment No. 50. I am not convinced by his rejection of my proffered solution of having "unmanageable" instead of "impracticable", because it has the advantages alluded to by the noble Lord, Lord Thomas of Gresford.
Although I do not intend press this amendment, which as I explained in the first instance, is part of a package solution, I still feel that the word "unmanageable" is better for the purposes of this Bill—in narrowing ways in which the jury trial would be obviated—than the word "impracticable". I do not in any way think that it criticises those people who would then be responsible for applying the terms of the clause in the real world. For me, it is not a case of an individual's capability being brought into question—that they cannot do the job—but whether the system as a whole can cope given all the other strains upon it. It is a case not of attacking individuals, but of questioning whether the system itself can always properly cope with the constraints upon it.
Although I will seek formally to withdraw this amendment, I give notice that when we reach Amendment No. 45, which we have covered by the debate on this group, I shall seek to test the opinion of the House. I beg leave to withdraw the amendment.
My Lords, In moving Amendment No. 47 I shall speak also to Amendments Nos. 48, 49, 53 and 54 in the same group. All the amendments are concerned with the essence of a single point, on which there will obviously be substantial disagreement.
I share totally the concept that discretion on these affairs should be left to judges. I take the point further: judges have a lifetime's experience, so it would be far better to leave them to get on with it. If judges do not do their work satisfactorily—I have not come across many that have not—they should not be there. Therefore, it is a much preferable system to have what in effect has developed from the authority and discretion of the old red judge on Assize and been carried through the years, rather than to have this Byzantine maze of complexity in Clauses 9 to 12.
I think back to the days when I served as a recorder. The last thing that I would have wanted would be to have the Bar say, "Have a look at this", "Have a look at that", and "Have a look at the other". If one does not know how to deal with a multi-count indictment, one should not be a recorder. One can borrow a thought from the remarkable maiden speech of the noble and learned Lord, Lord Cullen of Whitekirk. One has only to look at the maze of complexity in the provision of Clauses 9 to 12 and listen to some of the arguments and analysis made by the noble Lord, Lord Borrie, and my noble friend Lord Carlisle. I am not mocking their analysis. I am not in a position to do that and I would never dream of doing so, but the analysis should be unnecessary. Does not that aura of complexity, to use a noble and learned Lord's wonderful phrase, make your Lordships sigh for the relative simplicity of the past?
I want to be fairly short. At the moment, I think that the noble and learned Lord the Attorney-General and I are in agreement about a fundamental principle, that in essence discretion should be left to the judges. Where we disagree is that there should be a trial by a judge without a jury. That is a serious objection.
This amendment is built upon an adaptation of the extant regime. It deals with what is required in a little more detail and with greater precision. What we propose is written in plain English and I think that, with leave, it should be read. We propose:
"A procedure to reduce complexity and length of trial on multi count indictments in the interests of due and expeditious dispensation of justice on implementation of these provisions shall be introduced by Rules of Court to ensure that appropriate directions as to the form of indictment and on other matters arising on the depositions shall be given by a judge of the Crown Court at a pre-trial hearing subject to review by the trial judge before arraignment".
It is very important to retain that discretion of the trial judge. The way in which it is proposed to work is very simple.
"Before pre-trial hearing a judge of the Crown Court shall have considered whether on the depositions the form of indictment is appropriate in the interests of due and expeditious dispensation of justice, and whether certain directions such as set out in subsection (3) should be given".
I shall come to those directions in a moment.
If he forms the provisional opinion that such directions should be given, he gives notice to the prosecution and the defence and they then attend for a pre-trial hearing. At that hearing, the directions deal with
"severance of . . . counts with directions for trial on . . . other counts . . . designation of sample counts with directions that other counts lie on the file . . . election as to whether to proceed on substantive counts or on conspiracy counts which replicate the substance"— on the same depositions—
"provision of particulars of any count . . . amendment of indictment . . . disclosure of objections to admissibility", and so forth.
I added subsection (4) because, in Grand Committee, the noble Baroness, Lady Scotland, surprisingly said that she was rather attracted to this proposal. I suppose that the simplicity of it might have attracted her—I do not know; but she said so. But then she said, "The trouble is, it does not take account of Kidd". Well, my Lords, it does. It was designed and drafted to take full account of Kidd. So, for clarification, I have added subsection (4), which makes it perfectly plain that this does take account of Kidd.
I am not saying that I could hold the noble Baroness to her approval merely because I have taken that subsection, but I do ask the Attorney-General to approach this and the advantage of it with an open mind.
The last subsection makes provision for the panel of judges. Of course, for this pre-trial review, you have to have judges who are fully competent to deal with it. The subsection says that the panel,
I hope that there will be no need to have to change that drafting, but I am not too sure. That does not go to the essence of this problem.
It is simply the question of approach. Are you going to leave this to the judges with all their experience, to deal with it in the way that they think right? Are you going to ensure that Kidd is observed? Are you going to ensure that we do not have criminal trials by judge alone? To me—perhaps I am too traditionalist—that seems incredible. There are other ways of dealing with it.
I should be very interested to hear what your Lordships' reactions are to this. On that basis, I beg to move.
My Lords, I rise briefly to reflect again the views I expressed in Grand Committee. Although I cannot follow my noble friend down the very careful and enticing path that he prepares for us—because I have given my word that, as a matter of principle, I have accepted the Government's approach—I think that, with his experience, expertise and a lifetime in law, he has prepared here a very credible alternative to the Government's approach. He has done so despite the fact that no one else has been able to come forward with such a good proposition. I think it is very helpful that he has given the Government the opportunity to explain why their approach is so significantly better than his. I suspect that they might find that quite a difficult task.
My Lords, I warmly support my noble friend Lord Campbell of Alloway in his proposal that we should omit Clauses 9, 10, 11 and 12 from the Bill. They introduce a strange concept of criminal law under the heading of "sample counts". Quite frankly, having studied them closely, I find them vague, ambiguous, unwise and, above all, unnecessary. We have plenty of opportunities within the criminal law of dealing with the kind of cases to which these four clauses would apply.
As to my noble friend's amendment, I respect his motives and I admire the way he has had it drafted but, with deep respect, I am not so sure that it is necessary. This is an unusual Bill altogether. It introduces a number of new concepts of the law. They overlap to some extent with the well established existing law. Above all, I find Clauses 9, 10, 11 and 12 unnecessary.
My Lords, this amendment goes very much with the grain of the development of criminal procedure over the past few years with its emphasis upon case management and the importance of the trial judge taking charge of a particular case and setting out guidelines for the way in which a case is to be conducted. We should be grateful to the noble Lord, Lord Campbell of Alloway, for dealing with the matter with such clarity.
I was very much tempted to follow the noble Lord along the lines that he sets out here but today and in Grand Committee we heard assurances in relation to the limited role of Clauses 9 to 12; that is, that they are not to be used as a roundabout way of limiting trial by jury, that they are not to be used so as simply to cut down the costs of criminal trials, nor are they to be used for the convenience of the court calendar and to save time which might otherwise be expended in a lengthy trial. With the assurances that we have received today, we on these Benches are satisfied that there is merit in the scheme that the Government are putting forward. Although we have not finished with that scheme and will propose further amendments at Third Reading—particularly along the lines that we have discussed today—we commend the noble Lord, Lord Campbell, but I do not think that we can follow him in the detail in which he has set out his proposal.
My Lords, on one point I can enthusiastically agree with the noble Lord, Lord Campbell of Alloway, and that is on the desirability of judicial case management of all cases. As the noble Lord, Lord Thomas of Gresford, said, that is very much the direction in which we are moving and there is more to say about that topic in the future. The new criminal rules committee, which will come into operation as a result of the passing of the Criminal Justice Act, will be an important vehicle for case management of cases by judges.
Although we enthusiastically agree with the noble Lord on that proposition, I must disappoint him completely on the rest of his amendment. The noble Lord, Lord Renton, asked why any of this was necessary. It is necessary for the reasons that I gave before—that the result of the decision in R v Kidd and others is that there are trials which cannot deal with the full criminality of a particular individual because it would be too much to include all the counts. I give one or two examples. A defendant made 60 fraudulent mortgage applications to various building societies of approximately £200,000 each. To have charged all those offences in a single indictment would have overloaded it. It would have been impracticable. Noble Lords might even think that it would have been unmanageable, but we need not worry about that now. On the other hand, sentencing a defendant for just one or two of those offences, when he had committed 60 of them, may be to constrain the judge's sentencing power.
I can give many other examples. We used to deal with the matter before, because we were content with the idea of sample counts. We are no longer content so that has to be dealt with and is necessary. Why can I not follow the noble Lord, Lord Campbell of Alloway? Much of what the noble Lord proposes in subsection (3) regarding directions that can be given by a trial judge can, and are, given by him already. They include directions on severance of counts, provision of particulars, amendment of indictment, questions of admissibility, exchange of experts' reports and so on. But while his amendment identifies that there is a problem, it does not solve the matter because of a contradiction in the amendment.
The noble Lord proposes that the trial judge should have the opportunity of identifying sample counts—in subsection (3)(b)—but then says in subsection (4) that those can have no effect, because the defendant cannot be sentenced for anything of which he has not been convicted. I am sure that it is what my noble friend Lady Scotland meant in Grand Committee when she said it did not deal with Kidd. It does not deal with the problem that Kidd has exposed, which is: how does one find a way of convicting on only a few counts, but ultimately being able to sentence on many? Our solution is to say that the defendant must be convicted on those many counts, but it is unnecessary to go through the full panoply of a jury trial when the sample counts really tell what the criminality is. The strong likelihood is that the defendant will plead guilty to those other accounts, but that will be for him to decide.
I regret that while I agree with the noble Lord on the importance of case management, his substitute clause would not be effective in any way to meet the problem with which the House otherwise agrees that we need to deal. While I thank the noble Lord for his thought, I must reject the amendment.
My Lords, before the noble and learned Lord sits down, in his experience, has he been involved in cases in which there have been many similar counts that have not been mentioned in the indictment, but which I always felt were rightly referred to by the prosecution after conviction? That is certainly within my experience and that of many others who have been involved as prosecution, defence or recorders in criminal cases.
My Lords, the noble Lord was in good company in thinking that they were referred to rightly—until 1998, when the Court of Appeal said that they could not be. That is what the matter is all about.
My Lords, I am grateful to all noble Lords who have spoken, particularly the Attorney-General. With respect, I do not agree with his criticism of the subsection, because it does not affect the sample counts upon which they are tried. It affects what used to be counts that lay on the file. However, this is not the moment for me to pick at construction, because it looks as if my own Front Bench has become rather hooked on some kind of assurance and that the noble Lord, Lord Thomas, whether he is hooked or not, has certainly got wind of that. Therefore, I will not get very far with the amendment. In those circumstances, I thank noble Lords, particularly my noble friend Lord Renton, who stood by me in the wilderness, but I must beg leave to withdraw the amendment.
moved Amendment No. 50:
Page 7, line 39, at end insert "but only when the sample count has, at a preparatory hearing before the trial which led to the conviction for the sample count, been linked in accordance with section 9 to the counts which might be tried without a jury"
My Lords, I have certainly never seen my noble friend Lord Campbell of Alloway as being in a wilderness—if so, it is a crowded place. I shall not speak to Amendment No. 52 in the same group, and will not move it when it is reached in the list.
Amendment No. 50 is based on a Law Commission proposal that toughens up the drafting of new rules on judge-alone trials. At paragraph 7.4 of its Report No. 277 on the effective prosecution of multiple offending, the Law Commission stated:
"The judge would decide the guilt or innocence of the defendant in respect only of offences linked to those upon which the jury has convicted. Those linked offences will have been pre-selected and placed in a schedule attached to the indictment. The schedule would reflect the full extent of alleged offending. The offences in the schedule will be listed, as appropriate, in groups and each group linked with a specified sample count in the indictment".
I believe that that was an appropriate recommendation from the Law Commission and it should be clearly on the face of the Bill. When the Minister responded to me in Grand Committee at col. GC 266 on
The noble Baroness, Lady Scotland, maintained that she did not think it necessary to put that clarity into primary legislation, but it might be appropriate for rules to cover the point. I hear thundering back at me in an argument from the noble and learned Lord the Attorney-General that the new rules committee might be found by the Government to be a solution to my proposal here.
The Law Commission's position should be clearly on the face of the Bill before we go ahead with the considerable changes the Government are introducing in this part of the Bill. I beg to move.
My Lords, that is exactly the answer the noble Baroness is going to get. In our view, Clause 9(8) requires the judge, in making an order under subsection (2), to specify which counts are to be tried without a jury. While it does not require him to specify to which sample counts, if there are more than one, those counts or group of counts related, it is likely that that is what he will do. He will make that clear in the course of the discussion whether it is an appropriate case for there to be sample counts. There will plainly be discussion between prosecuting and defence counsel as to whether certain counts will follow from those samples.
I repeat the answer given in Committee by my noble friend Lady Scotland. We do not consider that there is a need for the provision to be put into primary legislation. If the new rules committee—once the Bill is passed, it could be done by the Crown Court Rules Committee—believes it would be helpful to spell out such matters, we can safely leave it to do so at that time.
I understood that the noble Baroness was not speaking to Amendment No. 52 and would not be moving it, so I said nothing about it either.
My Lords, I am grateful to the noble and learned Lord for at least saying what I thought he was going to say, even though it did not please me terribly. This is one of a group of amendments which refers to how one deals with sample counts. If we had been able to vote in Grand Committee, it is an amendment that might well have been happily disposed of at that stage. However, we could not do so.
There are other amendments to which we may return at another stage and to which I could give my support if I am able to deal satisfactorily with this one. It may well be that if I am not successful with this amendment—I hope that I shall be shortly—I shall then be able to put the full weight of my party behind Amendment No. 46, to which the noble Lord, Lord Thomas of Gresford, spoke earlier. However, I still hope that my amendment will be agreed to and, on that basis, I wish to test the opinion of the House.
My Lords, in moving Amendment No. 50A standing in the name of my noble friend Lady Scotland, I shall speak also to Amendments Nos. 50B, 50C and 50D. These amendments make some improvements to Clause 11. The first amendment deals with a point raised by the noble and learned Lord the Lord Chief Justice.
The purpose of subsection (5) is to provide that where the trial of some counts proceeds without a jury by virtue of an order under Section 9(2), time for appealing against the jury's verdict in respect of the counts which the jury has tried does not run until the end of the non-jury part of the trial.
The difficulty lies with the opening words of the subsection. It states:
"Where the trial of a count is conducted with a jury because of an order under section 9(2)".
Although this is not actually incorrect, it is not a mistake for conducting without a jury, there is no doubt that the present drafting has led to some confusion, which this amendment resolves. For the purposes of an appeal against conviction under Section 18(2) of the Criminal Appeals Act 1968, time runs from the date of conviction—that is, the verdict—not from the date of sentence, if this is later. We do not want to alter that position in Clause 11(5).
In order to give effect to our policy that the proceedings should end where there is a two-stage trial at the date of a conviction or verdict, Amendments Nos. 50B and 50C make clear that the point from which time for an appeal begins to run is the conclusion of the non-jury proceedings excluding sentencing.
Amendment No. 50D is a drafting amendment. The words at the beginning of subsection (6), "Nothing in this Part", are not apt, as the multiple offending clauses do not constitute a part by themselves, and so the amendment substitutes a reference to Clauses 9 to 12. I beg to move.
moved Amendments Nos. 50B to 50D:
Page 8, line 21, leave out "trial ends" and insert "proceedings end"
Page 8, line 21, at end insert —
"(5A) In determining for the purposes of subsection (5) the date on which proceedings end, any part of those proceedings which takes place after the time when matters relating to sentencing begin to be dealt with is to be disregarded."
Page 8, line 22, leave out "Part" and insert "section or section 9, 10 or 12"
On Question, amendments agreed to.
My Lords, in moving Amendment No. 51, I shall also speak to the other amendments standing in my name. The amendments seek to introduce a procedural change to the court process for determining fitness to plead under the Criminal Procedure (Insanity) Act 1964. They provide that the decision on whether a defendant is fit to plead to a charge should be taken by the judge hearing the case and not by a jury.
Amendment No. 55 introduces the change that the decision whether the defendant is fit to be tried is to be taken by the court without a jury. This replaces the requirement in Section 4 of the Criminal Procedure (Insanity) Act 1964 that a jury should take this decision. This was a recommendation made by Lord Justice Auld. It seeks to streamline the somewhat cumbersome process where separate juries must decide whether the defendant is fit to plead, and if not, whether he did the act or made the omission as charged. It does not affect the requirement for a jury to decide the facts of the case, or deprive the defendant of the chance to be acquitted by the jury on the facts.
Amendments Nos. 55A, 55B and 55C tabled in the name of the noble Baroness, Lady Anelay of St Johns, would give the jury the responsibility to determine the question of fitness to plead where the initial decision on fitness to plead has been challenged. The defendant may sometimes disagree with the decision on fitness to plead. However, if a decision as to fitness to plead is difficult, I respectfully suggest to the noble Baroness that the defendant is likely to be best served through a judge making the determination. The judge, who is trained and deals with these cases on a reasonably regular basis, would be better placed than the jury to understand the relevance of possibly conflicting professional opinion. Perhaps more importantly, if there was a dispute, the judge would have to give the reasons for his decision. This would not be the case with a jury finding. This would help the defendant if he wanted to make an appeal to the Court of Appeal, either on the grounds that he should have been found unfit to plead or on the grounds that a finding of unfitness should be overturned. Therefore the defendant would be in a less favourable position if a jury were to determine fitness to plead. The remainder of the amendments in this grouping are consequential, to reflect the change of responsibility for determining fitness to plead.
Amendment No. 51 removes the reference to the finding of unfitness being made by a jury from the multiple offending provisions in the Bill that we have just debated. Amendments Nos. 90 and 109 remove the references from Section 11 of the Jurors Act 1974 to the ballot and swearing of jurors for the purposes of the decision on fitness. Amendments Nos. 91 and 110 remove the reference to the jury's role in unfitness from Section 55 of the Supreme Court Act 1981, relating to the constitution of the Criminal Division of the Court of Appeal. Amendment No. 98 removes the reference to the jury's role in finding unfitness from the process for the Criminal Cases Review Commission to refer to the Court of Appeal in Section 9 of the Criminal Appeals Act 1995. Amendment No. 105 removes the reference to a jury's role in finding unfitness from the provisions in Section 48 of the Criminal Justice Act 2003 regarding trial without a jury.
Lastly, Amendment No. 126 changes the Bill's Long Title to include a reference to the changes in the procedure for finding unfitness, as well as a reference to the new proposed disposals to be available to the court on the finding of unfitness on a verdict of not guilty by reason of insanity. These disposals are the subject of the next grouping. I beg to move.
My Lords, I shall speak to my amendments, which are grouped with government Amendment No. 51. As the Minister pointed out, Amendments Nos. 55A, 55B and 55C are amendments to government Amendment No. 55, and they are all very much probing amendments at this stage.
When I first received the letter from the Government on
I listened carefully to what the Minister said about the Government's reasons for removing the decision from the jury with regard to unfitness to plead and giving it to the judge alone, and I looked at the proposals in the Auld report. My amendments were tabled in order to try to elicit from the Government why they felt it was important to change the current procedure, particularly where there could be a challenge to evidence. The Minister says one of the great advantages of the change would be that—as we have argued before—as well as the competence of the judge, sometimes one also has to consider the competence of the jury, which has to decide whether or not somebody is telling the truth, and has to make judgments on evidence from expert witnesses.
I appreciate what the Minister says, particularly with regard to reasons. That is something I shall consider carefully before Third Reading. As regards other matters in the family court, I am certainly aware of the level of training that there was for volunteers, such as magistrates sitting in the family court, before they felt confident enough to properly carry out the new rules with regard to giving reasons for decisions in family cases. I know that it is a complex matter. Certainly, there could be an advantage to any person involved in a fitness to plead matter if there were reasons. I thank the Minister for her explanation. This matter must be taken seriously.
Perhaps the noble Baroness has not quite taken into consideration one issue that I consider important. The result of this kind of decision still can be a very serious matter. It may be one in which it could be thought that a jury has the right to play a part as a matter of public interest. The result of the decision that someone is unfit to plead can be draconian, in a sense. It could be a hospital order without restriction as to time.
I was interested that in the Auld report on page 217, paragraph 213, the point is made that nowadays the consequences of a finding of unfitness to plead are much more flexible than they were. It points out that they could range from a hospital order with restrictions—in practice, it could be without any restriction as to time—to an absolute discharge. That is true, but one must also remember that there still is the possibility that the person will end up with a hospital order without restriction as to time. That is one reason why there might be justification for retaining the jury's role where there are challenges to evidence.
My purpose was to have my concerns put on the record and to have time to reflect properly between now and Third Reading. By then, I hope that I might have further or any response from those organisations which, at their heart, are concerned to act on behalf of those who might be affected by the Government's changes.
My Lords, we have not heard the justification for this change other than that it appears in the Auld report. As the noble Baroness, Lady Anelay, said a moment ago, the result of the finding of unfitness to plead can result in indefinite detention.
I well recall one of the first trials that I attended in front of Mr Justice Edmund Davies, as he then was. The defendant stood completely mute and was found unfit to plead. Apparently, when taken to the cells he asked the detective in charge of the case, "What does during Her Majesty's pleasure mean?". When he was told, he said, "Get me back in that 'blankety-blank' dock as soon as you can". So he was returned to the dock and found fit to plead. I think that he was later sentenced for the offence for which he stood charge. That was an early experience for me.
What comes from it is the fact that there are very serious consequences from findings of that sort. Traditionally, they have been in the hands of the jury. Where there is an issue, very often it depends on the weighing up of conflicting medical reports, subject to the direction of the judge. So far as I am aware, the system has worked perfectly well. I would be grateful if the Minister could outline exactly what is behind Lord Justice Auld's "reform"—I put that word in quotation marks—and whether it is anything more than a desire to speed things along and tidy things up.
My Lords, I hope that I have made clear the real mischief that this change seeks to cure. It is a very strong traditional view that was expressed, not just by Lord Justice Auld, but by others, that this is a very cumbersome and very complex procedure which is not necessary.
I remind noble Lords, and reassure the noble Lord, Lord Thomas of Gresford, that the jury would still have to find that the defendant did the act with which he was charged before the court could make a hospital order. As noble Lords will also know, there will still be a right to apply to the tribunal if a hospital order is given.
The difficulty that defendants now of course find themselves in is that if a jury makes a decision in relation to fitness to plead, it is not obliged to give any reason for that decision. Therefore, if a defendant does not agree with the decision taken, it is difficult, if not impossible, for them to challenge it with any ease. The advantage will be that the judge will be obliged to give a reasoned judgment as to why he has chosen either to adopt the medical evidence produced before him or her, or to reject that evidence, in a way that makes the decision more transparent. The Government have listened to the exhortations of the judiciary and Lord Justice Auld, who thinks it is meritorious, and we believe therefore that the provisions are sound.
I hear what the noble Baroness, Lady Anelay, says about the importance of juries making decisions in relation to fact and that they bring huge experience to the process. We agree. That is why the jury will retain a very significant role. This relates only to a decision as to unfitness to plead.
Your Lordships will know that, regrettably, medical evidence is now becoming more and more complex and sometimes more and more contentious. Knowing exactly what the decision maker took into account when making a decision becomes of greater interest to everyone.
My Lords, I could not disagree with the noble Lord more profoundly. This is the domestic violence Bill and will remain the domestic violence Bill. It has been longed for for 30 years.
My Lords, I am not disputing that. I support it covering the principles of domestic violence. I am making the point that it covers many different things. The whole of the Attorney-General's speech in reply to the previous debate quite rightly referred to what would happen in fraud cases; we have made common assault an arrestable offence. We are extending the Bill in so many ways that it goes far wider than domestic violence. I merely wonder whether we should face reality and recognise that it goes wider than domestic violence.
My Lords, I hear what the noble Lord says and I understand why he says it. But I invite him to remember that this is the "Domestic Violence, Crime and Victims Bill". The sections about which the noble Lord has made, not his complaint, his comment, are relatively small parts of a Bill to do with domestic violence and victims. I know the noble Lord will recognise that I have acknowledged his concern, but I think the Title is an appropriate one for the Bill.
moved Amendment No. 54A:
After Clause 12, insert the following new clause—
(1) In their application to Northern Ireland, sections 9 to 12 have effect subject to the modifications in Schedule (Modification of sections 9 to 12 for Northern Ireland).
My Lords, we have debated at length the provisions of Clauses 9 to 12 in relation to England and Wales and we have had clear and helpful statements from the Benches opposite as to their support for those clauses, or at least the principle behind them. Government Amendments Nos. 54A, 70A and 90A, the three amendments to which I speak, provide for those measures to be extended to Northern Ireland.
Amendment No. 54A provides for the application of Clauses 9 to 12 to Northern Ireland; Amendment No. 70A inserts a new schedule to the Bill which sets out the necessary modifications to those clauses in relation to their application to Northern Ireland; and Amendment No. 90A is consequential upon Amendments Nos. 54A and 70A, and provides that a person appealing in relation to a hearing under Section 10(1)(b) may be granted legal aid.
Given the degree of discussion and consensus on Clauses 9 to 12 in relation to England and Wales, I hope your Lordships will agree that I need to say no more in moving the amendment. I beg to move.
moved Amendment No. 55:
After Clause 12, insert the following new clause—
"UNFITNESS TO PLEAD: PROCEDURE
(2) In section 4 (finding of unfitness to plead), in subsection (5) (question of fitness to be determined by a jury), for the words from "by a jury" to the end substitute "by the court without a jury".
(3) In subsection (6) of that section, for "A jury" substitute "The court".
(4) In subsection (1) of section 4A (finding that the accused did the act or omission charged against him), for "jury" substitute "court".
(5) For subsection (5) of that section substitute—
"(5) Where the question of disability was determined after arraignment of the accused, the determination under subsection(2) is to be made by the jury by whom he was being tried.""
[Amendments Nos. 55A to 55C, as amendments to Amendment No. 55, not moved.]
On Question, amendment agreed to.
moved Amendment No. 56:
After Clause 12, insert the following new clause—
(1) This section applies where—
(a) a special verdict is returned that the accused is not guilty by reason of insanity; or
(b) findings have been made that the accused is under a disability and that he did the act or made the omission charged against him.
(2) The court shall make in respect of the accused—
(a) a hospital order (with or without a restriction order),
(b) a supervision order, or
(c) an order for his absolute discharge.
(a) the offence to which the special verdict or the findings relate is an offence the sentence for which is fixed by law, and
(b) the court have power to make a hospital order, the court shall make a hospital order with a restriction order (whether or not they would have power to make a restriction order apart from this subsection).
(4) In this section—
"hospital order" has the meaning given in section 37 of the Mental Health Act 1983;
"restriction order" has the meaning given to it by section 41 of that Act;
"supervision order" has the meaning given in Part 1 of Schedule 1A to this Act.
5A ORDERS MADE UNDER OR BY VIRTUE OF SECTION 5
(1) In relation to the making of an order by virtue of subsection (2)(a) of section 5 above, section 37 (hospital orders etc) of the Mental Health Act 1983 ("the 1983 Act") shall have effect as if—
(a) the reference in subsection (1) to a person being convicted before the Crown Court included a reference to the case where section 5 above applies;
(b) the words after "punishable with imprisonment" and before "or is convicted" were omitted; and
(c) for subsections (4) and (5) there were substituted—
"(4) Where an order is made under this section requiring a person to be admitted to a hospital ("a hospital order"), it shall be the duty of the managers of the hospital specified in the order to admit him in accordance with it."
(2) In relation to a case where section 5 above applies but the court have not yet made one of the disposals mentioned in subsection (2) of that section—
(a) section 35 of the 1983 Act (remand to hospital for report on accused's mental condition) shall have effect with the omission of the words after paragraph (b) in subsection (3);
(b) section 36 of that Act (remand of accused person to hospital for treatment) shall have effect with the omission of the words "(other than an offence the sentence for which is fixed by law)" in subsection (2);
(c) references in sections 35 and 36 of that Act to an accused person shall be construed as including a person in whose case this subsection applies; and
(d) section 38 of that Act (interim hospital orders) shall have effect as if—
(i) the reference in subsection (1) to a person being convicted before the Crown Court included a reference to the case where section 5 above applies; and
(ii) the words "(other than an offence the sentence for which is fixed by law)" in that subsection were omitted.
(3) In relation to the making of any order under the 1983 Act by virtue of this Act, references in the 1983 Act to an offender shall be construed as including references to a person in whose case section 5 above applies, and references to an offence shall be construed accordingly.
(a) a person is detained in pursuance of a hospital order which the court had power to make by virtue of section 5(1)(b) above, and
(b) the court also made a restriction order, and that order has not ceased to have effect, the Secretary of State, if satisfied after consultation with the responsible medical officer that the person can properly be tried, may remit the person for trial, either to the court of trial or to a prison.
On the person's arrival at the court or prison, the hospital order and the restriction order shall cease to have effect.
(5) Schedule 1A to this Act (supervision orders) has effect with respect to the making of supervision orders under subsection (2)(b) of section 5 above, and with respect to the revocation and amendment of such orders.
(6) In relation to the making of an order under subsection (2)(c) of section 5 above, section 12(1) of the Powers of Criminal Courts (Sentencing) Act 2000 (absolute and conditional discharge) shall have effect as if—
(a) the reference to a person being convicted by or before a court of such an offence as is there mentioned included a reference to the case where section 5 above applies; and
(b) the reference to the court being of opinion that it is inexpedient to inflict punishment included a reference to it thinking that an order for absolute discharge would be most suitable in all the circumstances of the case."
(2) Before Schedule 2 to the Criminal Procedure (Insanity) Act 1964 (c. 84) insert the Schedule set out in Schedule (Supervision orders) to this Act.
(3) In section 6 of the Criminal Appeal Act 1968 (c. 19) (substitution of finding of insanity or findings of unfitness to plead etc) and in section 14 of that Act (substitution of findings of unfitness to plead etc), for subsections (2) and (3) substitute—
"(2) The Court of Appeal shall make in respect of the accused—
(a) a hospital order (with or without a restriction order),
(b) a supervision order, or
(c) an order for his absolute discharge.
(a) the offence to which the appeal relates is an offence the sentence for which is fixed by law, and
(b) the court have power to make a hospital order, the court shall make a hospital order with a restriction order (whether or not they would have power to make a restriction order apart from this subsection).
(4) In this section—
"hospital order" has the meaning given in section 37 of the Mental Health Act 1983;
"restriction order" has the meaning given to it by section 41 of that Act;
"supervision order" has the meaning given in Part 1 of Schedule 1A to the Criminal Procedure (Insanity) Act 1964 ("the 1964 Act").
(5) Section 5A of the 1964 Act applies in relation to this section as it applies in relation to section 5 of that Act."
(4) Section 14A of the Criminal Appeal Act 1968 (c. 19) (power to order admission to hospital where, on appeal against verdict of not guilty by reason of insanity, Court of Appeal substitutes verdict of acquittal) is repealed.
My Lords, Amendments Nos. 56, 57 and 71 would introduce procedural changes to the court process and powers under the insanity legislation. There is a need to amend the court's procedure to bring the range of disposal options available to the court following a finding of unfitness to plead or not guilty by reason of insanity in line with the options available under the Mental Health Act 1983.
Amendment No. 56 seeks to change the disposals available to the court finding of unfitness to plead or not guilty by reason of insanity reached under the Criminal Procedure (Insanity) Act 1964. Previously, the court could make an order for the defendant's admission to hospital, a supervision and treatment order or an absolute discharge. However, the court did not have to be satisfied that the defendant was mentally disordered before ordering his admission to hospital. Therefore, it was theoretically possible for someone who was not mentally disordered to be detained in hospital.
In addition, the admission order relied on the Secretary of State to issue a warrant ordering the defendant's admission to hospital within two months. This caused practical difficulties if the Secretary of State was not informed of the court's decision in time, as it could lead to the order lapsing and no further detention being possible.
The new options are for the court to make a hospital order, with or without restrictions, under the Mental Health Act 1983 in the same way that it could have done if the defendant had been convicted of an offence; for the court to make a new disposal called a supervision order, which is tabled in Amendment No. 71; or for the court to give an absolute discharge.
Amendment No. 56 would make hospital orders apply in the same way as those under the Mental Health Act 1983, with one exception—that the court will be able to order a hospital to admit a defendant. This is to reflect the fact that the court will not have the option of imposing a prison sentence on a defendant who is found not guilty by reason of insanity or unfit to plead. The application of the 1983 Act means that the court will be able to make a hospital order only if there is evidence that the defendant is mentally disordered.
The new supervision order seeks to provide a disposal to deal with those cases in which the defendant is not mentally disordered—he might be unfit to plead or not guilty by reason of insanity because of some physical disorder such as diabetes or epilepsy—but it is still thought that some intervention is required.
Where the finding is one made on a charge of murder, the court will have to make a restricted hospital order if the conditions as to mental disorder are met. Where they are not, the supervision order is available to provide a structure for whatever treatment is appropriate to address the risk of further harm.
The powers in the Mental Health Act 1983 to remand a defendant to hospital for a report or for treatment and to make an interim hospital order have been extended to cover the situation in which a court is considering which disposal to make following a finding of unfitness or insanity. This power to remand for report or treatment will be useful to the court if, for example, it is unsure whether a hospital order is the correct disposal following a finding of unfitness of a verdict of not guilty by reason of insanity.
Amendment No. 57 would provide a new right of appeal to the Court of Appeal against disposals following a finding of unfitness to plead or not guilty by reason of insanity. Amendment No. 71 would insert a new schedule into the Criminal Procedure (Insanity) Act 1964. It makes provision about the new supervision order which creates a range of powers for the court to dispose of defendants found unfit or insane, but for whom disposals under the Mental Health Act are not justified.
This new supervision order is similar to the existing supervision and treatment order available under the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, which it will replace. However, it is broader in two respects. First, it can include requirements for medical treatment in respect of physical illness rather than simply mental illness. Secondly, it is possible for the order only to provide for the supervision of defendants without including any requirement to submit to medical treatment. It is narrower because it cannot include a requirement for treatment as an inpatient. We think that that strikes the right balance in meeting the needs of the defendant.
Like its predecessor, the supervision order is non- punitive and carries no sanction, there being neither conviction nor evidence justifying medical compulsion. The order enables the court to require the provision of appropriate support and treatment to the defendant to minimise the risk of further harm and provides a means of drawing any problems to the attention of the relevant authorities.
Amendments Nos. 87, 88, 93 and 111 are consequential amendments. Amendments Nos. 93 and 101 also remove the provisions in Section 71 of the Mental Health Act 1983 requiring the Secretary of State to refer to the mental health review tribunal. Similarly, the amendments also remove the interpretation from Section 79 of the 1983 Act of restricted patients detained under the insanity legislation, since the proposed amendments would enable such persons actually to be detained under the relevant provisions.
Amendments Nos. 95 and 112 amend Section 16 of the Prosecution of Offences Act 1985. Amendment No. 103 inserts a reference into Section 133 of the Sexual Offences Act 2003 to include persons detained under the Mental Health Act 1983. All the other amendments are consequential. I have taken a little time to go through them because I anticipate that those who come to look at these provisions may want to know precisely what we had in mind and how they will fit together. I hope that noble Lords will forgive me for being comprehensive, but I hope that I will never have to repeat the information. I beg to move.
moved Amendment No. 57:
After Clause 12, insert the following new clause—
After section 16 of the Criminal Appeal Act 1968 (c. 19) insert—
"Appeal against order made in cases of insanity or unfitness to plead
"16A RIGHT OF APPEAL AGAINST HOSPITAL ORDER ETC.
(1) A person in whose case the Crown Court—
(b) makes a supervision order under section 5 of that Act, may appeal to the Court of Appeal against the order.
(2) An appeal under this section lies only—
(a) with the leave of the Court of Appeal; or
(b) if the judge of the court of trial grants a certificate that the case is fit for appeal.
16B DISPOSAL OF APPEAL UNDER S. 16A
(1) If on an appeal under section 16A of this Act the Court of Appeal consider that the appellant should be dealt with differently from the way in which the court below dealt with him—
(a) they may quash any order which is the subject of the appeal; and
(b) they may make such order, whether by substitution for the original order or by variation of or addition to it, as they think appropriate for the case and as the court below had power to make.
(2) The fact that an appeal is pending against an interim hospital order under the Mental Health Act 1983 shall not affect the power of the court below to renew or terminate the order or deal with the appellant on its termination.
(3) Where the Court of Appeal make an interim hospital order by virtue of this section—
(a) the power of renewing or terminating it and of dealing with the appellant on its termination shall be exercisable by the court below and not by the Court of Appeal; and
(b) the court below shall be treated for the purposes of section 38(7) of the said Act of 1983 (absconding offenders) as the court that made the order.
(4) The fact that an appeal is pending against a supervision order under section 5 of the Criminal Procedure (Insanity) Act 1964 shall not affect the power of the court below to revoke the order, or of a magistrates' court to revoke or amend it.
(5) Where the Court of Appeal make a supervision order by virtue of this section, the power of revoking or amending it shall be exercisable as if the order had been made by the court below.""
On Question, amendment agreed to.
moved Amendment No. 57A:
After Clause 12, insert the following new clause—
(1) In section 58(13) of the Criminal Justice Act 2003 (which defines "applicable time"), for "start of the judge's" substitute "time when the judge starts his".
(2) After section 58(13) of that Act insert—
"(14) The reference in subsection (13) to the time when the judge starts his summing-up to the jury includes the time when the judge would start his summing-up to the jury but for the making of an order under Part 7.""
My Lords, by providing for trials to take place without a jury in the circumstances identified, Clauses 9 to 12 would have an incidental effect on the prosecution appeals provisions in Part 9 of the Criminal Justice Act 2003.
I move swiftly to make this point: it is intended that the prosecution right of appeal under Part 9 should be available in both stages of a two-stage trial provided that the conditions in Part 9 are met. The amendments will allow for those provisions to be modified in order adequately to deal with the particular differences that arise in a two-stage trial. One example of the interaction that we need to clarify is the point up to which the right of appeal is exercisable. Noble Lords will recall that the existing reference, which is before the start of the judge's summing up to the jury, would not be apt when there are two stages in the trial and the second stage does not include the jury.
Amendment No. 57A is an amendment to Schedule 4. It enables the Home Secretary to resolve such points by making modifications to Part 9 by order rather than including complicating modifications on the face of the Bill. In the example that I have given, the problem could be solved by a modification along the same lines as that which Amendment No. 105A would make to Section 58(13) of the Criminal Justice Act 2003. The need for this amendment arises not from Clauses 9 to 12, but from the provisions for non-jury trial in Part 7 of the 2003 Act. The current definition of applicable time in Section 58(13) means that the definition of the point beyond which the prosecution right of appeal cannot be exercised is inappropriate when there is no jury. Alternative provision ought to have been made in last year's Act, but, by an oversight, was not.
The amendment substitutes a formula which does the trick in cases which are conducted without a jury under Part 7. In order to bring Amendment No. 105A within the scope of the Bill, it is necessary—and I say this in the presence of the noble Lord, Lord Carlisle of Bucklow, in anticipating what his comment might be—to insert a reference to its purpose in the Long Title. That is what Amendment No. 127 does. I beg to move.
moved Amendment No. 57B:
After Clause 12, insert the following new clause—
My Lords, the Criminal Justice Act 2003 introduced a new sentence of intermittent custody, which is currently being piloted. The pilot has highlighted two areas in which the legislation creates outcomes that are unintentionally inconsistent between those offenders sentenced to a term of intermittent custody and those serving custody plus. These are technical amendments to address the inconsistencies.
Amendments Nos. 57B, 71A, 100A, 121A and 128 concern offenders sentenced to more than one term of intermittent custody, ordered to be served concurrently, and the definition of the required custodial period under which HDC—home detention curfew—release dates are calculated. Before becoming eligible for release on home detention curfew, an offender must be serving a minimum custodial period of 42 days and must have served a specified portion of the custodial part of the sentence. Prisoners must have served at least half the required custodial days and a minimum of 28 days in custody before release on HDC is possible. I hope that your Lordships are still with me.
Currently the 2003 Act states that for those sentenced to intermittent custody, "the required custodial days" for home detention curfew purposes equals the "aggregate" of the number of custodial days ordered to be served. That has had the unintended effect that, when there are two concurrent intermittent custody sentences, the custodial periods are added together and it is the total that defines the required custodial period. That is inconsistent with custody plus sentences that are to be served concurrently. Here the required custodial period is defined as the actual custodial days to be served and not the aggregate of the number of custodial days.
In order to remedy that inconsistency, Amendments Nos. 57A and 71B provides that, when an offender has been sentenced to concurrent terms of intermittent custody, the required custodial days for home detention curfew purposes is the aggregate of the custodial days less the number of days to be served concurrently. That will have the effect that the required custodial period for those serving concurrent sentences of either intermittent custody or custody plus will be identical. The amendment does not make any changes to the release dates on intermittent custody sentences where there is no early release on home detention curfew.
Amendment No. 71A also concerns the length of the period an offender sentenced to intermittent custody has to spend on licence. Currently, in providing for consecutive sentences of less than 12 months, the Act does not specify clearly the licence arrangements for those sentenced to consecutive terms of intermittent custody. In order to remedy that omission, there needs to be inserted Amendment No. 71A. That amendment will ensure that those sentenced to consecutive terms of intermittent custody will, for the purposes of release and licence, be treated consistently with those serving consecutive sentences of custody plus. That is, the offender will serve a period equal to the aggregate of the custodial period and on completion will then be on licence for a period equal in length to the longest remaining licence period for any one of his sentences.
Your Lordships will remember that when we debated the matter in 2003, we said that the pilots would be extremely useful to identify inconsistencies—and here we are. I beg to move.
My Lords, I am not going to take us back to those happy days of debating Part 12 of that legislation—although I forget which part prosecution appeals ended up being in, as the Bill changed in many respects as it passed through this House.
The Minister has given us a very careful and helpful explanation of why the amendment is required, as a result of the experience of the pilots. I recall having tabled several amendments on intermittent custody, trying to work my way through some of the consequences of the provisions and asking questions around the very issues that the noble Baroness has dealt with today. I shall look carefully at the explanation that she has given. I certainly hope that there will be no need to return to the matter at Third Reading. It will probably take me until then to understand the explanation. The Minister has raised a serious matter: the value of pilots is to ensure that we can have just such a change.
Having said that I agree that changes are sometimes needed, I thought that I ought to wait until now before coming in on a point that my noble friend Lord Carlisle of Bucklow has raised, as I did not want to abuse the rules of Report. My noble friend is right to draw the House's attention to occasions on which the Government repeatedly change the Long Title. The noble Baroness says that this is the Domestic Violence, Crime and Victims Bill—that is absolutely right; I have agreed with her on previous occasions. However, my noble friend is right to draw the House's attention to the continual changing of the nature of the Bill in that, increasingly, outside organisations have said to me, "This appears now to be less of a domestic violence Bill than a general crime Bill".
The serious nature of that is simply that, when practitioners seek to find particular legislation, they will not necessarily direct themselves to this Bill as the source of that information, because it is being referred to in a general sense simply as the Domestic Violence Bill. That is one of the difficulties that arise with this rather small but composite Bill. In that respect, I support my noble friend's continued reminders.
My Lords, I support what my noble friend Lady Anelay has said. This is yet another example of the point that I have made. I am not complaining at all; indeed, as the Minister knows, I welcome Part 1, which deals with domestic violence. But the scope is becoming so wide that, when one is suddenly asked, "Are you going to go on sample cases because of Kidd?", one must say to the judge, "Although the case is on fraud, if your lordship would be good enough to look at the Domestic Violence Act". It makes it more difficult to follow things through when provisions are scattered among different Acts.
Does the amendment that the noble Baroness has just moved mean another amendment to the Long Title? If, as threatened, at a later stage, major changes regarding the whole Criminal Injuries Compensation Board are to be made by means of the Domestic Violence Bill, will that require a further amendment to the Long Title?
On a point of nostalgia, I must confess that I look back with a good deal of happiness on a certain parole review that I once recommended and that was accepted. It was recommended that in sentences of up to four years, an individual spent half of the period in custody and half on parole, with the risk of being recalled if he committed any further offences. Happily, that report was implemented very quickly by the then Home Secretary, but since then we seem to have moved away increasingly. We now get different dates and different times. I yearn slightly for the simplicity of the proposals made at that stage.
My Lords, of course I note what the noble Baroness, Lady Anelay, and the noble Lord, Lord Carlisle of Bucklow, have said, and I take my wigging with good grace.
moved Amendment No. 58:
After Clause 12, insert the following new clause—
(1) The Crown Court Rule Committee shall make rules of court under section 84 of the Supreme Court Act 1981 (c. 54) (power to make rules of court) to make provision for the trial of compound allegations and, in particular, the rules shall provide for—
(a) a definition of "continuous activity" suitable to be tried as a compound allegation;
(b) a procedure for informing the sentencer in the Crown Court of the true extent of the guilt of a defendant who is found guilty by the jury of the compound allegation.
(2) The definition referred to in subsection (1)(a) shall include the same conduct occurring on a series of separate occasions or the same repeated conduct which, looked at in the round, may properly be regarded as one activity.
(3) The procedure referred to in subsection (1)(b) shall provide that the procedure may only be applied—
(a) where the allegation involves two or more similar offences connected by time and place of commission or common purpose (typically, the same act committed against the same victim), so that—
(i) they can fairly be recognised as forming part of the same transaction or criminal enterprise; and
(ii) having regard to the allegations made and the defence put forward that, save for particular marginal issues, it may fairly be said to be an all or nothing case; and
(b) where the case has been identified at a preparatory hearing as appropriate for the use of a compound allegation.
(4) The procedure referred to in subsection (1)(b) shall include provision that—
(a) in order to convict of the count containing the compound allegation, all (or at least 10) of the jury must agree that they are sure that the defendant committed the alleged offences on at least one (the same) occasion;
(b) in order to acquit, all (or at least 10) of the jury must agree that they are less than sure that the defendant committed the alleged offence on any occasion at all;
(c) if the jury is unable to attain the level of agreement either to convict or acquit, then there may be a retrial;
(d) if, but only if, the jury had convicted in accordance with paragraph (a) then the jury must be asked, for sentencing purposes, to clarify the extent of the offending by identifying any occasion or occasions of alleged offending where it is unable, by a sufficient majority, to agree that it is sure of guilt, and any occasion so identified is to be discounted by the judge in measuring the appropriate sentence.
(5) The rules to be made under subsection (1) may also provide for—
(a) directions for the judge to follow at a preparatory hearing under subsection (3)(b), including but not limited to the appropriate scope and form of an indictment for a compound allegation; and
(b) directions for the judge as to the summing up and direction of the jury at the end of a trial of a compound allegation.
(6) The Crown Court Rule Committee shall make rules of court under section 2 of the Indictments Act 1915 (c. 90) (powers of rule committee) and section 84 of the Supreme Court Act 1981 (c. 54) to provide that offences under the Protection of Children Act 1978 (c. 37) may be tried as compound allegations, and for the purpose of this subsection, the Rule Committee may by order amend or repeal provisions of the 1915 Act."
My Lords, I tabled this amendment in Grand Committee on
"consider further the extent to which, if at all, it might be necessary to resort to primary legislation"—Official Report, 2/2/04; col. GC282.
Therefore, in order to get a kind of progress report since then, my questions are as follows. When do the Government expect to conclude those further considerations? Will that be in time for Third Reading on
My Lords, I am happy to respond to those questions. The noble Baroness asked first why the Government have not accepted the recommendation of the Law Commission. She also asked this in Grand Committee in a debate that was short, I think because of the hour. It is right to point out that the Law Commission did not recommend that there should be any legislation. The Law Commission's statement at paragraph 6.9 of its report was not a call for legislation. It was a statement of view that certain offending—it identified the downloading of pornographic material involving children satisfying certain conditions—
"is capable under the present law of being charged by way of a compound allegation".
It was saying that certain offences are already capable of being charged as what it describes as a "compound allegation". It went on to say:
"If it is thought appropriate to crystallise these principles so as to make them clearly applicable to offending other than theft or fraud it may be achieved by a change in the Indictment Rules".
It was not recommending primary legislation. It was saying that such offences can be dealt with under the existing law but that if it is necessary to clarify this, it could be done by means of changes to the indictment rules. We agree that the existing common law permits the charging, in appropriate circumstances, of what may be viewed as a series of individual offences or as a continuous transaction involving several elements.
I turn to the next question asked by the noble Baroness about when the Government expect to conclude their consideration. My belief is that the Government have concluded their consideration and that what I am now saying is the result of that consideration.
The third question—this is the substantive question— was why we need Clauses 9 to 12 in those circumstances. There are different categories of case with which one can be concerned. The Law Commission identified, particularly by reference to a case called Barton, circumstances where one can get into difficulties if one applies the idea of compound allegation to particular kinds of transactions.
I shall give an example, as I tried to do in the earlier debate, of where Clauses 9 to 12 would operate. If somebody had defrauded many different victims in a similar way over a period of time, I doubt that it would be appropriate to charge that as a single count of a continuous activity or a compound allegation, whichever one wants to do. They are individual crimes, committed on different days, on different people. That is a very good example of where the new procedure in Clauses 9 to 12 would be appropriate.
In fact, we are now not so sure that the example of downloading indecent pictures of children is such a good example of where Clauses 9 to 12 would be used. That may well be an example—this is what the Law Commission is saying—of something which is a continuous offence, or possibly, depending upon the period of time over which it took place, of several continuous offences because sometimes it will make sense to divide the period into a number of blocks and to charge a count in relation to each of them.
The Crown Prosecution Service has been consulted in relation to that category of conduct. It sees that it should be possible under the existing law to charge a series of elements of downloading of indecent photographs in a single count rather than charging each image separately. Plainly, no one can bind a particular judge's discretion if he thinks that, in a particular case, that is an appropriate way to proceed. Obviously, I cannot give any guarantees in relation to that.
The fundamental point is that we see, importantly, room not only for circumstances in which it is proper under the existing common law to charge what might be described as a number of elements—but is actually a single continuous activity or a compound allegation—but in which, at the same time, it is necessary to have the provisions in Clauses 9 to 12 so that we can deal with matters which would not properly fall within that sort of concept as individual counts, although without the need to have each individual count tried in front of a jury.
I should add that that is why we would not be in favour of the amendment, because it would necessarily involve—I give this as an example but there are other issues, too—introducing a procedure for special verdicts by a jury. We have not had those for a very long time. It is a quite complicated and cumbersome procedure. It is certainly not something to which the Government think it necessary to resort in order to deal with what is otherwise the Kidd problem which we discussed earlier.
I hope that those explanations are helpful to the noble Baroness. In short, however, we do not consider that the amendment is necessary. Indeed, we would be concerned that it could tie the hands of the judiciary and the rules committee in how they can apply the existing common law. Therefore, I resist the amendment.
My Lords, the noble and learned Lord the Attorney-General has indeed taken the proposal much further forward. He was right to say that it was not debated at any length in Grand Committee. At that stage, in speaking to an earlier group of amendments, the Minister gave me a nod and a wink that she would be saying something that might be helpful—which she did, which was to say that the Government were thinking about it. The noble and learned Lord has said that they have thought about it. And this was the result today. I am grateful.
The basis on which I originally raised the issue was that the Government—in putting forward their proposals in the Bill, and in press releases and interviews before we entered into discussions on the Bill—were using the case of the downloading of multiple images of child pornography as an argument for the necessity for Clauses 9 to 12. It was when I saw the Law Commission's view that in fact it might not be necessary that I thought it was important for the Government's view to be tested.
I certainly am grateful to the noble and learned Lord for his further explanation with regard to the conversations he has had with the CPS, for which he has departmental responsibility, and the view that has been expressed to him that it can cope with the child pornography cases under existing procedures—subject, as he says, of course, to any decision by a judge. Certainly in the light of the explanation that the noble and learned Lord has given today, I am content to withdraw the amendment and not to return to it at another stage. I beg leave to withdraw the amendment.
moved Amendment No. 59:
Page 9, line 5, leave out subsection (1) and insert—
"(1) Victims of criminal conduct shall be entitled to services provided by persons appearing to the Secretary of State to have functions relating to—
(a) victims of criminal conduct, or
(b) any aspect of the criminal justice system.
(2) The Secretary of State must issue a code of practice as to the services to be provided under subsection (1)."
I have tabled these amendments as a result of the briefings that I have received from Victim Support both before Grand Committee and subsequently. The amendments have been redrafted to take account of the responses given in Grand Committee by the Minister to my original amendments.
I am very grateful to Victim Support for its briefing given to me and to other noble Lords throughout the progress of the Bill. It has been invaluable. Victim Support makes the point that the rights of victims of crime are not listed as such in the Bill. The organisation therefore suggested Amendment No. 59 to ensure that there is in the Bill an entitlement to services for those people who are victims of criminal conduct. The services would be provided by those persons who appear to the Secretary of State to carry out functions that cover,
"(a) victims of criminal conduct, or
(b) any aspect of the criminal justice system".
The Secretary of State would be required to,
"issue a code of practice as to the services that should be provided" by these persons or organisations.
Amendment No. 62 provides a definition of "services" to which victims have a right. In Grand Committee the Minister found fault with my drafting at col. 420, in that that amendment did not cover the right to give personal information. That omission has been remedied in my Amendment No. 62.
In July 2003, the Government strategy, A Better Deal for Victims and Witnesses, recognised that the majority of victims have needs outside the criminal justice system. In fact, Victim Support has calculated that only 3 per cent of victims go through the court process. An additional 1 per cent receive criminal injuries compensation. We shall certainly return to that issue in detail on a later occasion when the Government—if they do—introduce their changes in another place. Victim Support argues that everything in the draft code currently is there only for those 4 per cent.
Many victims have other needs such as those relating to health, housing, insurance, financial matters, employment and education issues. The Government have said that they wish to take this further and that they want to improve matters in that area. In this Bill they create the commissioner for victims and witnesses, who is to be responsible for a range of departments beyond those dealing only with criminal justice. Therefore, Victim Support's hope is that in future the victims' code's remit will be extended to those other departments. However, it wants to ensure that everyone knows what kind of services should be involved. Therefore, Amendment No. 62 begins by clarifying that the services provided should be,
"protection, personal support, to receive and provide information and to receive explanation".
Noble Lords will be aware that services such as these are already provided by Victim Support, which is a national standard bearer for quality of services to victims of crime. I beg to move.
My Lords, I hope that I may raise one or two queries about the amendment. Clause 13 as it stands provides that in so far as people, organisations or whatever provide support services to victims of crime, a code of practice issued by the Secretary of State will apply. Clause 15 states that failure to comply does not in itself create any liability, criminal or civil, but is admissible in evidence. In Grand Committee my noble friend the Minister gave examples of industrial tribunal unfair dismissal proceedings where that might be so.
Amendment No. 62 seeks to define "services". That seems to me helpful although I had, as it were, assumed that that was just the kind of thing that was intended. However, Amendment No. 59 purports to create an entitlement of the victim to support services—but I am not sure from whom. How does one pursue that entitlement? How is it enforced? Does it mean an entitlement from one organisation or, if there are several providing services of various but perhaps similar overlapping kinds, does it mean entitlement from each and every one of them?
I apologise to the noble Baroness, Lady Anelay, as she has not yet discussed her amendment, which is also in the name of the noble Lord, Lord Campbell of Alloway, in which she does not intend that the code of practice should itself be more than guidance and should not render anyone liable in criminal or civil proceedings, but elaborates somewhat on how it might be admissible in proceedings, which is not all that different from what the Bill already provides for.
I am puzzled to know, if the amendment were passed and there was an entitlement, how would that be enforced and against whom? Therefore I am doubtful whether the amendment should be accepted.
My Lords, I agree with my noble friend and I shall deal with the second batch of amendments in a moment. We discussed these issues previously in Grand Committee, as the noble Baroness indicated, and I see that the amendment has been revised so that the proposed definition of "service" has been broadened. However, I still feel that the principle of providing a definition could potentially lead to precisely the kind of inflexibility that we are seeking to avoid. When I say "we", I know that the noble Baroness does not wish to provide inflexibility and neither does Victim Support, I understand. There will be far more opportunity to develop new and innovative "services" for victims if we do not provide a narrow definition now.
As to the presentational amendment to make absolutely clear that victims have entitlements to services, we are not convinced that it improves the drafting in any material way, as my noble friend Lord Borrie has made clear. In fact, it might cause confusion as to the status of rights under the code. The intention is that the code should not give rise to rights which are enforceable in the courts. We think it is more appropriate for the code to be policed by the Parliamentary Ombudsman. The amendment suggests that services provided under the code are legal entitlements and would cast doubt on Clause 15, which states explicitly that failure to comply with the code does not give rise to any criminal or civil liability.
I understand why the noble Baroness has phrased her amendments in the way that she does, but we believe that they are unnecessary.
My Lords, I am grateful for those responses which have pulled my amendment apart and contrasted it with my amendment to Clause 15. My purpose, of course, was to try and take further the probing amendments that I tabled in Grand Committee—we have done that. Against that background the noble Lord, Lord Borrie, says this amendment seems to be, or is, in contradiction with my amendment at Clause 15. My difficulty with the Government's drafting is that they have the worst of both worlds. They are not providing victims with an entitlement to services that some organisations believe is right, because the Government are rightly trying to ensure that we do not create an open season in the courts for people to sue if they do not receive a particular service, at a particular time and at a particular level.
I sympathise with the Government for not wanting that, but the difficulty is that they have raised the expectations of victims that services will be provided and those organisations that represent victims are asking: why, if there are to be services, can there not be an entitlement to them? So, I was happy to take the amendment forward on that basis. However, we will debate the amendments to Clause 15 later. There I have real problems—although I agree with what the Government say they are trying to do on Clause 15, I do not believe that their drafting achieves it.
As this amendment was tabled as a consequence of discussions with Victim Support, I will consider carefully with it whether there is anything which can be brought back at Third Reading that the organisation would find helpful. If its advice is that the matter has been taken as far as it can, the issue will not return in this or any other form. At this stage, I beg leave to withdraw the amendment.
My Lords, in moving Amendment No. 63, I shall speak also to Amendments Nos. 64 to 68 and 75 in my name and that of my noble friend Lady Anelay. We are grateful for the support of the noble Lords, Lord McNally and Lord Thomas of Gresford. They refer to the obligation to consult the commissioner for victims and witnesses in any revision of the code of practice. They follow on Amendment No. 62, to which my noble friend Lady Anelay has just spoken and I note the Minister's reply.
Amendment No. 63 would ensure that the new commissioner for victims and witnesses is fully consulted if and when the Secretary of State revised the code of practice. Clause 18(1)(c) places the commissioner under a statutory duty to keep the code of practice under review, yet the Bill does not accord the commissioner a role in the process of revising the code commensurate with his duty to review the code. The amendment would plug the gap.
Clause 18(2) already provides for the commissioner to make ad hoc proposals to the Home Secretary either at the Home Secretary's request or on the commissioner's own initiative. This is very useful as it provides a flexible way for the commissioner to share ideas with the Secretary of State at any time. But Clause 18(2) does not establish or form part of a formal consultation process for revising the code of practice.
If and when the Home Secretary revises the code under Clause 14(8), the Bill provides in Clause 14(2) to (7) for public consultation on the revision. In addition, the Bill gives the Lord Chancellor and the Attorney-General special provenance in the revision process. There is no mention of the commissioner.
If the Bill passes into law as it stands, the commissioner will most probably make representations to the Home Secretary during the public consultation period. However, the revision process would be greatly enhanced if legislation provided that the commissioner had a named role in the process together with the Lord Chancellor and the Attorney-General.
Formally including the commissioner will enhance the process in several ways. Whereas the Attorney-General and the Lord Chancellor have wide remits, the commissioner's remit will be confined to victims and witnesses. The prime function of the Attorney-General and the Lord Chancellor will be to champion the rights of victims and witnesses, but they will also be under a duty to keep the code under review. The commissioner will, it is hoped, have built up a wealth of knowledge in the field of victim and witness policy. Surely, in the course of the acquisition of that knowledge, he will be aware of any deficiencies in the code of practice which need to be rectified or improved.
It seems logical that the commissioner should be formally included in the revision process for those reasons. This amendment would help enable the Home Secretary to make fuller use of the commissioner's expertise and improve the effectiveness of the revision process.
Furthermore, victim and witness policy will not stand still and at some point in the future the code is bound to be revised. The Bill gives the commissioner a remit that reaches beyond the sphere of criminal justice into health, housing and so forth. My noble friend Lady Anelay made that point.
It is quite foreseeable that the commissioner may make proposals under Clause 18(2) touching on these and other policy spheres which fall outside the remit of the Home Secretary. If the Secretary of State wished to pursue such proposals in the interests of victims and witnesses, it is clear that the commissioner will need to be placed at the centre rather than at the periphery of the drafting. This will promote effective joined-up government.
Finally, I want to make a practical point. It will surely be an effective use of public resources to use the commissioner and his staff as much as possible during the drafting and revision process to ease the burden on government departments and to ensure that any amendments are workable in the long run.
I turn to Amendment No. 65. The Bill currently permits the commissioner to make proposals for amending the code of practice to the Secretary of State under Clause 18(2)(a). As the commissioner will be under a duty to review the code, the commissioner's power to make proposals provides the commissioner with some of the necessary means for raising issues arising out of such a review. However, it is suggested that providing the commissioner with the facility to initiate a revision of the code will help to ensure that the code remains effective in ensuring good quality services to victims and witnesses.
In certain circumstances, it may make more sense for the commissioner rather than the Home Secretary to use the knowledge gained under Clause 18(1)(c) to initiate a revision process; for example, if the revisions in the code relate to health or housing. The amendment seeks to provide for such a situation and it aims to introduce greater flexibility and make better use of the resources deployed to the commissioner.
The amendment draws on the Race Relations Act 1976, which enables the Commission for Racial Equality to initiate revisions in its own code of practice. While I acknowledge that the role of the commissioner for victims and witnesses is not entirely analogous with that of the Commission for Racial Equality and other equality commissioners in so far as he will not have commensurate policing or enforcement powers, I suggest that, in the interests of victims and witnesses, statute should afford the commissioner a degree of analogous independence.
Under the amendment, if the commissioner initiates a redraft, he will be required to consult the Home Secretary, the Attorney-General and the Lord Chancellor. A similar process to the one provided by subsections (2) to (7) of Clause 14 would then be set in train. However, importantly, the Secretary of State will retain the power to reject the revised code in the same way as the Home Secretary may reject the codes of practice of the Commission for Racial Equality. In that way, any draft initiated by the commissioner will not only be subjected to the same consultation as one issued by the Home Secretary but will also be subject to the ultimate authority of an elected representative of Cabinet rank before being put to Parliament.
Amendment No. 67, proposed by the Solicitors' Family Law Association, reinforces the points that I have just made covering the line taken by Victim Support; that is, that the role of the commissioner for victims and witnesses must be taken seriously by the Secretary of State. Clause 18 enables the commissioner to put proposals to the Secretary of State to amend the code of practice. He or she can do so either on his or her own initiative or if the Secretary of State asks the commissioner to make proposals to him. It seems strange that there is no requirement in the Bill for the Secretary of State to take account of such proposals or reports, nor to give his reasons if he then rejects any recommendation made by the commissioner. The amendment seeks to remedy that perceived deficiency. I beg to move.
My Lords, your Lordships may recall that at Second Reading I questioned the role of the commissioner and the purpose of having a commissioner at all. I suggested that it might be a smokescreen—that is, to seem to be doing something not very effectively for victims.
I believe that this afternoon's debates have rather underlined that point. When the last amendment, to which my name is attached, was moved, we were told that victims are not to be entitled to services as that would be wrong; nor were those services to be specified. Therefore, the force of Clause 13 is completely disseminated by a lack of a clear purpose—a clear granting of the right to victims.
The commissioner has all kinds of vague functions, such as promoting the interests of victims and witnesses, and they are set in a very broad sense. However, in this amendment the Government may be revisiting the point that he should have the obvious task of playing a part in preparing the code of practice for victims set out in Clause 13. If he has no part in preparing it initially, why does he have a part in reviewing and revising it and making suggestions at a later stage? I commend the amendment because it gives the commissioner something positive to do—something that he can get his teeth into at the very beginning.
I should also say about the commissioner that by Clause 20 he is not allowed to exercise any of his functions in relation to a particular victim or witness. That means that he cannot deal in any way with individual cases. So he has the broadest, vaguest territory to cover without any specific role set out in this legislation. He would immediately have something to do if he, at least, played a part in setting up the code of practice.
My Lords, while supporting my noble friend Lord Bridgeman on the amendment he moved, perhaps I may ask the noble Baroness whether, in replying to the amendments, she can give us some indication of the responsibility to provide treatment for victims. Victims are necessarily people who will have been injured or have suffered in some way. Of course, one hopes and believes that the code will make arrangements for dealing with those injuries and suffering. Will she confirm that?
My Lords, I am happy to deal with all the issues raised by noble Lords. We expect the commissioner to be independent. On victims, the witnesses policy is very unlikely to stand still. We believe it will not stand still. The commissioner will have a very important and persuasive role. His or her specialist knowledge will be influential, but not determinative. Of course responsibility for making decisions which may directly impinge on the allocation of resources will be properly discharged by the ministerial officers and their colleagues along with the Secretaries of State who will be entrusted with that task.
I understand that the amendments spoken to by the noble Viscount, Lord Bridgeman, seek to increase the power of the commissioner for victims and witnesses so that he must be consulted on the code. The amendments also give him the power to produce a draft revision of the code which must be laid before Parliament. If it is not laid before Parliament, the Secretary of State must explain why.
I strongly resist the amendments. It would be inappropriate for the commissioner to have such a large role to play in relation to the code of practice. The commissioner will be able to offer his comments and amendments to the Secretary of State; and his suggestions will be given very serious consideration by the Government.
I must say that the situation we now envisage in respect of the commissioner is very different from that of the Commission for Racial Equality. The comparison with the Commissioner for Racial Equality is not apposite because of course each will have very different roles with very different powers. The CRE has enforcement powers as the noble Viscount, Lord Bridgeman, said. Its codes are generally applicable to the public at large. Therefore, they apply to all employers—in both private and public sectors—who are required to avoid discrimination. It is very different for a commissioner to amend a code like this which will have resource implications for public bodies.
My Lords, I am sorry to interrupt the noble Baroness, but I do so while she is talking about resource implications. There was a suggestion that we were going to have inserted into the Bill at some time the question of compensation for victims. The press have trailed the possibility that the Criminal Injuries Compensation Scheme would bring forward revisions which would result in its costs being halved and the cost of injuries to some victims being thrown upon employers. Will we see that provision in this Bill before we finally leave it?
My Lords, I am happy to repeat what I have said on at least two, if not three, previous occasions. The provisions are out to consultation. It is not envisaged that we will be likely to spend less money than we currently spend on the Criminal Injuries Compensation Board. The consultation, as the noble Lord will know, because I am positive that he will have read it, preserves the majority of the categories. There are now two or three categories that it is suggested may need to be changed. In that consultation document, a broad range of suggestions is put out for consideration as to changes that we may make. The statutory charge is but one of them. All those matters will come back.
What the noble Viscount, Lord Bridgeman, has highlighted is important; namely, that we hope that it will not just be the criminal justice system that will be within the eyesight of the victims commissioner. Noble Lords will know that through the Victims' Advisory Panel we are already working with other departments to look at a number of issues that impinge on victims and witnesses, and other departments' interests. For instance, the noble Lord, Lord Renton, indicated a responsibility to provide health provision and treatment for victims and the arrangements for that. Of course, that treatment is already provided by the National Health Service. Your Lordships will know that in a number of contexts we are looking carefully at what additional help and assistance victims will need. For instance, there is a pilot in Cardiff hospital where the accident and emergency providers are working with Victim Support on domestic violence, to see how they can identify better ways of dealing with victims. All these issues are important. We hope that the commissioner will have much to say about them.
As the noble Viscount, Lord Bridgeman, has mentioned, there are also questions in relation to housing. If we take domestic violence, there are new provisions in respect of what local and other authorities may do to provide housing together with other non-governmental agencies and governmental agencies. All these important issues go across departments and rely on the provision of resources.
We see the role of the commissioner as an extremely important, independent and persuasive role, but it would not be appropriate to recast that role in the way that is currently proposed. I assure noble Lords that in accordance with everything that is proper, full and proper consideration would be given to any recommendation made by the commissioner, because the whole point of creating such a commissioner is that he or she will be able to provide cogent, helpful advice to government on how to better meet the needs and provide services for victims.
My Lords, before the noble Baroness sits down, in a sense this is where we came in on the first day of Report. Will the commissioner have the power to introduce, by regulations or subsidiary legislation, machinery to collect compensation in the way that we discussed on the first day and asked if we could have a recommittal? I am not sure where we are going.
My Lords, the provisions as they currently stand do not include a provision for the commissioner to provide those roles. I am happy to repeat again that the consultation paper is out, and we will consider the response to that consultation. Once we know what decisions are made, we will be able to make any application in relation to the amendment. It is not proposed that any further role for the commission in that regard will currently be included, until and unless we have the outcome of that consultation.
My Lords, I am most grateful for the support of the noble Lord, Lord Thomas of Gresford, and my noble friends Lord Renton and Lord Campbell of Alloway. I am sorry that the Minister feels unable to give the commissioner a further statutory or formal role when his role is already substantially enshrined in the statute. I would like to study the Minister's words carefully and talk to the organisations that briefed us.
On that point, my noble friend Lady Anelay of St Johns mentioned the support that we—on these Benches, certainly—have received from Victim Support and the Solicitors' Family Law Association. I suggest that they might find it useful if the Minister found time to speak to them before Third Reading. In the mean time, I beg leave to withdraw the amendment.
I tabled the amendment in response to our debates in Grand Committee. The Government had tabled an amendment to try to meet in full a request from Victim Support. The only query was whether the drafting of the Government's amendment fully met the needs of victims. There was concern that the drafting of Clause 14(9)(a) could allow a reduction in the quality of service alone, because it refers to,
"a significant reduction in the quality and extent of the services to be provided under the code".
Victim Support asked whether that should instead read "quality or extent". We are all familiar with "and/or" debates, but, on this occasion, it seems to be a significant matter.
I am grateful to the noble Baroness, Lady Scotland of Asthal, who wrote to noble Lords on
I waited a little while, and, when I saw no amendment, I put this one down, to see what would happen. I was gratified to see that the Government acknowledged that there was such a need for further clarification and that the noble Baroness had added her name to the amendment. It is with pleasure, therefore, that I beg to move the amendment.
My Lords, it is with great pleasure that I accept the amendment. I felt like mischievously suggesting that I would resolutely resist the noble Baroness's amendment and press my own. The noble Baroness beat us to the mark—probably by minutes—and I am glad that she did. I have pleasure in agreeing with her that the phrase "quality or extent" makes the position explicit.
As I made clear on the previous occasion, there is no disagreement between us. The amendment will ensure that future revisions of the code of practice cannot reduce either the extent or the quality of the services provided to victims by those with obligations in the code. That is our joint intent, and I am pleased that the noble Baroness's drafting was as immaculate as that of parliamentary counsel.
moved Amendment No. 70:
Page 10, line 24, leave out subsections (1) and (2) and insert—
"(1) The code of practice issued under section 13 is for guidance as to the conduct of services as therein provided.
(2) Failure to comply with such guidance shall not render persons who administer such services liable to criminal or civil proceedings save as provided by subsection (3) but shall be admissible and may be taken into account on determination of any question arising on such proceedings.
(3) On any inquiry or determination concerned with dismissal, suspension or reprimand on grounds of failure to comply with such guidance and on judicial review of any such decisions, the code shall be admissible as evidence."
It is not a particularly good time for me to move the amendment. It is rather technical, and we are at the end of a long day. None the less, the amendment is important.
The title of Clause 15 is "Effect of non-compliance". In fact, it is the trigger clause that gives the quality of legal efficacy to the code. One must be technical about that, because such matters go right up through the courts to the Appellate Committee of your Lordships' House.
The code is introduced in Clause 13(1):
"The Secretary of State must issue a code of practice as to the services to be provided", which relates to "victims of criminal conduct" and so forth.
Clause 15 states:
"If a person fails to perform a duty imposed on him by a code issued under section 13, the failure does not of itself make him liable to criminal or civil proceedings".
The words "not of itself" in a statute are words of limitation and they must be construed as such. As I construe them and, I think, any court would construe them, faced with a negligence action where one of the helpers who was operating the code, probably voluntary, was sued for negligence, this would afford no stop to that.
Clause 15 continues:
"the code is admissible in evidence in criminal or civil proceedings and a court may take into account a failure to comply with the code in determining a question in the proceedings".
At Second Reading, I said that there was a self-contradiction. I did not use that word: I used oxymoron. I said that a self-contradiction is being woven into the fabric of Clause 15, which will create very considerable difficulties.
I must admit that although I know a little bit about codes of practice, I have never come across what I have produced in this amendment. It is a totally novel approach. If it is tight, there is no objection to it. Subsection (1) of Amendment No. 70 states:
"The code of practice . . . is for guidance as to the conduct of services as therein provided".
One should remember that a lot of those services are voluntary, and we live in a highly litigious community. The amendment continues:
"Failure to comply with such guidance shall not render persons who administer such services liable to criminal or civil proceedings save as provided by subsection (3) but shall be admissible and may be taken into account on determination of any question arising on such proceedings".
The amendment proposes a blanket protection from an action of negligence at common law for these people acting in good faith to try to operate the code and somehow slip up. Then the high street solicitor trots along, we get legal aid and off we go. That simply is not on.
I have inserted a special requirement in subsection (3) that,
"On any inquiry or determination concerned with dismissal, suspension or reprimand on grounds of failure to comply with such guidance and on judicial review of any such decisions, the code shall be admissible".
In other words, I am not preventing the workers from facing a charge which would warrant a reprimand, suspension or dismissal.
I do not want to continue for much longer because the question is really quite simple: does the noble Baroness, Lady Scotland of Asthal, accept that, as it is drafted, the trigger clause—Clause 15—is unsatisfactory in that it has words of limitation woven into it? Does she also accept that it fails to protect the workers—the people who render their services—and also fails to protect the victims when those people qualify for reprimand, suspension and so on? That is the essence of the matter. I beg to move.
My Lords, I can be very brief. I am very firm in my support of my noble friend. We are trying to ensure that the Government's clause is drafted in such a way that it delivers the assurances given by the Minister in the letter that she kindly sent to noble Lords after Grand Committee. She was trying to reassure me that legal proceedings would not be undertaken as a result of any breach of the code in circumstances that went beyond a specific number of examples—one might call them "employment breaches".
My original concern had been that, as Clause 15 is currently drafted, one might end up with a case in a criminal court having a verdict found one way or the other because, during the course of the case, someone who was an alleged victim said, "I did not receive the service to which I believe I was entitled in any respect".
My noble friend is trying to redraft the clause so that it more properly meets what we all agree should be the Government's pronounced objective.
My Lords, I hoped that I had made clear on the previous occasion—and, from the comments of the noble Baroness, perhaps I did—the Government's intent in bringing forward Clause 15.
The noble Lord, Lord Campbell of Alloway, asked specifically whether I believe that Clause 15 is drafted in such a way as to make it unsatisfactory in that it has words of limitation woven into it and fails to protect workers and victims when those people qualify for reprimand. The short answer is no, I do not believe it to be unsatisfactory. Neither do I believe it will create the confusion the noble Lord fears.
Let me state, very shortly, why I believe that is so. I understand what the noble Lord's amendment seeks to do. It is crafted so that the circumstances under which the code of practice is admissible as evidence are very restricted. Following our exchanges in Committee, I am grateful for the attempt of the noble Lord, Lord Campbell of Alloway, to clarify the circumstances in which the court code may be admissible. Although I remain unpersuaded that it is necessary to restrict the code in this way, I commend the noble Lord for his efforts.
The amendment contains three subsections. Subsections (1) and (2) do not alter the content of Clause 15, and we feel that they are unnecessary. Subsection (3), however, significantly alters the content of the clause; it would allow the code to be admissible as evidence only in very limited circumstances, in which the proceedings are civil and relate to dismissal, suspension or reprimand on grounds of failure to comply with the code and on judicial review of any such decisions. However, even the judicial review is limited to those very narrow provisions set out in it.
We believe that it is far too limiting, and that the code of practice should be admissible as evidence in civil or criminal proceedings where it is relevant. The main use of the code will undoubtedly be in civil cases, and I do not perceive that it is necessary or even helpful to clarify specific circumstances. There may, inevitably, be circumstances that we would miss if we sought to define them all within this section.
The amendment effectively limits the admissibility of the code to proceedings relating to employment law. However, it is our intention that the code should be admissible in other civil proceedings, such as judicial review of the actions of one of the bodies which provides services under the code. The code will be relevant to determining whether or not a body has acted reasonably under general public law principles or has breached a person's human rights. An example might be where an offender claimed that disclosure of information about him breached his right of privacy under Article 8 of the European convention. The fact that a body had or had not complied with the code would be relevant to deciding whether it had acted proportionately.
It is also important that the code can be used in criminal cases if the need arises, however few those occasions may be. In most cases, Clause 15(2) will have no impact on criminal proceedings. The code will not create new defences or change the shape of the criminal law in any other way. If a defendant wanted to argue, as a defence or in mitigation, that he had committed an offence because he had not received services to which he was entitled under the code, he could do so regardless of whether or not the code was admissible in evidence.
There are other circumstances in which compliance with the code might be of relevance. For example, it could be a factor in determining whether a person has committed a criminal offence under the Data Protection Act 1998. I must therefore resist this amendment, as I prefer to keep a broad definition of proceedings where the code can be used in evidence, in order to cover these exceptional cases.
The noble Lord raised the issue of negligence action. Your Lordships will know that in order to bring a negligence action, the claimant must establish a duty of care. The courts normally impose a duty of care only where it is in the public interest. On the whole, the courts have not found that criminal justice agencies owe a duty of care within the current framework to victims in the type of situations covered by the code. However, if there were a duty of care, it might be that the code should be taken into account in determining whether there is negligence. It does not change things but it may be a tool that the court would want to take into account when making its decision whether someone had or had not complied. We think that that would be proper—it does not, of itself, create new responsibilities or difficulties in a way that would be improper.
My Lords, I thank the noble Baroness, Lady Scotland of Asthal, for the way in which she has dealt with this. It was entirely my fault, inevitably, that she gave a highly technical response to my highly technical opening.
This is a highly technical matter. I am afraid, with deference and much respect, that I do not think that our minds are engaging on this at all. This is not the occasion to try repetition or persuasion. I think that I mentioned that I may have the privilege of meeting the Minister to discuss this matter to see if there is any possibility of making an arrangement that seems sensible to both of us. However, I think not, because she wants to keep the liability very wide and I want to keep it very small for these voluntary people. Therefore, I do not think that it is likely that we can, on this occasion, make much accommodation. Obviously, this is an important matter and I would like to read what has been said and, in any event, deal with the matter with a fairly full House. I beg leave to withdraw the amendment.
moved Amendments Nos. 70A, 71 and 71A:
Before Schedule 1, insert the following new schedule—