Clause 12 - Application by prosecution for certain counts to be tried without a jury

Part of Domestic Violence, Crime and Victims Bill [Lords] – in a Public Bill Committee at 3:00 pm on 29 June 2004.

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Photo of Harriet Harman Harriet Harman Solicitor General (Law Officers), Member, Labour Party National Executive Committee 3:00, 29 June 2004

It might assist the Committee if during this stand part debate I deal with clauses 13 to 16, which relate to the procedures underlying clause 12. If you feel that that is not helpful, Dame Marion, you could cut in and say that you had heard quite enough. In that way, we might not need stand part debates on the other clauses. Looking into the procedure and the substance of the clauses might be helpful, so I shall address matters in that way.

My hon. and learned Friend the Member for Redcar (Vera Baird) has made her case forcefully. I am sure that everyone on the Committee, including you, Dame Marion, thinks that she would make a jolly good Solicitor-General. However, on this occasion I disagree with her. She says that the measure is an assault on jury trial, but she agrees that no cases will be tried under the second stage of the two-part procedure—that is, by a judge on his own—that would have been tried by a jury in the pre-Kidd days. To that extent, there is no reduction in jury trial; therefore the measure is not an assault on jury trial. It simply regulates the situation that pertained before the Kidd decision in the Court of Appeal.

My hon. and learned Friend's second point was whether one could not simply have ''enough'' counts on the indictment. I have a problem with that; one should have the full extent of the offending on the indictment. I am a bit uncomfortable about slicing through the indictment and leaving the other offending to one side. I know what she means when she says that sentencing is not cumulative—the sentence does not go up in exact proportion to the sum involved. Otherwise, people would be convicted and sentenced to hundreds of years. I take the point that there is no mathematical accumulator, but it is important and right that the court has before it the full extent of the offending and that is on the indictment.

My hon. and learned Friend's argument about doing enough for sentencing does not take account of the fact that we need to know the full extent of the criminality on the indictment; nor does it take into account the question of the multiple victims in the cases. Each of the counts will represent a separate victim. In continuous offences that are tried by sample, there is only one victim, but a whole load of victims would just be pushed out of the picture by what my hon. and learned Friend suggests.

My hon. and learned Friend said that people will soon say, ''Let's not have juries any more. Let's just have trial by judge alone.'' She knows as well as I do that people say that all the time; it is an ongoing argument. That does not help us decide whether this is the right procedure. What somebody might argue in future is not a good argument for not supporting this clause.

As hon. Members have said, the provisions have their provenance in a Law Commission report that considered the problems that arise in cases in which the offending conduct of the defendant is repeated so many times that there are too many individual offences to be accommodated in a single jury trial. The report and its recommendations address a specific situation that is widely acknowledged to be highly unsatisfactory. In the past, such cases could be dealt with by means of a specimen count to ensure that the trial will be manageable for a jury. Upon conviction, the judge would sentence on the basis that the counts upon which the defendant had been found guilty were samples of the much larger number of offences committed. The defendant would thus be sentenced to a term commensurate with the totality of the offending. The 1998 Court of Appeal decision in Kidd and others precluded such an approach: the Court ruled that the practice of sentencing on the basis of specimen counts was inconsistent with the principle that a defendant should be sentenced for offences that have been proved by verdict, or to which he has pleaded guilty, or which he has agreed to have taken into consideration. The problem with specimen counts, therefore, was that the defendant was sentenced on the basis of offences to which he had not pleaded guilty or which had not been proved guilty by verdict.

That decision, although correct in principle, has given rise to a serious problem in certain cases of multiple offending. In those cases, the consequences of the impracticality of prosecuting the full extent of offending and the prohibition on specimen counts are that the vast majority of such offending is not prosecuted. The offender thus escapes appropriate sanction. That is a serious failing in the system. Defendants should not escape just punishment because court procedures cannot accommodate the volume of their offending. The court needs to have before it the full extent of the offending.

The Law Commission's recommendation for a two-stage trial procedure in the Crown Court seeks to address those problems. The scheme is aimed at allegations of multiple offending that do not fall into the category of a continuous offence—generally

because they are committed against a series of victims rather than only one and involve repeated similar offending. In terms of type of offence, we expect the scheme to operate chiefly in the areas of theft and fraud, in which the total sum is relevant to the sentence. At present, a person whose offending involves the commission of hundreds of offences, each involving a small amount, perhaps, but the overall gain of which might be considerable, cannot be sentenced to a term that reflects the true extent of their offending. That cannot be right. Confiscation of proceeds questions must also be taken into account.

The outline of the procedure is dealt with in subsequent clauses. The key elements of the procedure are as follows. The prosecution makes an application for the two-stage trial procedure to be invoked. The application is considered by the trial judge at a preparatory hearing. In the event of a successful application, an indictment is drawn up containing charges chosen to show samples of the offending. A series of linked offences, reflecting the full extent of the alleged offending, is placed in a schedule attached to the indictment.

The first stage of the trial is a conventional jury trial on the sample counts contained in the indictment. The second stage takes place only in the event of a guilty verdict on one or more of the counts tried before the jury. The judge alone decides on the guilt or innocence of the defendant in respect only of offences linked to those upon which the jury has convicted. The judge is not bound by the conviction of the jury at stage one but is free to come to his or her own view of the evidence. In the event that the jury has acquitted on a sample count, there is a presumption in favour of a directed acquittal on the linked counts. The defence has a right of appeal against an order for a two-stage trial, and the judge is required to give a reasoned verdict at the end of the second stage in the event of a conviction.

The two-stage procedure will have a number of benefits. It will preserve jury trial in respect of the core examples of the defendant's criminality. It will ensure that the jury trial is manageable and comprehensible. It will be likely to encourage guilty defendants, either on an initial arraignment or after conviction of a number of sample offences, to plead guilty to or to admit any linked offences of which they are also guilty. It will give the defendant a fair hearing, with the opportunity to present a defence in relation to any or all of the alleged offences. It will ensure that defendants will not be able to take advantage of the practical limits of trial by jury so as to go unpunished for a significant part of their offending. It will allow the court to sentence the defendant for the full extent of his or her offending while safeguarding a fundamental requirement of justice: that the defendant is sentenced only for offences that have been proved to a court after a trial, or to which they have admitted.

The two-stage procedure will also allow full expression of each of two fundamental requirements of justice: first, that a defendant should be sentenced

only for offences that are admitted or of which the defendant has been convicted after having had the opportunity to challenge the evidence; secondly, that defendants should be tried and sentenced for the full extent of their criminality. I would add a third requirement: that justice be done in respect of each person who is a victim of that criminality. The defendant will be given a fair hearing, with an opportunity to present a defence in relation to any or all of the alleged offences. The procedures thus safeguard the interests of the defendant by ensuring that the sentence will reflect that conduct which the prosecution has proved to the jury and, thereafter, to the judge.

I understand colleagues sense that when things are separated out like this, in the manner that the Law Commission has proposed, it looks uncomfortably as though the second counts will somehow be second-class justice, but that is not what will happen. That is not what happened pre-Kidd. Our proposal is an improvement on the pre-Kidd procedure. There will be sufficient safeguards, transparency in practice, rights of appeal and judicial discretion. Clauses 12 to 16 should stand part of the Bill.

Question put and agreed to.

Clause 12, as amended, ordered to stand part of the Bill.

Clauses 13 to 16 ordered to stand part of the Bill.