New Clause 8

Counter-Terrorism Bill – in a Public Bill Committee at 2:45 pm on 15th May 2008.

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Plea negotiation

‘(1) The Secretary of State must, within 12 months of the passing of this Act, make regulations which make provision for the use of plea negotiation for defendants charged with terrorism offences or offences with a terrorist connection.

(2) Regulations made under subsection (1) may provide for the circumstances in which defendants can mitigate their sentence by pleading guilty at trial.

(3) The Secretary of State may before making regulations under subsection (1), consult such organisation as she considers appropriate.’.—[Mr. Hogg.]

Brought up, and read the First time.

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

I beg to move, That the clause be read a Second time.

I rather regret that my hon. Friend the Member for Newark is not here, because this was very much his new clause. I have not discussed new clause 8 with him, so I do not entirely know what was in his mind, and these are rather more my observations than they are his.

Subsection (2) is of course in accordance with judge-made law as it is, namely that defendants who plead guilty at the earliest possible opportunity can achieve a discount in their sentence. In my view, that is wholly right. The maximum is about one third for the earliest possible indication of a plea of guilty. I think that that is right and should apply to terrorist offences as to any other.

Subsection (1) could apply not just to a terrorism Bill, but to any criminal justice Bill, because there is considerable merit in allowing pre-trial plea bargaining. As a matter of fact, pre-trial plea bargaining has existed for a very long time and still exists—and a very good thing too. There is very frequently discussion between defence and prosecution counsel as to what plea might be acceptable. Very often, too, one can go to the judge and gain an indication as to what would be the appropriate sentence on the basis of an agreed set of facts.

There probably is merit in some statutory or quasi-statutory framework, and there are one or two things that have to be provided for within such a framework. First, there must be some provision whereby a defendant’s interests cannot be prejudiced. I have known of a number of cases where defendants have been advised of the desirability of pleading guilty, have indicated a willingness to do so, and then start ratting on the deal. Everybody is rather shafted by that process, so one does have to address it so that the defendant is not misled and, incidentally, other people are not prejudiced by the defendant subsequently ratting.

It is also very important to ensure that there is an agreed basis for the plea, and the process has to be worked out. If necessary, there may have to be what is referred to as a Newton trial or a Newton process to determine the basic facts. That needs to be provided for in the regulations, as does a process whereby the judge is brought into the discussion so that he can give a fairly binding indication of what the appropriate sentence would be. Those matters all have to be addressed by the regulations, and other criteria too may need to be incorporated, but that there should be a process of pre-trial plea bargaining seems quite plain. I see no reason why it should be confined to terrorism, and it is probably a good thing to give it a quasi-statutory basis, and I commend the motion to the Committee.

Photo of Tony McNulty Tony McNulty Minister of State (Security, Counter-terrorism, Crime and Policing), Home Office

I, too, am rather disappointed that the hon. Member for Newark is not here because I know that this is a subject that exercises him. There may be some merit in exploring it further, but not in the context of this new clause. As the right hon. and learned Member for Sleaford and North Hykeham has said, either it rather lamely describes what already prevails, in circumstances such as R v. Goodyear, or—I am not sure whether this is in the mind of the hon. Member for Newark—if it aims to allow prosecutors to accept a plea on a lesser charge than is justified by the alleged offending, the new clause is objectionable in principle. If he is trying to go for the full-on American-type system, as I described earlier, we object to it in principle.

The right hon. and learned Gentleman will know that we are looking closely at the results of a plea negotiation framework for fraud cases, which is quite separate from this Bill. If that comes up with any ideas in the area of plea negotiation that we think will be useful in combating terrorism, we will take them forward. He quite reasonably says that there is already a plea negotiation process in our due process and I am not sure how much beyond that the hon. Gentleman was seeking to go.

I will explore the idea further, taking into consideration the framework for fraud cases. I do not know whether I will be able to say anything further on the matter on Report, but it may well be in the Committee’s interests for the motion to be withdrawn. Perhaps the hon. Gentleman will be allowed to enlighten us on Report. I have some sympathy with the thrust of the new clause, but I do not agree with the intent as it has been perceived in the hon. Gentleman’s absence. I ask that the motion be withdrawn.

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

I shall withdraw the motion and I hope that my hon. Friend the Member for Newark will have an opportunity on Report to deal with the matter. I will, however, make two brief comments. First, I do not dismiss as rapidly as the Minister the proposition that one should be able to accept a plea for an offence less than that which the evidence discloses. There is sometimes merit in accepting pleas for lesser offences. Never forget that by doing so one is sparing witnesses the trauma of giving evidence and saving a huge amount of money. It is sometimes pretty artificial whether a person is charged with A or B. There is a discretion and sometimes there is merit in not charging for the maximum offence. I hope that the Minister will not be quite so dismissive of that proposition.

Secondly and differently, while I welcome the fact that plea bargaining considerations are taking place in the context of fraud cases, I hope that the Minister will not turn his face from widening the scope of any changes that are brought forward to include offences other than fraud. Truth to say, while fraud is a recognisable category, the issues revolving around fraud, other than the evidential problems, are not in any sense sui generis. I would have thought that if one was going to approve a process for plea bargaining in relation to fraud cases, it is very difficult to see why it should not be extended across the spectrum of criminal law. I hope that he will take a rather more flexible approach than his intervention indicated. Subject to those two observations, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.