| Domestic Violence, Crime and Victims Bill [Lords]
|
|
The Chairman: Order. I need to point out to the hon. Gentleman that we are not discussing the Government amendment. Mr. Grieve: I appreciate that, Mr. Benton, and I apologise. I hope that the Government will accept the Lords' amendment. The Solicitor-General: As the hon. Gentleman says, this is a small amendment. He is trying to draw out issues that he rightly says we need to discuss in relation to the Government amendment and issues that surround the context of clauses 12 to 16, which deal with multiple offending. Perhaps I can assist the hon. Gentleman by explaining that we will resist his amendment on two grounds. First, subsection (6) serves as belt and braces for the provision in subsection (3), which says:
Column Number: 182
We agree that jury trial referred to in clause 12(6) means a trial of all the counts, as it is the inability to hold such a trial that would justify using the two-stage procedure. We are therefore not persuaded that the drafting change in the amendment is necessary. One of the things that subsection (6) could apply is the severing of the indictment and holding two separate trials. Subsection (1) states that the judge must make an order for the trial
Mr. Grieve: The Solicitor-General has not completely persuaded me because there is a difference between the trial of all the counts and the trial of all the matters against the defendant. I highlighted that in my opening remarks when I said that, without this provision, I would normally expect in a criminal trial with multiple counts for the judge to discuss with the prosecution and defence whether it was possible to reduce the counts on the indictment. The classic way of doing that is by saying, ''Some of these counts don't really add anything, as they are very minor matters. He obtained £5, and that is of no consequence, but on the other day, he obtained £15,000.'' That is why I specifically used the expression ''all matters'' not ''all counts''. It must logically follow that if the judge is confined to examining how to have a trial of all the counts, he must have severance; or he must say, ''There are not so many counts that the jury can't handle it, and the jury will be able to handle it''; or he must say, ''We will have a trial of some of the counts and the rest I will deal with on a sample basis.'' I thought that my amendment added something, but the Solicitor-General has partially reassured me on the Government's intention, so I will not press it. I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. The Solicitor-General: I beg to move Government amendment No. 57, in
I am very sorry that the hon. Member for Beaconsfield is filled with gloom and despondency—he need not be. I assure him that we are not talking about a restriction of the right to jury trial, and it is certainly not opening the floodgates. Let me set out for the hon. Gentleman the reasons why we want to amend subsection (9) by removing paragraph (b), which was put into the Bill in another place. The purpose of the two-stage procedure is to replace the old sample count procedure. We are not creating a new procedure. We are regulating a procedure that has been going on since time Column Number: 183 immemorial but that the courts said needed to be sorted out and put on a proper footing. The old sample count procedure was disapproved by the Court of Appeal in the case of Kidd. This is not intended to do any more than provide a proper statutory replacement for the former procedure. If he could live with the former procedure—albeit recognising its shortcomings—he ought to be able to live with this one, because it simply improves on, and give better safeguards for, what used to be the case.A replacement is needed. We cannot leave the situation as it was left by Kidd; I accept that the hon. Gentleman has acknowledged that. Where alleged criminal behaviour consists of activity that is repeated many times against a long series of victims, it is impossible for the number of counts that can reasonably be included in the indictment to represent—or come anywhere near representing—the scale of the alleged criminality. That has two unfortunate results. First, even if the defendant is convicted of all the counts on the indictment, the court may be unable in sentencing him to take account of more than a fraction of his offending. For example, as the hon. Gentleman said, if a scam nets only a small profit each time, the proceeds of the counts of which someone is convicted on the indictment might add up to only a couple of thousand pounds, whereas the total profit realised by the fraud might run into six figures; the Serious Fraud Office feels very strongly about that. In those circumstances, as the indictment would not reflect the totality of the offending, the court would be unable to impose a sentence that bore any relation to the seriousness of the crime. It is common ground that that is unacceptable. There is another issue that gets to the point about the £10 and the £1,000. We have to think about the situation of the victim: in the totality of offending, £10 might be a small amount, but it might be a big thing for the individual victim. The second unfortunate result is that in such a case most of the victims will be denied the satisfaction of knowing that the defendant has been tried and dealt with for the offence committed against them. That is also unacceptable, and it causes a lot of complaint. It is not good enough for the judges and prosecutors just to talk together about the global figure, and to forget that the victims want justice. The public want that, too. I quite understand that the purpose of subsection (9)(b), which was added in another place, is to ensure that the courts adopt a narrow interpretation of what is covered by the two-stage procedure. Our objective is the same. That is why we have the three conditions set out in subsections (3), (4) and (5). I have explained the sort of circumstances in which we expect the two-stage procedure to operate. There is no intention of its being used to deny a jury trial in respect of cases that would now receive one. All we want is to allow cases to go before a court that at present cannot do so, but which were able to pre-Kidd. Nor is there any intention that defendants who have been tried by jury on one count should be tried for other, tenuously related offences by a judge sitting alone. The hon. Gentleman expressed that concern— Column Number: 184 he was obviously thinking about that sort of thin end of the wedge. Let me put his mind at rest. Rule 9 of the indictment rules—I have no doubt that he is familiar with them—will still apply. It provides that in order to be included on one indictment, charges must
11.15 amMr. Heath: I rise to make the rather obvious point that subsection (9) sets out not conditions but a definition. If the Solicitor-General wants a definition, it should be a proper definition. If she does not, subsection (9) could be left out altogether. However, removing paragraph (b) creates an incomplete definition, which is surely unsatisfactory. The Solicitor-General: The distinction between conditions and definitions can be artificial. I want to urge another point on the hon. Member for Beaconsfield. Committee members could identify all sorts of preconditions—we could think ourselves up hill and down dale—but at some stage we have to decide where the balance lies between legislative prescription and judicial discretion. Usually, I err on the side of legislative prescription, but given that the judges will be familiar with the circumstances and with rule 9, and that they will be guided by the conditions defining what sort of cases will get through and be regarded as sample counts, I do not think that we need the belt and braces of (9)(b). Nor is that all: there are other safeguards. Before a judge may order the use of the two-stage procedure, he must decide that jury trial of the whole indictment would be impracticable. We will not even get there unless the decision is made that the jury trial on all the counts of the indictment would be impracticable. That is condition No. 1. Vera Baird: That is reassuring, but I am not sure that it is reassuring enough. To say that the judge has to be satisfied that it is impractical to try all the counts is a very high test. In a case of 200 counts, nobody would have an interest in trying all of them. If one wanted to establish the gravamen of a case with, say, 200 counts of fraud, and some counts were bigger than others, the person in question would not get six months for one count and 199 times six months for the rest. There comes a finite time at which it is not in anybody's interest to go on to the bitter end and keep trying extra offences, which will not add a penny's worth of sentence. It is a very imperfect test that requires the judge to decide that one cannot try all of an indictment, when in reality nobody would think of doing that. A narrower test needs to be considered—this one is too wide.
|
| |
| ©Parliamentary copyright 2004 | Prepared 29 June 2004 |
