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Standing Committee E
Tuesday 29 June 2004
(Afternoon)
[Dame Marion Roe in the Chair]
Clause 12
Application by prosecution for certain counts to be tried without a jury
Amendment proposed [this day]: No. 57, in
clause 12, page 8, line 14, leave out from beginning to 'and' in line 15.—[The Solicitor-General.]
2.30 pm
Question again proposed, That the amendment be made.
Mr. David Heath (Somerton and Frome) (LD): Welcome, Dame Marion. At the end of this morning's sitting, the hon. Member for Beaconsfield (Mr. Grieve) was filled with a sense of gloom and despondency at the position that the Government had adopted. I share that feeling. I am disappointed that they want to reverse what was an eminently sensible amendment tabled by my noble Friends in another place.
I am sorry to say to the Solicitor-General that I fail to be swayed by her arguments in support of a reversal. Her first argument was not entirely apposite in that she was comparing the status quo ante with the proposals under the Bill. None of us is questioning that. We accept that there is a need to tidy up the arrangements and to introduce such legislation. That is not the question. Consideration must be given to whether the amendment made in another place inserting subsection (9)(b) adds to our understanding of the Government's intention. My argument is that it does.
I therefore reject the second argument of the Solicitor-General, which is that such a provision at this stage will introduce a further condition on the application of the trial of a sample count. It is not a condition. Conditions under the clause are well set out under subsections (3), (4) and (5) and the judge must be satisfied that they are fulfilled under subsection (2). Subsection (9) comprises a working definition of what is meant by a sample count. It is not entirely satisfactory to say that a sample count is whatever a judge may consider it is. I have great confidence in our judiciary and I do not have any doubt that, in the main, it would interpret such matters entirely as Parliament wishes. If we are to have a definition, it should be reasonably comprehensive. That is why subsection (9)(b) should be in the clause.
When the matter was debated in another place, there was an interesting exchange between my noble Friend Lord Thomas of Gresford and Baroness Scotland of Asthal. My noble Friend asked her to confirm
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''that a sample count is a count where all the other counts of which it is a sample could amount to similar fact, for the purposes of a trial.——[Official Report, House of Lords, 2 February 2004; Vol. 657, c. GC267.]
The Minister gave an odd reply and said that, yes, that was the case, but it was only the case that day, and the next day it might be different. I am not sure that I followed that differentiation, because if the definition of similar fact changed—it has changed on occasion—the definition of sample count would move with that redefinition. It would be sensible to use such a proposition in the Bill.
As for cross-admissibility, what has been inserted seems perfectly sensible. It is interesting that there was no dissent from that on the Government's part in another place. They said that they understood that as the meaning of the clause. They asserted that that was their intention, but said that they did not want to introduce such a provision because it would bring in a new threshold—a new conditionality—to the clause. They also argued that there was a difficulty, because a judge would have to make that assessment early on, before allowing the process to continue, although he or she may not be in a position to do so.
I am not convinced that the argument that has been advanced today is better than that advanced when the matter was debated in the other place. Their Lordships were not convinced—they felt that this provision was sensible. Cross-admissibility determines that we are dealing with similar cases in similar circumstances in a way that narrows the scope of the provision, but not to the point of extinction; it still allows exactly what the Government want to happen, but no more than that, which is a sensible limitation.
To return to my point of departure, I am saddened by the Government's seeking to overturn the Lords amendment. We will oppose the Solicitor-General today, if she moves that course of action, and we will seek to reverse that omission during later stages of the Bill. We have an expectation of success in that reversal, if not in this House, then in another place.
If the Government are determined that this provision should not be included, they had better introduce a similar formulation to the same effect that is acceptable to them. That is the only way that they will have any chance of avoiding a sterile argument on something on which we basically agree.
The Solicitor-General (Ms Harriet Harman): We shall press forward with our amendment. In response to the hon. Members for Somerton and Frome (Mr. Heath) and for Beaconsfield I ask the Committee to consider the following points. Is the judicial discretion too wide, without the Government amendment, in making decisions about what is a sample case? We know that there has to be some judicial discretion, because we cannot foresee every consequence. We all agree that we cannot prescribe for the judges, who will have to consider matters case by case. The question is where the line is drawn. There is enough to make it clear to the judges what Parliament intend a sample count to be. We cannot anticipate all the different
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circumstances, but that does not mean that we have left the judges to their own devices, saying, ''Use your judicial discretion''—far from it.
I should like to draw the Committee's attention to the three conditions set out in subsections (3), (4) and (5).
''The first condition is that the number of counts included in the indictment is likely to mean that a trial by jury involving all of those counts would be impracticable.''
They must get over that test first; it must be impracticable to have all the counts on the same indictment.
''The second condition is that, if an order under subsection (2) were made, each count or group of counts which would accordingly be tried with a jury can be regarded as a sample of counts which could accordingly be tried without a jury.''
It must be impracticable, a sample and
''in the interests of justice''.
Mr. Heath: The Solicitor-General has talked about the second condition, under which those counts to be tried
''can be regarded as a sample of counts''.
Subsection (9) defines what a sample count is. The only qualification that she wishes to include in that definition is paragraph (c):
''the judge considers that the sample count is a sample of the other counts.''
It is stated that a sample count is simply what a judge considers to be a sample count, without any qualification or any suggestion of what Parliament means by that. Is she satisfied with that?
The Solicitor-General: Not entirely, I am afraid. There is a problem with subsection (9), and I will get on to that; however, we do not have the same view as the hon. Gentleman on how to solve it.
We all agree at the outset that there must be judicial discretion; things must be done on a case-by-case basis. However, there are questions about that. Have we got enough reassurance that the judiciary know what Parliament's intention is in laying down the three conditions? First, we have the three conditions. Secondly, there is the protection of article 6 of the European convention on human rights, which states that people must have a fair trial—whatever the judge does, it must be in the context of a fair trial. Thirdly, there is rule 9 of the indictment rules.
The judges are not free: they have the three conditions and article 6, and if they get through those, they have to get through rule 9 of the indictment rules, which states that in order to be included on one indictment, charges must
''be founded on the same facts, or form or are a part of a series of offences of the same or similar character.''
Those are the chalk marks on the ground—not that the judiciary needs them, of course. The measure is clear and narrow enough.
The hon. Members for Beaconsfield and for Somerton and Frome also asked, ''You say that this is superfluous, so why not put it in anyway?'' Our second point has not been addressed by either of the hon. Gentlemen: it is not just superfluous, it is problematic.
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There will be some cases that we would all agree are sample cases with the same defendant, and they would get through everything but they would fall out because there would not be cross-admissibility under the similar fact rule because the element of the probative requirement needed for that would not apply. There would be consequences that the hon. Member for Somerton and Frome does not intend, and that the Government and the Serious Fraud Office would not be happy to live with.
The hon. Gentleman asked whether we are entirely happy with subsection (9). We will have to look at that again. If what I have said is true—which I believe it is—and it is enough to have the three conditions and article 6 and rule 9, why do we need,
''the defendant in respect of each count is the same person''?
That point would not be reached with different defendants. Secondly, why do we need
''the judge considers that the sample count is a sample of the other counts''?
Also, why not add several more measures to that effect on to the end of paragraph (c)?
Hon. Members are worried about the fact that we are plucking out paragraph (b) and leaving paragraphs (a) and (c). I can see that it looks as though we are being inconsistent. We will have a further discussion about why we are doing that. The principal argument is that we have got enough there. At first glance, I cannot see why we need paragraphs (a) and (c). We might have to go for the three conditions, article 6 and rule 9. If that is more clear and straightforward and focuses everybody's mind in a helpful way, it might be satisfactory to hon. Members—or even, dare I say it, to those in another place.
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