Domestic Violence, Crime and Victims Bill [Lords]

---

[back to previous text]

Mr. Heath: Previously, we debated an amendment tabled by my noble Friends in another place and supported by the Conservatives. In this instance, we are debating the replacement of something that was taken out as a response to an amendment by the Conservatives in another place and supported by my noble Friends. I do not think that we differ in our reasoning in this matter.

First, I welcome the application of the law to Northern Ireland. I do not welcome what is being done, but I believe in consistency; if one is determined to be wrong in England and Wales, then one may as well be wrong in Northern Ireland, too. That is a fundamental principle, and I am glad that the Government have finally accepted that.

However, the Government have got things wrong here. I am always slightly concerned when I hear Ministers quoting Lord Justice Auld's report or the Law Commission report, because the Government had no compunction about rejecting so much of what both reports said and then plucking a sentence or two and using the reports as a flag of convenience to justify what they are doing. I take with a pinch of salt the assertion that all that the Government are doing is what is arrived at by consensus, and what is a self-evident truth because it is in the Auld report.

I also have concerns—and the amendments are not the worst example of this by a long way—that one of the Home Office's priorities in recent years has been the chipping away at the role of the lay person in our judicial system. Whenever a lay person is involved, one can be sure that the Government will soon come up with a good reason why they should no longer be involved, and why the job should be left to the professionals, whether that be the judiciary or others. I do not accept that, because it is a cardinal principle of our law that the lay person is an integral part of the procedure. We are discussing a fairly marginal application of that principle, because, as has been said, by and large there will not be a contest about the medical advice proffered to a court. Very often, there is a view as to whether a person is unfit to plead. However, where there is a difference of medical expert opinion, the right tribunal for determining which opinion should be accepted must be the jury, not a judge.

3.30 pm

A judge is not qualified to take a medical view. As the hon. Member for Chesham and Amersham (Mrs. Gillan) said, we may be dealing with incarceration of a person on a decision taken—if the Government have their way—by one judge. That judge will decide which of two equally valid, but differing, medical opinions he chooses to adopt. I prefer that decision to be in the hands of a jury. Our noble Friends in another place

Column Number: 205

were right to support the amendment that removed the provision. The Government are wrong to bring it back at this stage. The advantages are minimal, the potential disbenefit substantial, and I hope that the Government will think again. We will oppose the amendment.

Paul Goggins: Let me begin by responding to the question asked earlier by the hon. Member for North Down about the applicability of the measures to young people. I confirm that they will apply only to the Crown court, so they will apply to young people under the age of 18 who are before the Crown court. However, such persons would be there only if the charge was serious—we do not expect children to appear frequently at the Crown court. I hope that I have given some clarification.

I say to the hon. Members for Chesham and Amersham and for Somerton and Frome that any Government proposal that contains a suggestion of transferring responsibilities and decision making from juries to judges will be challenged and scrutinised. I accept that. It is an important part of our judicial system and we need to protect it. I well understand why people raise such issues. However, I emphasise that we are discussing not trial by jury, but determination of fitness to plead. The case in relation to fitness to plead is a technical and professional judgment that is currently put to the jury. We are suggesting that it be put to the judge.

As I said, the evidence is challenged only in some 10 per cent. of cases. I do not argue that the jury does not have the ability to understand such arguments. I reject any suggestion that ordinary men and women who are members of a jury are not capable of understanding the issues. However, my fellow Home Office Ministers want to make sure that we treat juries as an important and significant resource. Our argument is that we would not be making best use of that precious resource and time by putting them through a technical process that is rarely challenged.

Mrs. Gillan: Let us consider a high-profile case that stirred much emotion among the general public. Does the Minister accept that it would be more difficult to explain the exclusion of the jury from that part of the proceedings? Public interest in high-profile cases will be more satisfied if fitness to plead was dealt with by a jury of the people, not by a judge sitting behind closed doors. The amendments will be perceived outside the Committee as an erosion. The Minister is removing an important part of the process in which reasonable men and women are seen to participate in something that might be of great public interest.

Paul Goggins: I understand the hon. Lady's concern, but we have an important responsibility to educate the public more about the procedures within courts. The jury does not decide off the top of its head whether someone is fit to plead; it makes a decision based on technical and professional evidence that is given to it—evidence that is challenged in only 10 per cent. of cases. Members of the jury do not just make it up; they listen to the technical and professional evidence. We argue that if that evidence were put

Column Number: 206

directly to the judge, jury time could be used better. That benefits the defendant because the judge would have to list reasons for his decision, which would be challengeable in the Court of Appeal.

On the numbers that the hon. Lady requested, the Department for Constitutional Affairs does not keep figures for juries that have been convened to determine was fitness to plead. We do have figures for cases in which a person was found unfit to plead, and I will write to the hon. Lady and other Committee members with those figures. As for her final question, fitness to plead will still be able to be considered at any time until the opening of the defence. We are not changing that procedure at all. We want to change the person or persons who make the decision, not the procedure.

Vera Baird: It is a complete waste of resources if both psychiatrists—sometimes, there are even three or four—agree on a opinion, but the law requires a jury to be sworn in to decide the uncontested issue. Would it not better to alter the law to allow the judge to rubber-stamp on those occasions but to keep juries for the 10 per cent. of cases that are contested?

Paul Goggins: As always, my hon. and learned Friend makes an interesting suggestion, although not one to which the Government feel attracted. We must make a balanced judgment between the evidence that professional people give to the court and the sensible use of the jury's time and the effective use of resources. In drawing that balance, we have decided that in all cases the decision should be transferred.

Mrs. Gillan: I have heard what the Minister has said, but, with other Opposition Members, I remain unsatisfied. For the record, I would like to give notice that when the Committee comes to decide on Government new clause 20, which will be the indicative vote, we will seek to divide the Committee.

Amendment agreed to.

Schedule 1, as amended, agreed to.

Clause 17

Powers of court on finding of insanity or unfitness to plead etc

Paul Goggins: I beg to move amendment No. 102, in page 12, line 17, at end insert—

'(4) Section 5A of the Criminal Procedure (Insanity) Act 1964 (''the 1964 Act'') applies in relation to this section as it applies in relation to section 5 of that Act.

(5) 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 Mental Health Act 1983 (absconding offenders) as the court that made the order.

(6) Where the Court of Appeal make a supervision order by virtue of this section, any power of revoking or amending it shall be exercisable as if the order had been made by the court below.'.

Column Number: 207

The Chairman: With this it will be convenient to discuss the following: Government amendments Nos. 103, 104, 106, 63, 107 to 122, and 105

Government new clause 38—Courts-martial etc.

Government new schedule 1—Unfitness to stand trial and insanity: courts-martial etc.

Paul Goggins: This rather large group of amendments is intended to reflect in court martial proceedings the changes that were made in clauses 17 and 18. It also reflects the change made by new clauses 20 and 21, so that a decision on whether a defendant is fit to plead will be made by the judge advocate alone, rather than by the lay members of the court martial.

The service legislation in this respect is out of date. An attempt to provide an updated framework was made in the Armed Forces Act 1996, but the regulatory framework that it provided for has proved too complex and has never been commenced. It is therefore a matter of some urgency to put appropriate provisions in place.

The effect of the amendments is to allow courts martial to slot into the Mental Health Act 1983 and to make hospital orders on the same terms as civilian courts. That means abandoning the Armed Forces Act 1996 provisions, which envisaged a system allowing courts martial to commit people to hospital in Scotland or Northern Ireland, as well as in England and Wales. It must be emphasised however that, under the new provisions, a person who is admitted to hospital in England and Wales can later be administratively transferred to a hospital elsewhere in the United Kingdom, if that is appropriate in their case.

The amendments also address a problem with service legislation that has only become apparent recently in House of Lords and European Court of Human Rights case law. The Armed Forces Act 1996 envisages that orders admitting people to hospital or non-residential supervision would be made with input from both the judge advocate—who is a civilian judge—and the lay members of the court martial, who are non-legally qualified military officers who serve a function like a jury. That is consistent with the normal court martial sentencing procedure, which allows the lay members to have input into sentencing because of their expert knowledge about the effect of criminal offending on military discipline. However, the case law makes it clear that those orders are to be considered not as criminal in nature, but as mental health matters. Although the court members will still decide on the facts of the case, it is inappropriate to have lay input into the orders themselves. The decision should be made by the judge alone, on the basis of advice from mental health professionals.

In addition, amendments Nos. 102 to 104 make some technical improvements to clause 17. The changes are not related to the court martial system, but simply improve what we have already done for the civilian system.

Column Number: 208

 

---

Prepared 29 June 2004