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Lord Falconer of Thoroton moved Amendments Nos. 199 to 205:

Page 32, line 18, at end insert ("or a subsequent").
Page 32, line 22, after ("shall") insert ("where it is the same occasion, and may where it is a subsequent occasion,").
Page 32, line 23, at end insert--
("( ) Where a court sends an adult for trial under subsection (2) above, it shall at the same time send him to the Crown Court for trial for any either-way or summary offence with which he is charged which fulfils the requisite conditions.").
Page 32, line 28, after ("same") insert ("or a subsequent").
Page 32, line 30, leave out ("may") and insert ("shall, if it considers it necessary in the interests of justice to do so,").
Page 32, line 32, leave out from second ("a") to end of line 38 and insert ("child or young person for trial under subsection (3) above, it may at the same time send him to the Crown Court for trial for any either-way or summary offence with which he is charged which fulfils the requisite conditions.").
Page 33, line 11, at end insert--
("(8A) An offence fulfils the requisite conditions if--
(a) it appears to the court to be related to the indictable-only offence; and
(b) in the case of a summary offence, it is punishable with imprisonment or involves obligatory or discretionary disqualification from driving.").

The noble and learned Lord said: I beg to move Amendments Nos. 199 to 205 en bloc.

On Question, amendments agreed to.

24 Feb 1998 : Column 553

Clause 42, as amended, agreed to.

Clause 43 [Provisions supplementing section 42]:

Lord Thomas of Gresford moved Amendment No. 206:

Page 34, line 3, at end insert--
("( ) Unless the accused consents, a magistrates' court shall adjourn proceedings under section 42 if those proceedings are the first hearing at which the court has decided not to grant bail").

The noble Lord said: I beg to move Amendment No. 206. The new Clause 42 will make a very substantial change to the traditional way in which indictable offences are committed to the Crown Court. The purpose of the amendment is simply to retain the present protections in the magistrates' court for persons who seek bail. At the moment it is possible for a person who goes to the magistrates' court to make an application at the first hearing for bail and, if that is refused, to make a subsequent application on change of circumstances. If that second application fails it is possible for the defendant to go to the Crown Court and apply for bail. All that this rather simple amendment seeks to do is to maintain the right of the defendant to make successive applications for bail in the magistrates' court before he has to go to the Crown Court for that purpose.

Lord Falconer of Thoroton: I understand the effect of the noble Lord's amendment. It is inspired by the Law Society's concern to ensure that offenders facing indictable-only charges do not lose the opportunity to make a full bail application at a second hearing before the magistrates' court.

Although the intention is that indictable-only cases should be sent straight from the magistrates' court to the Crown Court, there is no risk of a defendant being held in custody for longer than at present. If a defendant is refused bail at the preliminary hearing before the magistrates' court, it will be open to him to apply to a Crown Court judge for bail. Although cases are, in any event, expected to appear in the Crown Court within eight days of the preliminary hearing, a defendant need not wait for that Crown Court hearing before applying but can do so immediately.

Under the new proposal a defendant can apply for bail when he first comes up in front of the magistrates' court. If he is refused bail at that stage, he can either wait until the matter next appears at the Crown Court--which would probably be within eight days--or, if he wishes, he can make an immediate application to the Crown Court for bail upon refusal by the magistrates' court. So he will get his two shots within reasonably quick time, which is the present position. The defendant is not in any way prejudiced by these provisions in so far as bail is concerned.

In the light of what I have said, I trust that the noble Lord will withdraw his amendment.

Lord Thomas of Gresford: I am most grateful to the noble and learned Lord. I share the view expressed by the noble Baroness, Lady Anelay of St. Johns, that at the moment insufficient thought has been given to the

24 Feb 1998 : Column 554

pressure that will exist on the Crown Court. Not only must it deal with the raw material of committal for trial--which to some degree is sorted out at magistrates' court level--but now it will also have to deal with bail applications. In the past that would not have been the case.

I urge the Minister to take that on board and give it some further thought, but I do not wish to press the amendment at this stage.

Amendment, by leave, withdrawn.

Lord Thomas of Gresford moved Amendment No. 207:

Page 34, line 8, at end insert--
("( ) A person may be represented at any pre-trial hearing before the Crown Court, including a hearing at which an application provided for in paragraph 2(1) of Schedule 2 to this Act is made, by an authorised advocate or authorised litigator as defined by section 119(1) of the Courts and Legal Services Act 1990.").

The noble Lord said: This is an amendment to allow a solicitor who has not attained the higher rights of audience to represent an accused at a pre-trial hearing in the Crown Court.

I go back to the dim and distant past when I was a solicitor engaged in submitting no case to answer in the magistrates' court. I recall that that procedure was one way in which a defendant could very quickly be relieved of the pressure and worry of a charge which was not well founded. That was a function normally performed by solicitors without too much difficulty.

It is a function which the amendment suggests should continue in the Crown Court at the pre-trial stage if it is quite obvious that the papers which have been served upon a defendant do not support the case against him. He should then be released as soon as possible and have the charges dismissed. To do that the solicitor who has control of his case should have the right of hearing in the Crown Court. I beg to move.

Lord Ackner: As I understand it, the amendment would allow any solicitor to represent an accused at a pre-trial hearing at a Crown Court even though he or she had not obtained a higher right of audience.

At present only barristers and those solicitors who have passed the Law Society's tests to gain higher rights of audience may appear in the Crown Court at such a hearing. My concern is that this apparently modest little amendment seeks to bypass the statutory route for granting rights of audience.

In 1989 the Lord Chancellor produced Green Papers designed to reorganise, among other things, rights of audience. Initially he intended that he and he alone should issue advocacy licences. It was pretty firmly pointed out by the judiciary that they, the judges, had a considerable interest in who had rights of audience. As a result a fairly complex procedure was built up under which the Lord Chancellor's Advisory Committee--the majority of whom were laymen, but naturally the Bar and the solicitors were represented--would receive an application from the professional body wishing to extend the rights of audience. It would then make inquiries and then make a report saying whether or not

24 Feb 1998 : Column 555

it agreed. The report then went to the Lord Chancellor, who expressed his own view, and it then finally went to the designated judges--the Lord Chief Justice, the Master of the Rolls, the President of the Family Division and the Vice-Chancellor. If any one of them disagreed with the new proposal, that was the end of it, so sensitive was the accepted position in regard to altering the rights of audience.

The Act provides in Section 27:

    "The question whether a person has a right of audience before a court, or in relation to any proceedings, shall be determined solely in accordance with the provisions of this Part".

The Act provides, in terms, that the philosophy behind the approach to extending rights of audience is that provision should be made for better ways of providing legal services with a wider choice of persons providing them, while maintaining the proper and efficient administration of justice. The procedure recognises the importance of ensuring that only people with suitable qualifications and experience are able to appear before the court, which is particularly important in criminal cases.

I accept that the Schedule 4 procedure may be in need of some reform, but it has provided for proper debate and scrutiny on the suitability of people to exercise rights of audience in a number of cases over the past five years. Its function is to consult widely and then issue a decision for consideration by the Lord Chancellor and the designated judges. It would be wrong to adopt an ad hoc approach to particular areas of the system because that could lead to undesirable inconsistencies. This is a case where the statutory procedure, until altered by statute, should be adhered to.

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