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Lord Cope of Berkeley: I now understand. The point that the noble Lord was seeking to make was with regard to multiple proceedings affecting different people. I do not see that that alters the considerations as to whether damages are special enough to be given a special position under new subsection (4A) by comparison with other remedies. It is just as important that someone in the unconnected case which has been completed should be able to get any kind of remedy--not only damages but any kind of remedy which might otherwise have been available--assuming that it will not prejudice some of those in the multiple case.

The point of the amendment is to ask why damages are special. I am not trying to deny someone having a remedy. It is the stay which will delay the remedy. Certainly, we do not want to prejudice other cases or investigations or have other cases or investigations prejudiced. But I still do not see why damages are so special in this respect that they should be singled out as permissible in new subsection (4A) when nothing else is and when, by definition, if they are awarded, they will be prejudicial as it were.

The Minister does not seem inclined to speak again, but he said earlier that he would consider the matter further. In view of that, I do not think that noble Lords would wish to make a final decision, even on Amendment No. 20, which deals with the lesser of the two points involved. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lester of Herne Hill moved Amendment No. 21:

The noble Lord said: This is a continuing dialogue on another version of the same problem. New Section 57(4D) states:

    "Where the decision to institute criminal proceedings has been made or the criminal proceedings have been instituted, the court shall grant a stay or [in Scotland] sist of the proceedings ... unless it is satisfied that the continuance of those proceedings would not prejudice any criminal investigation and would be unlikely to affect any issue which might arise in the criminal proceedings".

One has there a very broad prophylactic power, where criminal proceedings have been commenced, for the court to be able to grant that protective order.

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However, new subsection (4E) at the moment deals with the opposite--where no decision to institute criminal proceedings has been made. It states that,

    "the court shall not grant a stay ... unless it is satisfied that the continuance of those proceedings would be contrary to the public interest or might prejudice any criminal investigation, the decision about instituting criminal proceedings or any subsequent criminal proceedings".

I am not aware that I have ever seen anything quite like that in any other statute. I do not understand why the provision is necessary. This is exactly the kind of situation where common law discretionary powers in the courts could deal with some unforeseen problem. The danger of the provision as it stands is that it deals with cases where criminal proceedings are not instituted. Therefore, it deals with cases where new subsection (4D) is not necessary. We do not understand why new subsection (4E) is then included. It seems to us that new subsections (4A) and (4B) between them enable the courts to make quite sure that any remedy granted will not prejudice a prosecution. In other words, they give adequate powers to secure a fair balance between the rights of the accused in criminal proceedings and the rights of the victims in civil proceedings. This is therefore a probing amendment to try to understand why the Government think that what seems like a fairly extraordinary provision is necessary. I beg to move.

Lord Goldsmith: I do not know the answer to the question posed by the noble Lord. I look forward to hearing it myself. One of the difficulties may be that the new subsection (4D) contains an important power. I believe that noble Lords agree with that. Perhaps one needs to spell out why it is important. The potential prejudice to criminal investigation may be, for example, that people who are defendants in such criminal proceedings find that in civil proceedings they are required to undermine or prejudice their defence by giving evidence or giving explanations. There are all kinds of examples of that. I do not understand there to be any doubt that the new subsection (4D) is an important prophylactic power, as the noble Lord has said.

Some noble Lords may have been concerned that in the absence of something along the lines of the new subsection (4E), the court may take the view that it now has power to stay in circumstances which do not fall within (4D). I have much sympathy with the point made by the noble Lord, that the common law would normally provide such a power. However, I understand the concern, where specific powers are given in one circumstance, that it may be thought that, unless the position is spelt out that the court has discretion in the other circumstances, it may believe that it does not. That is the only suggestion that I can offer on this matter. If that is why it is there, in substance it may be a good thing to include it.

Lord Cope of Berkeley: There is a sense in which these two new subsections--(4D) and (4E)--are in the wrong order. The situation in which there is no decision to institute criminal proceedings for the time

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being is likely to arise before criminal proceedings are instituted as opposed to afterwards. I do not argue that the drafting should be altered in that respect.

I believe that there is the difficulty of possible prejudice to continuing investigation before a decision to prosecute has been taken one way or the other. Therefore, in law there has to be something like new subsection (4E). As to whether that needs to be specified in the Bill, or whether it is covered by common law is a matter upon which I do not feel qualified to pronounce. Such discussions as I have had on the point suggest that it is desirable that it should be in the Bill. I leave that to those who know more about it than I do.

The important point is that no prosecutor, the police or other investigator should get into the position--which they may if this amendment were carried and nothing else happened--of being pushed into taking a decision to institute proceedings by a pending civil action so as to seek the advantage of new subsection (4D) and a stay in those proceedings if (4E) or some common law substitute were not available.

Lord Bassam of Brighton: I believe that my explanation will be helpful. The presumption in subsection (4E) in Clause 4(1) of the Bill, is that proceedings will not be stayed where no decision has been made to institute criminal proceedings, unless the court is satisfied that to continue the civil proceedings would be contrary to public interest or might prejudice any criminal investigation, the decision about instituting criminal proceedings or any subsequent criminal proceedings. That will place a heavy burden on an investigator or prosecutor seeking a stay. They will have to be in a position to satisfy the court on the likelihood of prejudice to criminal investigations or proceedings before they could secure a stay of a claim under the Act.

It is necessary to have this power available so that when there is justification, the court can hear arguments to allow it to decide whether a stay is appropriate. Of course, a stay does not remove the availability of a remedy. Proceedings, which have been stayed, can be resumed once the grounds for the stay are no longer present. It may be argued that the court could grant a stay without this provision. That is correct, but without the test in new subsection (4E) of the Bill, the courts may apply a lesser test--that is the critical issue--when deciding to stay a claim under the Act which would not be beneficial to claimants.

I hope, with that explanation, that noble Lords will feel able to withdraw their amendment.

Lord Lester of Herne Hill: Before the Minister sits down, perhaps he can help me to decide what to do. He said that there is a heavy presumption in favour of the alleged victim of race discrimination. If he looks at new subsection (4D) and compares it with new subsection (4E) he will see that in new subsection (4D) the test is that the circumstances "would not prejudice" any criminal investigation. Looking at new

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subsection (4E) one sees a looser test: "might prejudice". The test is not "would prejudice", but "might prejudice". In addition, there are the words,

    "would be contrary to the public interest or might prejudice".

Given that new subsection (4E) is an obstacle to the right of effective access of an alleged victim of race discrimination to justice--in other words, it operates to debar an alleged victim of race discrimination by, let us say, the Police Service--I do not understand why what seems to be a stricter test against the alleged victim is inserted in (4E) than in new subsection (4D). What is meant by,

    "contrary to the public interest"?

That is an additional test--in addition to the "might prejudice" test rather than the "would prejudice" test. Why does it say "might prejudice" rather than "would prejudice" if the Government's intention is that this should be a strict test in favour of the victim rather than something that may violate Article 6 of the convention on human rights read with Article 14, the right of effective access to justice?

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