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Lord Renton: My Lords, before the noble and learned Lord sits down, in his experience, has he been involved in cases in which there have been many similar counts that have not been mentioned in the indictment, but which I always felt were rightly referred to by the prosecution after conviction? That is certainly within my experience and that of many others who have been involved as prosecution, defence or recorders in criminal cases.
Lord Goldsmith: My Lords, the noble Lord was in good company in thinking that they were referred to rightlyuntil 1998, when the Court of Appeal said that they could not be. That is what the matter is all about.
Lord Campbell of Alloway: My Lords, I am grateful to all noble Lords who have spoken, particularly the Attorney-General. With respect, I do not agree with his criticism of the subsection, because it does not affect the sample counts upon which they are tried. It affects what used to be counts that lay on the file. However, this is not the moment for me to pick at construction, because it looks as if my own Front Bench has become rather hooked on some kind of assurance and that the noble Lord, Lord Thomas, whether he is hooked or not, has certainly got wind of that. Therefore, I will not get very far with the amendment. In those circumstances, I thank noble Lords, particularly my noble friend Lord Renton, who stood by me in the wilderness, but I must beg leave to withdraw the amendment.
The noble Baroness said: My Lords, I have certainly never seen my noble friend Lord Campbell of Alloway as being in a wildernessif so, it is a crowded place. I shall not speak to Amendment No. 52 in the same group, and will not move it when it is reached in the list.
Amendment No. 50 is based on a Law Commission proposal that toughens up the drafting of new rules on judge-alone trials. At paragraph 7.4 of its Report No. 277 on the effective prosecution of multiple offending, the Law Commission stated:
I believe that that was an appropriate recommendation from the Law Commission and it should be clearly on the face of the Bill. When the Minister responded to me in Grand Committee at col. GC 266 on 2 February, she acknowledged that the requirement for the judge to identify which counts are related to which does not form part of the clause. In accepting that, she said that the clause currently reflected what the Government expected to happen; that is, that provisions of my Amendment No. 50 should be there. She was, in effect, saying, "Amendment No. 50 should happen. It is not in the clause, but don't worry, it'll happen anyway". She said that my Clause 9(8) requires the judge in making an order under subsection (2) to specify which counts are to be tried without a jury and it is intended that he or she should also make clear to which sample counts, if there are indeed more than one, those counts or groups of counts are related.
The noble Baroness, Lady Scotland, maintained that she did not think it necessary to put that clarity into primary legislation, but it might be appropriate for rules to cover the point. I hear thundering back at me in an argument from the noble and learned Lord the Attorney-General that the new rules committee might be found by the Government to be a solution to my proposal here.
Lord Goldsmith: My Lords, that is exactly the answer the noble Baroness is going to get. In our view, Clause 9(8) requires the judge, in making an order under subsection (2), to specify which counts are to be tried without a jury. While it does not require him to specify to which sample counts, if there are more than one, those counts or group of counts related, it is likely that that is what he will do. He will make that clear in the course of the discussion whether it is an appropriate case for there to be sample counts. There will plainly be discussion between prosecuting and defence counsel as to whether certain counts will follow from those samples.
I repeat the answer given in Committee by my noble friend Lady Scotland. We do not consider that there is a need for the provision to be put into primary legislation. If the new rules committeeonce the Bill is passed, it could be done by the Crown Court Rules Committeebelieves it would be helpful to spell out such matters, we can safely leave it to do so at that time.
Baroness Anelay of St Johns: My Lords, I am grateful to the noble and learned Lord for at least saying what I thought he was going to say, even though it did not please me terribly. This is one of a group of amendments which refers to how one deals with sample counts. If we had been able to vote in Grand Committee, it is an amendment that might well have been happily disposed of at that stage. However, we could not do so.
There are other amendments to which we may return at another stage and to which I could give my support if I am able to deal satisfactorily with this one. It may well be that if I am not successful with this amendmentI hope that I shall be shortlyI shall then be able to put the full weight of my party behind Amendment No. 46, to which the noble Lord, Lord Thomas of Gresford, spoke earlier. However, I still hope that my amendment will be agreed to and, on that basis, I wish to test the opinion of the House.
Resolved in the negative, and amendment disagreed to accordingly.
The noble and learned Lord said: My Lords, in moving Amendment No. 50A standing in the name of my noble friend Lady Scotland, I shall speak also to Amendments Nos. 50B, 50C and 50D. These amendments make some improvements to Clause 11. The first amendment deals with a point raised by the noble and learned Lord the Lord Chief Justice.
The purpose of subsection (5) is to provide that where the trial of some counts proceeds without a jury by virtue of an order under Section 9(2), time for appealing against the jury's verdict in respect of the counts which the jury has tried does not run until the end of the non-jury part of the trial.
In order to give effect to our policy that the proceedings should end where there is a two-stage trial at the date of a conviction or verdict, Amendments Nos. 50B and 50C make clear that the point from which time for an appeal begins to run is the conclusion of the non-jury proceedings excluding sentencing.
Amendment No. 50D is a drafting amendment. The words at the beginning of subsection (6), "Nothing in this Part", are not apt, as the multiple offending clauses do not constitute a part by themselves, and so the amendment substitutes a reference to Clauses 9 to 12. I beg to move.