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Mr. Heath: I beg to move amendment No. 8, in page 11, line 32 leave out subsection (9).
Mr. Deputy Speaker: With this it will be convenient to discuss the following: Government amendment No. 33.
Amendment No. 9, in page 11, line 34 leave out 'and' and insert—
'(b) evidence in respect of each count is admissible at the trial of the sample count, and'.
Mr. Heath: We now move on to trial by jury of sample counts. The debate in Committee was slightly confused—I rarely accuse the Solicitor-General of being confused, but some of her responses to my points were confused—and the confusion lay in the difference between the conditions in clause 17. A court would apply those conditions to determine whether it is appropriate to deal with sample counts, and some of us feel that the definition in subsection (9) is incomplete.
In Committee, the Solicitor-General was at pains to tell me that it is important that all the conditions are fulfilled, and I agree with that point. Subsection (2) identifies that the conditions must be fulfilled.
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Subsection (3) states:
"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."
"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."
"The third condition is that it is in the interests of justice for an order under subsection (2) to be made."
Those conditions are perfectly proper.
Subsection (9) contains an almost redundant definition of what might be a sample count under clause 17. If we treat it as a definition, the missing ingredient is a provision on cross-admissibility. Such a provision was inserted in another place and removed by the Government in Committee, and I seek to reinsert it through amendment No. 9, which I intend to press to a Division at this debate's conclusion if the Government do not accept it.
Amendment No. 8 would delete subsection (9). To some extent, it is a facetious amendment because I do not necessarily want to do without definition. However, it is better to have no definition than incomplete definition. If we are interested in making proper law, the definition should be complete. In Committee, the Solicitor-General said that a judge would understand what it meant. Perhaps that is the case, but why do not we write it in bold in the Bill so that everybody understands it and there is no room for misunderstanding? If we are to have a definition, let it be complete; if it is not complete, let us do without it.
A more satisfactory answer was provided in another place through an amendment supported by Liberal Democrat and Conservative peers. I note that the hon. Member for Beaconsfield (Mr. Grieve) and his colleagues have been happy to add their names to amendment No. 9. It simply states what we expect of cross-admissibility. It would insert a new paragraph (b), which states that
"evidence in respect of each count is admissible at the trial of the sample count".
The point is important and cannot simply be ignored. It would be helpful if the Solicitor-General accepted that even at this late stage. If she does not, I suspect that we will debate the matter again in the future. I do not especially want to press for the removal of subsection (9), although I shall consider that option in the light of the Government's response. It would be far better to have a complete definition.
Mr. Grieve:
The hon. Member for Somerton and Frome (Mr. Heath) knows from our debates in Committee that the official Opposition's view was that, although the Government had the justification for introducing clause 17 of trying to simplify the trial process in cases of a multitude of identical counts by enabling some to be tried as sample counts and the others either to be taken into consideration, or, if the defendant refused, to be tried without a jury, we were worried when we read how far the definition of "sample" could be extended. The Government's introduction of subsection (9) highlights the fact that,
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although in my experience as a practitioner, the use of the term "sample count" is common at the Bar, it has not been subject to legal definition. Subsection (9) tries to provide that definition.
The definition begins with the bizarre statement that
"the defendant in respect of each count is the same person".
I should hope so, otherwise we would be in a strange world. It continues by saying that a count is to be regarded as a sample if
"the judge considers that the sample count is a sample of the other counts."
I have great faith in our judiciary but not to the extent that Parliament should avoid providing it with guidance if we have a clear view of what constitutes a sample count.
Let me give an example of a sample count. A defendant steals a credit card and uses it 50 times. Each time, he obtains property by deception. Instead of charging him with 50 offences—that would lead to a long, complicated and rather ponderous trial— he would be charged with one count for the first time he used the card to obtain property, another count for the last time and perhaps two or three other counts to cover the period when the offences were taking place. I am content with the notion that, if, at the end of the trial on those counts, the defendant did not accept having the others taken into consideration, it would be proper to say that there had been a trial of the sample and the judge could deal with the others. I fear, however, that under subsection (9) as it is currently drafted, it would be possible for the scope of a sample count to be considerably widened.
This matter was considered in great detail in the other place, and an amendment to the Bill was passed— I think that it was a very good one—to ensure that in any case involving sample counts, the defining element linking them all together would be that
"evidence in respect of each count is admissible at the trial of the sample count".
That principle is well known in our legal system, and it seems completely to address the vagueness that might otherwise result from subsection (9).
I join the hon. Member for Somerton and Frome in saying—and I am sorry to have to say it—that no adequate explanation was provided in Committee as to why amendment No. 9, on which I hope that we shall be able to vote, would somehow wreck this part of the Bill. I was mystified by the fact that the only argument being put forward was that we did not need proposed new paragraph (b), as shown in amendment No. 9, because a judge would be able to deal with the matter quite satisfactorily.However, the Solicitor-General cannot have it both ways.
Mr. Hogg: Might I suggest a reason why this proposal might create a difficulty? If the evidence is mutually admissible, the fact of a conviction in the trial before a jury would be admissible in evidence in the trial without a jury. As we all know, once someone has a previous conviction, their chances of getting an acquittal are greatly diminished.
Mr. Grieve:
My right hon. and learned Friend makes a good point, although it is also right to point out that
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from December, the operation of the new rules under the Criminal Justice Act 2003 will completely change the position in respect of the admissibility of previous convictions. It is certainly envisaged that, in this scheme of things, the same judge who tried the previous matter with a jury would subsequently try the other counts—if they were not accepted—without a jury.
At this stage of the Bill's passage, we can only do our best to rectify its worst mischiefs. In amendment No. 9, we are seeking to ensure that a sample count involves what the majority of legal practitioners would understand a sample count to be. For that reason, we support the intention to put the amendment to the vote. In the meantime, I shall be interested to hear from the Minister an explanation as to why it would do so much damage to the main thrust of clause 17.
Mr. Hogg: Before we hear the answers from the Minister or the Solicitor-General, might I rise briefly to make my points? Personally, I would prefer the removal of the definition for the perverse reason that it would make it less likely that a judge would exercise the powers provided by clause 17, because I am deeply disturbed by those powers. I do not see the justification for them. I am keeping firmly to order in this matter, Mr. Deputy Speaker. To start off with, if a judge had this power—even if it were modified by subsection (9) as amended—there would be a tendency for them to overload the indictment. If lots of counts can be put into the indictment, they will be, and that is bad news.
Secondly, and quite differently, the courts already have the power to deal with the matter on the sentence. The prosecution will simply say to the trial judge, "My Lord, you know that this is a sample count in respect of which a conviction has taken place." In all probability, the trial judge will have the power to impose an appropriate sentence. I therefore find it difficult to see why we should have the powers set out in clause 17 at all. If we removed the definition in subsection (9), as proposed in the amendment, the trial judge would be less likely to invoke the clause 17 powers.My first argument, therefore, is to ask whether the clause 17 powers are desirable. If the answer to that is no, I shall be in favour of removing the definition, because that would be one way of making it less likely that a judge would use those powers.
5.15 pm
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