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Amendment made: No. 33, in page 11, line 32 , leave out from 'count' to end of line 36 and insert

'may not be regarded as a sample of other counts unless the defendant in respect of each count is the same person'.— [Mr. Heppell.]

Clause 22

Procedure for determining fitness to plead: England and Wales

Mr. Grieve: I beg to move amendment No. 67, in page 13, line 24, leave out Clause 22.

Madam Deputy Speaker (Sylvia Heal): With this it will be convenient to discuss amendment No. 68, in page 37, line 8, at end insert—

'This subsection does not apply to the amendment in paragraph 60 of Schedule 10 (which accordingly extends to England and Wales only)'.'.

Mr. Grieve: We now come to a part of the Bill that has caused me considerable concern. The Government propose to reform the rules under which unfitness to plead and insanity are determined. At present, the determination of whether a person is fit to plead is made by a jury. If there is a question about fitness to plead, a jury is empanelled for the specific purpose of deciding the matter. In my professional experience as a barrister, I can remember no occasion on which that procedure took a long time, or on which the jury encountered difficulty in reaching a correct decision. However, the Government propose to remove that power from a judge and jury, and to leave the decision to a judge alone.

Mr. Hogg: Does my hon. Friend agree that that is so only in part? Clause 22(5) preserves the jury's right to determine the matter when it arises post-arraignment. In other words, the Government accept that the jury is competent to perform the task.

Mr. Grieve: My right hon. and learned Friend makes a very good point.

Mr. Boswell: Does my hon. Friend agree, therefore, that it is incumbent on the Government to present evidence on the general point, and to apply the method of difference to explain why different regimes should apply pre and post- arraignment?

Mr. Grieve: My hon. Friend is right. If no one has questioned the fact that the jury should continue to play such an important role post-arraignment, why should that role be removed from the jury pre-arraignment?

I am afraid that the Government have a long history of disliking jury trials. The Government showed their hand very clearly in previous statutory attempts to curb jury trial. They believe that jury trial is an inconvenience that must be tolerated at best because of some unfortunate public adherence to its principles. There really is nothing more to this. If the Home Secretary had had his way in the Criminal Justice Act 2003, he would
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have removed jury trial for a raft of substantive offences, and the Government have made earlier attempts to do the same thing.

Mr. Greg Knight (East Yorkshire) (Con): In what percentage of cases is fitness to plead an issue?

Mr. Grieve: My right hon. Friend asks an interesting question to which, I am afraid, I do not have the precise answer—the Minister may well be able to provide one—but I can say that fitness to plead is an issue in a tiny percentage of the total number of cases tried.

Mr. Hogg: I imagine that my hon. Friend would also want to say that the same kind of issue arises in quite a lot of cases—for example, with regard to diminished responsibility, to the defence of insanity and to the question of special reasons when a defendant chooses not to give evidence.

Mr. Grieve: My right hon. and learned Friend is correct, so we are dealing with what appears to be a discrete issue in relation to unfitness to plead and insanity.

Mr. Humfrey Malins (Woking) (Con): I wonder whether my hon. Friend thinks that possibly money might be behind this plan? If the Government put the measure in place pre-arraignment, they would save the cost of empanelling the jury. I wonder whether that could be a factor.

Mr. Grieve: My hon. Friend may be right, but we have not heard sufficient explanation from the Government about their rationale. Indeed, I hope that we will have the opportunity this evening—admittedly, at a late stage in the passage of a Bill—to hear a full explanation of why the Government think that this is the correct action to take.

Vera Baird: This issue arises in only a small percentage of cases, but in about 90 per cent. of the ones in which it does there is no dispute—both sides experts agree that the person is unfit to plead—yet the current law still requires a jury to be sworn in, which is an utter waste of money.

Mr. Grieve: The hon. and learned Lady, as she often does, makes an important point. I can only speak to the amendment, but I am aware that she has an alternative way to meet the problem: where agreement is reached on unfitness to plead, there is no need to empanel a jury, but where a dispute arises, which happens in very few cases, a jury should be empanelled. That goes a very long way to meeting my anxieties.

My basic anxiety is that this is not an issue of administrative convenience. Clause 22 can cut two ways. First, some people may seek to masquerade behind unfitness to plead to avoid the consequences of a conviction against them because they think that that might be to their advantage. Secondly—I do not think that this is too far fetched, but I hope that it never happens—there may be instances where getting someone declared to be effectively insane and unable to
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stand trial is convenient to an authoritarian state. That has certainly happened in other countries. That is another reason why it is important that the issue should be determined by a jury if it is in dispute.

Mr. Hogg: Is there not is another important reason? If a person is found unfit to plead, section 5 powers under the Criminal Procedure (Insanity) Act 1964 come into effect and orders that are analogous to hospital orders may be made. In other words, serious sanctions can be placed on a person who is found unfit to plead, which is surely a matter to be left to a jury.

Mr. Grieve: My right hon. and learned Friend is quite right, and that was precisely the reason why I said that authoritarian states have found it convenient to lock people up on the basis that they are insane without trial or due process. We might be a million miles from that happening in this country, but it is wise for Parliament to guard against anything that could tend to take us down that road.

I do not wish to take up too much of the House's time, so I simply say to the Minister that I cannot understand why we are doing this. As a conservative with a small c as well as a large C, my attitude is that if something does not require reform, there is no earthly reason why we should tinker with it. The likely amounts of time and cost that will be incurred by preserving the existing system would be negligible. Inasmuch as there is a feeling that change should take place, the view taken by the hon. and learned Member for Redcar (Vera Baird) that the right of determination by a jury should be preserved when there is a dispute would be a better approach than that adopted by the Government.

Mr. Greg Knight: I am afraid to tell my hon. Friend that the more I listen to his argument, the more I conclude that the Redcar solution, if I may call it that, appears to be better than his. Why did he not table an amendment in those terms?

Mr. Grieve: I had not fully appreciated the solution proposed by the hon. and learned Member for Redcar at the time at which amendment No. 67 was tabled. My right hon. Friend will notice that the amendment would simply delete clause 22 entirely. Our approach says that we do not need to tinker with this aspect of the law. I shall invite the House to divide on the amendment unless the Minister can exercise colossal persuasion on me to take a contrary view because I do not think that it is an inappropriate way of dealing with the matter. However, the Bill still has to go back to the other place, which is where its passage started. The Government may well defeat us this evening, but if they consider that the hon. and learned Lady's suggestion has merit, they will have the opportunity to accept the proposal—the Minister could do so this evening, I suppose—and the extent of the disagreement between us would be greatly reduced.

Mr. Boswell: On a somewhat different yet related point, I note that my hon. Friend's amendment applies to clause 22. However, clause 23 provides for what I construe to be a parallel procedure for Northern Ireland, although that clause will amend an order. Will
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he clarify his thinking about that? Does he think that it would be appropriate to have a common arrangement throughout the various parts of the United Kingdom?

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