Serious Organised Crime and Police Bill

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Mr. Heath: I am glad that I gave way to the hon. and learned Lady. When she reinforces my case on such matters I feel that I am probably onto something even more worthy of careful consideration by the Minister.

Will the Minister indicate the extent to which she believes my concerns are covered by the provision? Assurances were given that there would not be circumstances in which a court was not made aware. I agree with the hon. and learned Lady that that disclosure should extend to the defence team in those circumstances. If it is not to be covered, how is the assurance that was given on Second Reading to be put into effect?

Caroline Flint: I hope that what I have to say will reassure the hon. Gentleman and. Having heard the comments of my hon. and learned Friend the Member for Redcar, I think that we will meet her requirements as well.

If the subject of an immunity notice provides evidence that is potentially relevant to a case, the immunity notice will be disclosed to the defence in the usual way. That applies whether or not the prosecution are likely to seek to admit the evidence. Therefore, it is open to the defence or the prosecution to bring that to the attention of the court. We think that the provision is sufficient and, therefore, that it is for the trial lawyers to decide whether the existence of the immunity should be brought to the attention of the court.

Mr. Heath: The Minister is being helpful. She says that it will happen. Why will it happen? Under what regulation or rule of court will it happen?

Caroline Flint: I am pleased to be able to inform the hon. Gentleman that it is a requirement to disclose the immunity to the defence under the Criminal Procedures and Investigations Act 1996. That provision would apply in the circumstances that we are discussing. I shall be happy to write to him with the detail of the relevant section if that will be helpful. For a number of reasons that have already been mentioned, it is appropriate that there be provision for both the defence and the prosecution to make the court aware of an immunity.

Vera Baird: My hon. Friend is being unequivocal. The basis on which it would be within the legislative provision to which she refers would be if the
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immunity undermined the prosecution or assisted the defence. In fact, it is likely to assist the defence, so she is probably right, but it is important to get her to say it. When she says that the information will be made available in the usual way, I hope that she does not mean it literally, since at the moment one has the devil's own job getting such information out of the Crown, and I hope that we will not have to struggle like that in the future.

Caroline Flint: I shall not say that I am totally right. I am not a lawyer, so my hon. and learned Friend will know better than I what is meant by ''in the usual way''. I shall write to colleagues to reassure them.

Mr. Heath: I am grateful to the Minister for her reply. I am also grateful for the interventions of the hon. and learned Member for Redcar, who has the benefit of her court experience, which many of us do not have. I had thought that the statute to which Minister referred showed extraordinary prescience in anticipating that we would produce in this Bill a new species of immunity notice, so that no express reference is required. I now understand from what the hon. and learned Lady said that the information is merely subsumed within the general class of matters that might be of assistance to the defence. I am not entirely satisfied that that is adequate. However, the Minister has said that she will consider the matter.

I would be helpful if reference to an immunity were given to the defence as a matter of course, rather than the Crown having to assess whether that might be appropriate. It will be helpful if the Minister addresses that in the course of writing to me and other Committee members. I am sure that there is no difference of intention across the Committee. However, there is a slight question as to how the measure will work in practice, and whether the provisions to which she has drawn our attention are sufficient. We will be able to consider that in more detail once she has had the opportunity to write to us. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 65 ordered to stand part of the Bill.

Clause 66 ordered to stand part of the Bill.

Clause 67

Assistance by defendant: reduction in sentence

Caroline Flint: I beg to move amendment No. 167, in clause 67, page 37, line 31, after 'agreement', insert

    'made with a specified prosecutor'.

The Chairman: With this it will be convenient to discuss Government amendments Nos. 168 to 171.

Caroline Flint: The amendments ensure that the written agreements referred to in clauses 67 and 68 can only be between a specified prosecutor and the defendant. That has always been our intention, as we set out in the White Paper. The clauses do not specify with whom the defendant can enter into an agreement, and I hope that the Committee will recognise that the amendments clarify the position. Specifically, they
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provide that the written agreements will be between the defendant and any prosecutor specified in clause 65.

Amendment No. 169 removes the reference to custodial sentences and ensures that the court should be able to undertake a review of any sentence imposed by the Crown court.

Amendment agreed to.

Amendment made: No. 168, in clause 67, page 38, line 34, at end insert—

    '(9) An agreement with a specified prosecutor may provide for assistance to be given to that prosecutor or to any other prosecutor.

    (10) References to a specified prosecutor must be construed in accordance with section 65.'.—[Caroline Flint.]

Question proposed, That the clause, as amended, stand part of the Bill.

Mr. Djanogly: I rise on an point of clarification. We fully support the formalisation through written undertakings of plea bargaining and turning Queen's evidence. However, subsection (2) says:

    ''the court may taken into account the extent and nature of the assistance given or offered.''

I note the use of the word ''may'', which presumably means that the court could ignore the written plea bargain agreement if it so wished. Might not that create a problem? Could not the offender turn round and ask why he should take the risk of turning Queen's evidence if the court may turn round and say that it will take no notice of the agreement? In fact, could not the offender say, ''I won't sing unless I get immunity under section 65''? A bizarre situation could then arise. It would be in the public interest for the offender to take a lesser sentence and at least go away for some time, but, in the event, he might get immunity because of the lack of certainty.

Caroline Flint: We believe that it is appropriate and important for the judge to have some oversight. We are talking about situations in which people have committed a crime and been charged with it. If the judge accepts the Queen's evidence, it is appropriate that he is able to take it into account when determining the reduced sentence, as he will have had oversight over the whole hearing into the offence with which the person was charged.

Someone who agrees to give evidence under the provisions will not be offered a deal stating how much will be taken off their sentence; that will be determined at the end of the trial process. Obviously, if they plead guilty, the process will be pretty quick, but we do not want to be seen to wheel and deal on reducing the sentence before that point, and we feel that the judge's involvement is an important safeguard to that end.

Sentencing in this country is a matter for judges. That is why we have not gone down the route, as other jurisdictions have, of giving prosecutors such powers when they are trying to get people involved in proceedings. We cannot force judges to take assistance into account in all instances, because it is important that they hear the case and understand the nature of the offences in which a person has been involved. Normally, a judge will do so, and the
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defendant can appeal the sentence if he believes that a relevant factor, such as Queen's evidence, has been ignored.

We are trying to make Queen's evidence much more transparent and accountable, and therefore much more used. In this country less than 1 per cent. of relevant cases involve Queen's evidence, whereas the figure is around 15 per cent. in Australia. However, we are mindful of the fact that we are talking about people who have committed offences to which they will, in most cases, have pleaded guilty. The judge must have the authority and power to deal with that as he sees fit at the time.

Mr. Djanogly: I do not disagree with the Minister, but point out that, as things stand, deals can be done. The reason why they have not been working is the lack of certainty that attaches to them. Addressing that is part of the purpose of the provisions in the Bill. Do the Government intend there to be a procedural agreement among the judges, so that in a certain situation they would act in a certain way, with the intention of giving more certainty and therefore a better chance that the provisions will work?

Caroline Flint: I think that the fact that we are putting Queen's evidence on a statutory footing gives it far more certainty than the existing arrangements. I find it difficult to answer the hon. Gentleman's question now, however. He seems to be asking me to describe the circumstances in which a judge would not agree to an exchange involving Queen's evidence and a reduction in sentence for an offence to which an individual has presumably pleaded guilty. I am happy to write to the hon. Gentleman with more detail, and to copy the letter to other members of the Committee.

What we propose is a great improvement. There will be guidance to provide a framework and to give better security for the people whom we are trying to engage in providing information. However, when we are talking about people who have committed criminal offences, there is no such thing as done deal.

Question put and agreed to.

Clause 67, as amended, ordered to stand part of the Bill.

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