The
Committee consisted of the following
Members:
Chairman:
Mr.
David Amess
Blackman-Woods,
Dr. Roberta
(City of Durham)
(Lab)
Bone,
Mr. Peter
(Wellingborough)
(Con)
Brake,
Tom
(Carshalton and Wallington)
(LD)
Davies,
David T.C.
(Monmouth)
(Con)
Garnier,
Mr. Edward
(Harborough)
(Con)
Hall,
Mr. Mike
(Weaver Vale)
(Lab)
Heyes,
David
(Ashton-under-Lyne)
(Lab)
Howarth,
David
(Cambridge)
(LD)
Jones,
Helen
(Vice-Chamberlain of Her Majesty's
Household)
Moon,
Mrs. Madeleine
(Bridgend)
(Lab)
Mullin,
Mr. Chris
(Sunderland, South)
(Lab)
Prentice,
Bridget
(Parliamentary Under-Secretary of State for
Justice)
Smith,
Mr. Andrew
(Oxford, East)
(Lab)
Soulsby,
Sir Peter
(Leicester, South)
(Lab)
Tyrie,
Mr. Andrew
(Chichester)
(Con)
Wright,
Jeremy
(Rugby and Kenilworth)
(Con)
Mark Etherton, Committee
Clerk
attended the
Committee
Sixth
Delegated Legislation
Committee
Tuesday 7
July
2009
[Mr.
David Amess in the
Chair]
Draft
Criminal Defence Service (Provisional Representation Orders)
Regulations
2009
10.30
am
The
Parliamentary Under-Secretary of State for Justice (Bridget
Prentice): I beg to move,
That the
Committee has considered the draft Criminal Defence Service
(Provisional Representation Orders) Regulations 2009.
It is a
pleasure to serve under your chairmanship, Mr.
Amess.
Before I
speak about the regulations, may I make you and the Committee
aware that reference to paragraph 2A(1)(c) was inadvertently
omitted from the preamble in the draft before us? We have consulted the
Joint Committee on Statutory Instruments on that omission. As a result,
a correction slip has been published to correct the draft before the
Committee. I assure the Committee that the omission does not affect the
substance of the
regulations.
The
regulations are being made to provide for publicly funded legal
representation in cases of investigations of serious or complex fraud,
governed by the guidelines on plea discussions in those cases, which
were issued by my right hon. and noble Friend the Attorney-General on
18 March. The Criminal Justice and Immigration Act 2008
inserted paragraph 1A into schedule 3 to the Access to Justice Act
1999,
titled
Individuals
to whom right may be provisionally
granted.
The
regulations are made under that paragraph, and under paragraph
2A(1)(c).
At the time
of making that amendment to the 1999 Act, we envisioned
making regulations to deal with plea discussions recommended in the
final report of the fraud review published in July 2006. It made a
number of recommendations encompassing the prevention, reporting,
measurement, investigation and prosecution of fraud. The underlying
message, which was fully accepted by the Government, was that an
overarching fraud strategy linking all areas was essential to draw in
all interested parties throughout the public and private
sectors.
On
fraud prosecutions, the report recommended that a frameworka
new guidelinefor the conduct and acceptance of pleas by
prosecutors in fraud cases be issued by the Attorney-General. Detailed
proposals for the framework on plea discussions were the subject of a
public consultation in 2008. With some caveats, which have now been
addressed, the majority of respondents supported the implementation of
the framework.
Discussions about plea and possible sentence already
take place in criminal cases in England and Wales. That can be highly
beneficial in saving time and costs, and crucially, it may reduce the
stress experienced by witnesses
and victims. The benefits may be particularly marked in fraud cases
where the investigation, case preparation and trial are often lengthy,
running over a number of years in some cases. Discussions are also
likely to be more complex in those cases than in others. The
Attorney-Generals aim in issuing guidelines was to put those
discussions on a clearer footing in fraud
causes.
Three key principles are enshrined in our criminal
justice system. First, the prosecutors duty is to ensure that
the case is put before the court in a way that reflects the true facts
and the full gravity of the offence. Secondly, the defendant must not
be put under any improper pressure to plead guilty, so the framework
does not add any new incentive or sentence discount that would reward
a defendant for reaching a plea agreement. Thirdly, the court must have
unfettered discretion to pass the right sentence in all circumstances
of the case. It is important to emphasise that the courts hands
will not be tied in any way by the process. The Attorney-General is
confident that the proposed framework safeguards those principles. It
has been designed to complement the legal system of England and Wales,
rather than be copied from another jurisdiction, where different considerations
may arise.
Currently,
a representation order for publicly funded legal representation in
criminal cases may be granted only after an individual has been
charged. The regulations will allow the provisional grant of a
representation order at an earlier point in the investigation process,
so that the prosecution and the defence can discuss and, in appropriate
cases, agree the basis of a guilty plea. If a plea agreement is
reached, the case will proceed to the Crown court in the usual way.
Judicial discretion will not be fettered in any way, so judges may
accept or reject the plea agreement as they see
fit.
The
regulations also make provision for circumstances in which provisional
representation orders must be withdrawn. Broadly speaking, the Legal
Services Commission must withdraw the provisional representation order
in circumstances where the plea discussions come to an end when an
individual is charged or after three months have elapsed. The
commission must also withdraw a provisional order where it believes
that the plea discussions are unlikely to lead to a plea
agreement.
The
Attorney-Generals guidelines will encourage discussions for
guilty pleas in fraud cases to happen much earlier and more
transparently. Avoiding costly and lengthy fraud trials would be
beneficial for the whole criminal justice system, including legal aid,
and would provide an earlier outcome for victims and witnesses, as well
as for
defendants.
The
three-month lifespan of provisional orders may be extended once only on
application to the commission for a period of up to three months. That
limited period is important to ensure that the process is not allowed
to drift and that, if unsuccessful, it does not cause delays in some
cases.
The
regulations will cease to have effect on 31 December 2011, at which
stage we will evaluate the effectiveness of the process. If the
provision proves to be beneficial to the criminal justice system by
saving time and money and by producing earlier resolution for victims
and witnesses, we envisage introducing a scheme based on graduated
fees, in common with many other areas of legal aid. The Lord Chancellor
will need to amend two
other statutory instruments by negative procedure before provisional
representation orders can be implemented on 1 August
2009.
10.37
am
Mr.
Edward Garnier (Harborough) (Con): May I join the Minister
in welcoming you to our deliberations, Mr. Amess?
The statutory
instrument relates to the Access to Justice Act 1999. Never was an Act
of Parliament more egregiously misdescribed; it has led to the denial
of access to justice to huge numbers of our citizens. I trust that we
will be able to do something about that at some
stage.
Can
the Minister persuade me that the statutory instrument is not a device
to bribe potential defendants to plead guilty in matters of fraud? It
is clearly a device to save the Legal Services Commission the money
that would be incurred in prosecuting cases lasting more than 25 days.
We all need to keep an eye on public resources, but how do we ensure
that undue pressure is not put upon defendants to plead?
What about
investigations where a defendant is persuaded through fair means or
foul to plead, only for it to later become apparent that either the
legal or the factual basis of the plea is different from what is
actually the case? Is there any basis upon which the plea that has been
accepted can be undone and the matter put to the defendant again, so
that he is able either to contest or to agree to the factual basis that
then pertains and to plead to a charge that is relevant to the
subsequently revealed
facts?
The
Minister mentioned that the statutory instrument will not affect the
sentencing discretion of the court. That was a deliciously witty
remark, bearing in mind that the Coroners and Justice Bill, which is
going through Parliament, expressly limits the discretion of sentences.
She and I served on that Bill Committee, so she knows that the
Sentencing Guidelines Council, which was established under the Criminal
Justice Act 2003, is being abolished to be replaced by the sentencing
council, and that the sentencing councils remit is rather
different from that of the
SGC.
Under
the 2003 Act, the SGC allowed sentencersI declare an interest
as oneto have regard to its advice, whereas the scheme under
the Coroners and Justice Bill, which is currently in the other place,
states that sentencers must follow the decisions or advice of the
sentencing council. The Bill therefore removes discretion, which has
caused a great deal of alarm and discussion in judicial circles and in
the press. No doubt, the Minister is well aware of that and will have
an answer that demonstrates that the regulations either conform to that
or do not, in which case we are entitled to a proper
explanation.
To
move on to a subset of the same point, if the regulations do not have
an impact on sentencing, what is the point of them? We are talking
about persuading people that it would be sensible, having taken advice
of one sort or another, to plead in serious fraud cases that could
last, if tried, more than 25 days. There is no point in trying to
persuade a defendant who might be guilty, or is persuaded that there is
sufficient evidence to convict him, to plead guilty if he will not get
some form of discount or leniency in relation to the sentence. I
should have thought that the whole point was to save money, yes, but
also to enable the courts to sentence
persuasively.
Jeremy
Wright (Rugby and Kenilworth) (Con): Is my hon. and
learned Friend also concerned about this point? At the moment, he, as a
sentencer, and other sentencers are entitled to give credit to a
defendant for a guilty plea entered at the earliest opportunity. If
this legislation takes effect, will the earliest possible opportunity
be during the investigation stage and therefore full credit will not be
available at the beginning of the court
proceedings?
Mr.
Garnier: My hon. Friend is entirely right to ask that
question, which, no doubt, the Minister will be able to answer in a few
minutes.
Finally,
I want to know, because the regulations and the explanatory memorandum
are silent on this, what the estimated cost is to the public purse and
in particular to the Legal Services Commission of providing the legal
advice and representation that the regulations envisage. How many
potential defendantspotential accusedare we talking
about? If we are talking about restricted public expenditure systems
between now and 31 December 2011or what the Prime Minister now
calls zero per cent. growthwill the Minister give us a taster
of how she sees this moving on beyond 31 December
2011?
10.43
am
Tom
Brake (Carshalton and Wallington) (LD): It is a pleasure
to see you in the Chair, Mr. Amess.
I thank the
Minister for her explanation of the regulations. The Liberal Democrats
welcome anything that helps to tackle serious fraud, and it is
heartening to see the Government accepting a recommendation by the OECD
to extend the plea negotiation framework to corruption cases.
As a country, we do not have a particularly good reputation in
relation to corruption and bribery. Therefore, I am sure that
implementing the recommendations will be the beginning of a process of
rebuilding our
reputation.
The
framework that the Minister set out has the potential for serious and
high-profile cases partly to bypass the court system. Although she made
it clear that the courts hands will not be tied and appropriate
safeguards are in place, we want to know that serious and high-profile
cases will still get the airing that they should. Some organisations
have expressed strong reservations about the fact that the approach of
encouraging plea discussions could lead, for instance, to companies
that are alleged to have committed serious fraud or corruption avoiding
the intense public scrutiny that would go with a full criminal trial. I
hope that the Minister will reassure us that such cases will receive
the public scrutiny that we would all think was
appropriate.
I
should like to raise some minor points. First, how much will it cost to
introduce legal aid at an earlier stage? No doubt, the Minister will
say that savings will be derived from that, but it is important for
hon. Members to know what costs are associated with it, particularly as
the trend in legal aid is to try to cut costs, rather than to increase
them.
The
explanatory memorandum
states:
Draft
instruments will make further changes, beyond those related to plea
discussions.
I hope that the Minister
will set out what those further changes might be and what she has in
mind.
Finally, the
Government have said that they intend to introduce a graduated fees
scheme in 2012something that we would supportby
contrast to the fixed fee system that they appear to be introducing in
other areas of legal aid. I hope that the Minister will explain why the
Government are going for a graduated fee system in this instance and a
fixed fee scheme in most other
cases.
10.46
am
Mr.
Peter Bone (Wellingborough) (Con): The explanatory
memorandum refers to matters of special interest to the Joint Committee
on Statutory Instruments. It is rather brief. It says,
None. That Committee meets every week, not to consider
the merits of a statutory instrument, but to consider whether it is
legally correct and drafted properly. It would have helped if the
memorandum had stated that this statutory instrument had been
considered by the Committee, because we would know whether the
Committee considered it to be drafted correctly.
One of the
considerations is whether legislation is intra vires, but another
consideration is that of timing. There is a 21-day rule, and the
statutory instrument clearly complies with that rule as it is being
considered today and will come into force on 1 August. However, I was
particularly worried by the Ministers closing sentences when
she said that if the legislation comes into force on 1 August, two
other statutory instruments will have to be amended by negative
procedure. I do not see how they can be amended and keep within the
21-day rule. Will the Minister enlighten the Committee on how the
Government plan to overcome that
problem?
10.47
am