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Lord Waddington: Perhaps I can take this opportunity of making some general comments on Schedule 2 and then invite the noble and learned Lord to correct me if I have the situation wrong, which may well be the case.
The procedures set out in Schedule 2 remind us that doing away with committal proceedings may place a considerable additional burden on the Crown Court. It may be worth while reminding ourselves as practitioners that Clause 42 does not mean that, every time a person is brought before a magistrates' court charged with an offence triable on indictment, the case must go to the Crown Court. When a defendant appears before a magistrates' court charged with an offence triable only on indictment and on reflection it appears to both the defence and the prosecution that a lesser charge could meet the justice of the case, there is no reason why the charge should not be withdrawn, a lesser charge put to the defendant and the matter dealt with summarily on the same day.
I can remember cases where I appeared before a magistrates' court and committal proceedings were commenced. It then became apparent that not only was the major charge misconceived, but also that the lesser charge which was covered by the statements was one which could conveniently be tried by the magistrates. On those occasions the committal proceedings were terminated; the magistrates' court changed its identity from being committing magistrates to magistrates sitting
summarily; the lesser charge was put to the defendant; he elected to have the case dealt with by the magistrates and the matter was dealt with on that day. Just because a person has been charged with an offence which is only triable on indictment, there is no reason why practitioners should not bear in mind that that does not mean an end to the matter; in other words, that they can all sit back and let the matter go to the Crown Court with all the attendant burdens on the Crown Court that that entails.One further point should be made clear, though I do not recommend this course for one moment. There is nothing in Schedule 2 to prevent a defendant turning up on the day the case is listed for trial and, before arraignment, arguing that the statements do not disclose an offence. Obviously that is highly undesirable and messes up the court list. But it surely is not right to give the impression that the only way in which a trial can be aborted is by initiating the procedures set out in Schedule 2; making a special application to the court before the day of trial and then there being some hearing before the court or some determination by the judge that there is no case to answer.
I hope that I am right on those two points. They may allay some people's fears that the new procedure is bound to put a considerable additional burden on the Crown Court.
Lord Henley: I rise briefly to say that we have no objection to these amendments. I take the opportunity also to thank the noble Lord, Lord Williams, for helpfully writing to us at an early stage with details of the various government amendments that were to be proposed. Those were dealt with in his letter of 30th January.
The noble Lord mentioned three amendments in his letter--Amendments Nos. 208, 209 and 211--and no mention was made of Amendment No. 210. However, I worked out for myself, as the noble and learned Lord the Solicitor-General stressed, that it only corrects a typographical error. I am grateful for the assistance the Government provided on this occasion and we have no objection to the amendments.
Lord Falconer of Thoroton: I am grateful for the intervention of the noble Lord, Lord Waddington. He is right when he says that these provisions only apply where there is an indictable-only offence. It means that if the indictable-only offence drops away, there is specific provision within Schedule 2 for the matter to revert to a less elevated mode of trial; namely, a summary trial.
I believe that deals with the noble Lord's first point and it is a point worth underlining; namely, the fact that one starts off on an indictable-only route, does not mean that one must stick with it if a lesser charge, which is not an indictable-only one, looks more appropriate. I am grateful to the noble Lord for reminding us, and practitioners in the wider world, of the position.
In relation to the position of applications for dismissal, the noble Lord has seen paragraph 2 of Schedule 2, which provides for applications to be made
to dismiss charges on the papers. I draw attention to the fact--I am not sure that this is what the noble Lord had in mind but it may be--that such an application can be made either orally or in writing to the Crown Court. It can therefore be made at any time, subject to the rules. I hope that meets the noble Lord's second point. I am not sure that it does, but it is the best that I can do at the moment. If I have not met the point, perhaps he will raise it with me.
Lord Waddington: It seemed an obvious point and hardly one worth making. Leaving aside Schedule 2 entirely, there is nothing in the new Bill which prevents a person appearing on the day of trial, when the case is listed for trial and before arraignment, arguing that he should not stand trial for the offence because the papers before the court do not reveal an offence.
Lord Falconer of Thoroton: That is absolutely right and that is a right that any person standing trial on indictment has in any event at the moment. It is an important point and I am sorry that I did not pick it up quicker. I believe that deals with the points made by the noble Lord, Lord Waddington. I am grateful to the noble Lord, Lord Henley, for indicating his support for the amendments.
On Question, amendment agreed to.
Lord Falconer of Thoroton moved Amendments Nos. 209 to 211:
The noble and learned Lord said: With the leave of the Committee, I shall move these amendments en bloc. I beg to move.
On Question, amendments agreed to.
Schedule 2, as amended, agreed to.
Lord Falconer of Thoroton moved Amendment No. 212:
Page 84, line 21, at beginning insert ("Subject to paragraph 10A below").
Page 85, line 24, after ("if") insert ("he").
Page 85, line 43, at end insert--
("10A.--(1) This paragraph applies, in place of paragraphs 5 to 10 above, in the case of a child or young person who--
(a) has been sent for trial under section 42 of this Act but has not been arraigned; and
(b) is charged on an indictment which (following amendment of the indictment, or as a result of an application under paragraph 2 above, or for any other reason) includes no offence that is triable only on indictment.
(2) The Crown Court shall remit the child or young person for trial to a magistrates' court acting for the place where he was sent to the Crown Court for trial unless--
(a) he is charged with such an offence as is mentioned in subsection (2) of section 53 of the 1933 Act (punishment of certain grave crimes) and the Crown Court considers that if he is found guilty of the offence it ought to be possible to sentence him in pursuance of subsection (3) of that section; or
(b) he is charged jointly with an adult with an offence triable either way and the Crown Court considers it necessary in the interests of justice that they both be tried for the offence in the Crown Court.
(3) In sub-paragraph (2) above "adult" has the same meaning as in section 42 of this Act.").
4.45 p.m.
Before Clause 44, insert the following new clause--
(". For section 7A of the 1985 Act there shall be substituted the following section--
"Powers of non-legal staff.
7A.--(1) The Director may designate, for the purposes of this section, members of the staff of the Crown Prosecution Service who are not Crown Prosecutors.
(2) Subject to such exceptions (if any) as may be specified in the designation, a person so designated shall have such of the following as may be so specified, namely--
(a) the powers of a Crown Prosecutor in relation to decisions whether to institute or continue criminal proceedings;
(b) the powers and rights of audience of such a Prosecutor in relation to--
(i) applications for, or relating to, bail in criminal proceedings;
(ii) the conduct of criminal proceedings in magistrates' courts other than trials.
(3) A person so designated shall exercise any such powers subject to instructions given to him by the Director.
(4) Any such instructions may be given so as to apply generally.
(5) For the purposes of this section--
(a) "bail in criminal proceedings" has the same meaning as it has in the Bail Act 1976 by virtue of the definition in section 1 of that Act; and
(b) a trial begins with the opening of the prosecution case after the entry of a plea of not guilty and ends with the conviction or acquittal of the accused."").
The noble and learned Lord said: Amendment No. 212 inserts a new clause in the Prosecution of Offences Act 1985, with a view to giving the Director of Public Prosecutions the power to designate persons who are not lawyers and give them power to conduct criminal proceedings in magistrates' courts and also to review cases.
The new clause gives effect to two recommendations in the report, Reducing Delay in the Criminal Justice System. One was that the Director of Public Prosecutions should confer on staff of the Crown Prosecution Service who are not lawyers, the power of a crown prosecutor to review files; the other, that such lay staff should be able to present uncontested cases in magistrates' courts.
The new clause enables the DPP to designate members of CPS staff who are not legally qualified for two purposes. The first is making decisions whether to institute or (more usually) continue cases; at present a decision to prosecute cannot be taken by any member of staff of the CPS who is not a crown prosecutor. The second is conducting criminal proceedings in magistrates' courts other than contested trials. Such proceedings include bail applications, which non-qualified staff can already be designated to deal with under Section 7A of the Prosecution of Offences Act 1985.
A lay member of staff who has been designated under this clause will have the same powers and rights of audience as crown prosecutors. Such a person would be required to exercise those powers subject to instructions given by the DPP, which would cover (among other things) the circumstances in which it would be appropriate for proceedings to be discontinued. Lay presenters are already successfully used in substantial numbers of cases brought in the magistrates' courts by prosecuting authorities other than the CPS; for example, HM Customs & Excise and the Health and Safety Executive.
I should like to emphasise that the effect of this provision is not to extend the rights of lay presenters to review cases or to appear in cases beyond the proposals advanced by Narey in his review of delay in the criminal justice system. In effect, that would deal with uncontested cases of a relatively minor sort. I beg to move.
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