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Baroness Buscombe: I thank the Minister for his response. However, I do not believe that he made specific reference to a point that I believe I made quite clearly. Given the proposed clause, a person under investigation who is then charged will often be forced into a change of representation. This is an important issue, and something that the Government should
carefully consider. A person who is charged will have access only to those legal representatives who are publicly funded—
Lord Bassam of Brighton: I am not quite sure what difference that would make. Perhaps the noble Baroness could assist me in that respect.
Baroness Buscombe: The difference is that such a person will have access only to those legal representatives who are prepared to carry out the work at publicly-funded levels. In that case, the person's choice of representation is diminished. The question is whether or not that is correct in principle. Indeed, is that just?
We believe that our proposal is sensible. As the noble Lord, Lord Goodhart, observed, we are talking about removing the right of the defendant to use his own money, which is something that would seem to be rather more sensible than turning to publicly-funded alternatives. It is a practical suggestion. We are disappointed that the Government have not changed their view since the debate took place in the other place. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 43 [Application, discharge and variation]:
[Amendment No. 66A not moved.]
Clause 44 [Appeal to Court of Appeal]:
Baroness Buscombe moved Amendment No. 67:
- Page 29, line 38, leave out subsection 1 and insert—
The noble Baroness said: The purpose of this amendment is to allow a right of appeal both by the investigator against a refusal to make a restraint order and also to the suspect and any third party to appeal against the making of an order, with the public funding that would enable them to do so.
Currently, the wording allows the investigator making the application a right of appeal only against the refusal to make an order. Clauses 44 and 45 deal with appeals from the Crown Court to the Court of Appeal and to the House of Lords. There is no general right of appeal under the Supreme Court Act 1981 from the Crown Court to the High Court. This legislation could create such a right.
However, it would not create a right to appeal against the making of a restraint order, merely against the refusal of a Crown Court to vary or discharge an order. There are clearly resource implications for Crown Courts in dealing with restraint orders. Indeed, there are also training implications which will cost time
Although Crown Courts are used to dealing with confiscation, restraint is a wholly different matter, in particular in the light of the ability to apply for orders prior to the institution of proceedings. Up until now, Crown Courts have never been involved in criminal proceedings or property proceedings prior to a person being charged. We believe that it is therefore imperative that a suspect and third party rights are safeguarded. I beg to move.
Lord Goodhart: I strongly support this amendment and it is only through an oversight that I did not add my name to it. Frankly, it is ridiculous to have a situation where the person against whom an order is made cannot appeal directly against the restraint order. He can do so only by applying to discharge the order and then appealing against a refusal to discharge it. That achieves exactly the same result, but it does so by involving a wholly unnecessary intermediate process. It would be very much simpler if the person against whom the order is made had the right of a direct appeal against the making of the restraint order.
Lord Rooker: We do not think that these amendments are either necessary or desirable. As noble Lords have said, they would give persons other than the investigator or, for that matter, the prosecutor, a right of appeal against the court's refusal to make a restraint order.
The Bill has been drafted precisely to prevent that outcome. There is no error or failure here. We fail to see why a person other than the one who applied for a restraint order should have any need for a right of appeal against the refusal to make it.
A further effect of the amendment would be to require an appeal to the Court of Appeal to be lodged immediately. As we explained in the other place, the Bill expects individuals to apply to the Crown Court for a variation of the order first, and only then to appeal to the Court of Appeal. The report in Hansard of 29th November makes that clear. In fact, this is currently what happens in practice. As most restraint orders are made ex parte, the defendant and third parties will not have had a chance to be heard, so it makes sense that they should first apply to the Crown Court and then appeal against the decision of the Crown Court under Clause 44(2).
If the amendment were carried, the Court of Appeal's time would be wasted quite unnecessarily and there would be massive resource implications. I should also stress that public funding on the usual terms is already available for these applications, whether through criminal public funding in the case of the defendant or civil public funding as set out for other persons in the amendments to the Access to Justice Act 1999, which is affected by Schedule 8 to the Bill.
Having made those comments, I invite the noble Baroness to withdraw her amendment.
Baroness Buscombe: I thank the Minister for his full response which I shall consider carefully in Hansard. I shall also take this opportunity to read through Schedule 8 to the Bill.
However, on the face of it, my immediate response is that I cannot agree with the Minister, and I am grateful to the noble Lord, Lord Goodhart, for his support and clarity of approach to the rather nonsensical problem before us. I shall think about it further, but we may well return to the matter on Report. For now, however, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bassam of Brighton moved Amendment No. 68:
The noble Lord said: The amendment flows from the transfer of the restraint jurisdiction from the High Court to the Crown Court. Hearsay evidence is nowadays routinely admitted in civil proceedings. Restraint proceedings currently take place in the High Court and they, likewise, rely on hearsay evidence. This is important where the authorities need to get a restraint order at short notice. The prosecutor will ordinarily put in a witness statement referring to the sources which make him believe that the case is appropriate for restraint.
The procedures of the Crown Court, as a mainly criminal court by contrast, have far more stringent evidential rules. Now that restraint is to be based in the Crown Court, more stringent evidential rules could mean that hearsay evidence is not admissible. That would have a very serious effect on the conduct of the proceedings. The amendment puts it beyond doubt that the Crown Court, in dealing with any restraint matter, can accept hearsay evidence in the same way as the High Court.
I draw the Committee's attention to the safeguards in subsections (2), (3) and (4) of the clause. These apply Sections 2 to 4 of the Civil Evidence Act 1995 to the Crown Court in a restraint proceeding. Sections 2 to 4
The amendment is technical but it amounts to a new clause. It is important because it bites on the practical operation of all future restraint cases. I beg to move.
"(1) The following can appeal against the court's decision on an application for a restraint order—
(a) the applicant, or
(b) any person affected by the decision,
and public funding will be available for any person appealing against a decision under (b)."
After Clause 46, insert the following new clause—
"HEARSAY EVIDENCE
(1) Evidence must not be excluded in restraint proceedings on the ground that it is hearsay (of whatever degree).
(2) Sections 2 to 4 of the Civil Evidence Act 1995 (c. 38) apply in relation to restraint proceedings as those sections apply in relation to civil proceedings.
(3) Restraint proceedings are proceedings—
(a) for a restraint order;
(b) for the discharge or variation of a restraint order;
(c) on an appeal under section 44 or 45.
(4) Hearsay is a statement which is made otherwise than by a person while giving oral evidence in the proceedings and which is tendered as evidence of the matters stated.
(5) Nothing in this section affects the admissibility of evidence which is admissible apart from this section."
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