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Lord Thomas of Gresford moved Amendment No. 127:



"( ) Where the court makes a decision under subsection (1) that the offence is more suitable for summary trial, having been informed of the accused's previous convictions under subsection (2)(a), the court as constituted shall not continue to try the accused."

The noble Lord said: In moving Amendment No. 127, I shall speak also to Amendments Nos. 128, 129 and 130, which give rise to a very important point of principle.

I am very concerned that where a court has made a decision having been informed of the accused's previous convictions, then that court should not continue to try him. That is the purpose of the subsection I seek to insert in paragraph 5 of the third schedule. For the existing Section 19 there is to be substituted a decision as to allocation. The court will give the prosecution an opportunity to inform the court of the accused's previous convictions, if any, and will also give both the prosecution and the accused an opportunity to make representation as to what sort of trial is more suitable.

Having come to that conclusion, we consider that the court should disqualify itself from sitting to determine the matter as ordinary magistrates. I beg to move.

Lord Goldsmith: I speak to Amendments Nos. 127, 128, 129 and 130. Amendment No. 127 would disqualify magistrates to whom antecedents had been revealed at allocation from hearing any subsequent summary trial.

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The Government recognise that there will be circumstances when lay magistrates or district judges consider that information which has been revealed to them in the course of an allocation hearing is sufficiently prejudicial that they feel it would not be proper for them to hear the trial of that defendant if summary trial is agreed.

In those circumstances it is appropriate for the magistrates to stand down; and that is what they would do. But the question here is whether that is what magistrates should be required to do by putting it on the face of the Bill. It is quite well known that magistrates will hear cases involving defendants where one or more of them were involved in convicting that same defendant some time before. Indeed, in some parts of the country with the more prolific local offenders it would be quite hard sometimes for the local Bench not to recognise a defendant as someone they dealt with only recently. It would be odd if a magistrate were disqualified automatically by reason of being informed that a defendant had a certain previous conviction, but would have a discretion to hear the case if he himself convicted him a month before. We are prepared to trust magistrates and district judges to know when it is appropriate for them to sit.

For that reason we believe that the automatic disqualification for which Section 42 of the Magistrates' Courts Act 1980 provides can be dispensed with. We would therefore not accept Amendment No. 130, which is consequential on Amendment No. 127.

Amendment No. 128 deals with a different point. That would require a prosecution application to have a case re-allocated for Crown Court trial to be made within seven days of the decision to allocate it for summary trial. The justification for allowing such an application is that an allocation decision may have been made on the basis of incomplete information. If it is discovered, for example, that a defendant who was believed to have no previous convictions in fact has many and all for offences similar to that for which he stands charged, and this discovery is made before the start of his trial, why should he not be sent to the Crown Court to be tried? Why impose a time limit of seven days, which would be quite arbitrary?

The idea of being able to move from summary trial to committal proceedings is not an innovation: there is existing provision for that.

Finally, Amendment No. 129 would require the defendant to be notified of such an application. I am sure that the normal practice would be for the Crown to inform the defendant wherever it was practicable to do so. My only doubt is whether a statutory requirement to do so might lead to unnecessary delay in cases where notification was for some reason not practicable and the need for Crown Court trial indisputable. But I am prepared to consider whether a statutory requirement could be incorporated.

Lord Thomas of Gresford: In the light of those assurances I am happy to withdraw the amendment. I

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am very grateful to the noble and learned Lord for saying that the court will consider whether it should continue to sit in particular circumstances. When that is drawn to the attention of the magistrates I am sure that they will come to a proper decision. I hear what the noble and learned Lord says about Amendments Nos. 128 and 129. I should be grateful if he would consider the placing of the opportunity to make representations on the face of the Bill. I wait with interest to see what he will do. For the moment, I beg leave to withdraw Amendment No. 127.

Amendment, by leave, withdrawn.

[Amendments Nos. 127A to 130 not moved.]

Lord Goldsmith moved Amendment No. 131:


    Page 199, line 19, leave out from second "offence" to end of line 20 and insert "triable either way;"

The noble and learned Lord said: I move Amendment No. 131 and speak to Amendment No. 132. Amendment No. 131 brings the definition of an either way offence into line with that of the Interpretation Act 1978. It is therefore a technical amendment that I hope will be acceptable.

Amendment No. 132, which appears to be very substantial in length, makes numerous consequential amendments to Schedule 3. It results from the new allocation and sending provisions, which are provided in that part of the Bill that we have just dealt with. It is necessary, in the light of the new provisions for allocation and for sending of cases, that such consequential amendments be made. Noble Lords will understand why, at this hour in the evening, I do not propose to go through every one of such consequential provisions. I beg to move.

On Question, amendment agreed to.

Lord Goldsmith moved Amendment No. 132:


    Page 210, line 5, at end insert—

"PART 2 MINOR AND CONSEQUENTIAL AMENDMENTS
Administration of Justice (Miscellaneous Provisions) Act 1933 (c. 36)

29 (1) Section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 (procedure for indictment of offenders) is amended as follows.
(2) In subsection (2)—
(a) in paragraph (a), for "committed" there is substituted "sent",
(b) paragraphs (aa) to (ac) are omitted,
(c) for paragraph (i) there is substituted—
"(i) where the person charged has been sent for trial, the bill of indictment against him may include, either in substitution for or in addition to any count charging an offence specified in the notice under section 57D(1) of the Crime and Disorder Act 1998, any counts founded on material which, in pursuance of regulations made under paragraph 1 of Schedule 3 to that Act, was served on the person charged, being counts which may lawfully be joined in the same indictment;",.

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(d) paragraphs (iA) and (iB) are omitted,
(e) in paragraph (ii), for "the committal" there is substituted "such notice", and
(f) the words from "and in paragraph (iA)" to the end are omitted.
(3) In subsection (3)(b), for "committed" there is substituted "sent".
Criminal Justice Act 1967 (c. 80)

30 (1) The Criminal Justice Act 1967 is amended as follows.
(2) In section 9 (proof by written statement), in subsection (1), the words ", other than committal proceedings," are omitted.
(3) In section 36 (interpretation), in subsection (1), the definition of "committal proceedings" is omitted.
Criminal Appeal Act 1968 (c. 19)

31 (1) The Criminal Appeal Act 1968 is amended as follows.
(2) In section 1 (right of appeal), in subsection (3), for "committed him" there is substituted "sent him to the Crown Court".
(3) In section 9 (appeal against sentence following conviction on indictment), in subsection (2), the words from "section 41" to "either way offence" are omitted.
Theft Act 1968 (c. 60)

32 In section 27 of the Theft Act 1968 (evidence and procedure on charge of theft or handling stolen goods), subsection (4A) is omitted.
Criminal Justice Act 1972 (c. 71)

33 In section 46 of the Criminal Justice Act 1972 (admissibility of written statements outside England and Wales), subsections (1A) to (1C) are omitted.
Interpretation Act 1978 (c. 30)

34 In Schedule 1 to the Interpretation Act 1978 (words and expressions defined)—
(a) in the definition of "Committed for trial", paragraph (a) is omitted,
(b) after the entry for "Secretary of State" there is inserted—
""Sent for trial" means, in relation to England and Wales, sent by a magistrates' court to the Crown Court for trial pursuant to section 51 or 51A of the Crime and Disorder Act 1998."
Magistrates' Courts Act 1980 (c. 43)

35 (1) The Magistrates' Courts Act 1980 is amended as follows.
(2) Sections 4 to 8 (which relate to committal proceedings) shall cease to have effect and the cross-heading preceding section 4 is omitted.
(3) In section 29 (power of magistrates' court to remit a person under 17 for trial to a juvenile court in certain circumstances), in subsection (2)(b)(i), for the words from "proceeds" to the end there is substituted "sends him to the Crown Court for trial under section 51 or 51A of the Crime and Disorder Act 1998; and".
(4) The following sections shall cease to have effect—
(a) section 97A (summons or warrant as to committal proceedings),
(b) section 103 (evidence of persons under 14 in committal proceedings for assault, sexual offences etc), and
(c) section 106 (false written statements tendered in evidence).
(5) In section 150 (interpretation of other terms), in subsection (1), the definition of "committal proceedings" is omitted.
(6) In section 155 (short title, extent and commencement), in subsection (2)(a), the words "8 (except subsection (9))" are omitted.
Supreme Court Act 1981 (c. 54)

36 (1) The Supreme Court Act 1981 is amended as follows.

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(2) In section 76 (committal for trial: alteration of place of trial)—
(a) in subsection (1), for the words from "varying" (where it first appears) to "to Crown Court)" there is substituted "substituting some other place for the place specified in a notice under section 51D(1) of the Crime and Disorder Act 1998 (a "section 51D notice")",
(b) in subsection (3), for the words "fixed by the magistrates' court, as specified in a notice under a relevant transfer provision" there is substituted "specified in a section 51D notice",
(c) subsection (5) is omitted, and
(d) in the heading, for "Committal" there is substituted "Sending".
(3) In section 77 (committal for trial: date of trial)—
(a) in subsection (1), for "committal for trial or the giving of a notice of transfer under a relevant transfer provision" there is substituted "being sent for trial",
(b) in subsection (2), for "committed by a magistrates' court or in respect of whom a notice of transfer under a relevant transfer provision has been given" there is substituted "sent for trial",
(c) in subsection (3), for "of committal for trial or of a notice of transfer" there is substituted "when the defendant is sent for trial",
(d) subsection (4) is omitted, and
(e) in the heading, for "Committal" there is substituted "Sending".
(4) In section 80 (process to compel appearance), in subsection (2), for "committed" there is substituted "sent".
(5) In section 81—
(a) in subsection (1)—
(i) in paragraph (a)—
(a) the words "who has been committed in custody for appearance before the Crown Court or in relation to whose case a notice of transfer has been given under a relevant transfer provision or" are omitted, and
(b) after "51" there is inserted "or 51A",
(ii) in paragraph (g), sub-paragraph (i) is omitted, and
(b) subsection (7) is omitted.
Police and Criminal Evidence Act 1984 (c. 60)

37 (1) The Police and Criminal Evidence Act 1984 is amended as follows.
(2) In section 71 (microfilm copies), the paragraph beginning "Where the proceedings" is omitted.
(3) In section 76 (confessions), subsection (9) is omitted.
(4) In section 78 (exclusion of unfair evidence), subsection (3) is omitted.
Prosecution of Offences Act 1985 (c. 23)

38 (1) The Prosecution of Offences Act 1985 is amended as follows.
(2) In section 7A (powers of non-legal staff), for subsection (6) there is substituted—
"(6) This section applies to an offence if it is triable only on indictment or is an offence for which the accused has been sent for trial."

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(3) In section 16 (defence costs)—
(a) in subsection (1), paragraph (b) is omitted, and
(b) in subsection (2)—
(i) in paragraph (a), for "committed" there is substituted "sent", and
(ii) paragraph (aa) is omitted, and
(c) subsection (12) is omitted.
(4) In section 22 (power of Secretary of State to set time limits in relation to preliminary stages of criminal proceedings), in subsection (11)—
(a) in paragraph (a) of the definition of "appropriate court", for "committed for trial, sent for trial under section 51 of the Crime and Disorder Act 1998" there is substituted "sent for trial",
(b) for the definition of "custody of the Crown Court" there is substituted—
""custody of the Crown Court" includes custody to which a person is committed in pursuance of—
(a) section 43A of the Magistrates' Courts Act 1980 (magistrates' court dealing with a person brought before it following his arrest in pursuance of a warrant issued by the Crown Court); or
(b) section 52 of the Crime and Disorder Act 1998 (provisions supplementing section 51);".
(5) In section 23 (discontinuance of proceedings in magistrates' court), in subsection (2), for paragraphs (a) to (c) there is substituted—
"(a) any stage of the proceedings after the court has begun to hear evidence for the prosecution at a summary trial of the offence; or
(b) any stage of the proceedings after the accused has been sent for trial for the offence."
(6) In section 23A (discontinuance of proceedings after accused has been sent for trial)—
(a) in paragraph (b) of subsection (1), the words from "under" to "1998" are omitted, and
(b) in subsection (2), for "51(7)" there is substituted "51D(1)".
Criminal Justice Act 1987 (c. 38)

39 (1) The Criminal Justice Act 1987 is amended as follows.
(2) Sections 4 to 6 (which relate to the transfer of cases to the Crown Court) shall cease to have effect.
(3) In section 11 (restrictions on reporting)—
(a) in subsection (2), paragraph (a) is omitted,
(b) subsection (3) is omitted,
(c) in subsection (7), "(3)," is omitted,
(d) in subsection (8), "(3)," is omitted,
(e) subsections (9) and (10) are omitted,
(f) in subsection (11), paragraphs (a) and (d) are omitted.
Criminal Justice Act 1988 (c. 33)

40 (1) The Criminal Justice Act 1988 is amended as follows.
(2) In section 30 (expert reports), subsection (4A) is omitted.
(3) In section 40 (power to join in indictment count for common assault etc), in subsection (1)—
(a) the words "were disclosed to a magistrates' court inquiring into the offence as examining justices or" are omitted,
(b) after "51" there is inserted "or 51A".

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(4) Section 41 (power of Crown Court to deal with summary offence where person committed for either way offence) shall cease to have effect.
Criminal Justice Act 1991 (c. 53)

41 (1) The Criminal Justice Act 1991 is amended as follows.
(2) Section 53 (notices of transfer in certain cases involving children) shall cease to have effect.
(3) Schedule 6 (notices of transfer: procedures in lieu of committal) shall cease to have effect.
Criminal Justice and Public Order Act 1994 (c. 33)

42 (1) The Criminal Justice and Public Order Act 1994 is amended as follows.
(2) In section 34 (effect of accused's failure to mention facts when questioned or charged), in subsection (2)—
(a) paragraph (a) is omitted, and
(b) in paragraph (b), for sub-paragraphs (i) and (ii), there is substituted "paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998".
(3) In section 36 (effect of accused's failure or refusal to account for objects, substances or marks), in subsection (2)—
(a) paragraph (a) is omitted, and
(b) in paragraph (b), for sub-paragraphs (i) and (ii), there is substituted "paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998".
(4) In section 37 (effect of accused's failure or refusal to account for presence at a particular place), in subsection (2)—
(a) paragraph (a) is omitted, and
(b) in paragraph (b), for sub-paragraphs (i) and (ii), there is substituted "paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998".
Criminal Procedure and Investigations Act 1996 (c. 25)

43 (1) The Criminal Procedure and Investigations Act 1996 is amended as follows.
(2) In section 1 (application of this Part), in subsection (2)—
(a) paragraphs (a) to (c) are omitted, and
(b) in paragraph (cc), the words from "under" to the end are omitted.
(3) In section 5 (compulsory disclosure by accused)—
(a) in subsection (1), for "(2) to" there is substituted "(3A) and",
(b) subsections (2) and (3) are omitted, and
(c) in subsection (3A), in paragraph (b), for "subsection (7) of section 51" there is substituted "subsection (1) of section 51D".
(4) In section 13 (time limits: transitional), in subsection (1), paragraphs (a) to (c) of the modified section 3(8) are omitted.
(5) In section 28 (introduction to Part 3), in subsection (1)—
(a) for paragraph (a) there is substituted—
"(a) on or after the appointed day the accused is sent for trial for the offence concerned,", and.
(b) paragraph (b) is omitted.
(6) In section 39 (meaning of pre-trial hearing), in subsection (1), for paragraph (a) there is substituted—
"(a) after the accused has been sent for trial for the offence, and".
(7) Section 68 (use of written statements and depositions at trial) and Schedule 2 (statements and depositions) shall cease to have effect.

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Crime and Disorder Act 1998 (c. 37)

44 The Crime and Disorder Act 1998 is amended as follows.
45 In section 52 (provisions supplementing section 51)—
(a) in subsection (1), after "51" there is inserted "or 51A",
(b) in subsection (5), after "51" there is inserted "or 51A",
(c) in subsection (6), after "51" there is inserted "or 51A", and
(d) in the heading, after "51" there is inserted "and 51A".
46 In section 121 (short title, commencement and extent), in subsection (8), before "paragraphs 7(1)" there is inserted "paragraph 3 of Schedule 3 to this Act, section 52(6) above so far as relating to that paragraph,".
47 In paragraph 3 of Schedule 3 (reporting restrictions)—
(a) in each of paragraphs (a) and (b) of sub-paragraph (1), for "Great Britain" there is substituted "the United Kingdom",
(b) in sub-paragraph (8), after paragraph (b) there is inserted—
"(bb) where the application made by the accused under paragraph 2(1) above relates to a charge for an offence in respect of which notice has been given to the court under section 51B of this Act, any relevant business information;",.
(c) after sub-paragraph (9) there is inserted—
"(9A) The following is relevant business information for the purposes of sub-paragraph (8) above—
(a) any address used by the accused for carrying on a business on his own account;
(b) the name of any business which he was carrying on on his own account at any relevant time;
(c) the name of any firm in which he was a partner at any relevant time or by which he was engaged at any such time;
(d) the address of any such firm;
(e) the name of any company of which he was a director at any relevant time or by which he was otherwise engaged at any such time;
(f) the address of the registered or principal office of any such company;
(g) any working address of the accused in his capacity as a person engaged by any such company;
and here "engaged" means engaged under a contract of service or a contract for services.",.
(d) after sub-paragraph (11) there is inserted—
"(11A) Proceedings for an offence under this paragraph shall not, in Northern Ireland, be instituted otherwise than by or with the consent of the Attorney General for Northern Ireland."
Youth Justice and Criminal Evidence Act 1999 (c. 23)

48 (1) The Youth Justice and Criminal Evidence Act 1999 is amended as follows.
(2) In section 27 (video recorded evidence in chief), subsection (10) is omitted.

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(3) In section 42 (interpretation and application of section 41), in subsection (3)—
(a) paragraphs (a) and (b) are omitted,
(b) in paragraph (c), after "51" there is inserted "or 51A".
Powers of Criminal Courts (Sentencing) Act 2000 (c. 6)

49 (1) The Powers of Criminal Courts (Sentencing) Act 2000 is amended as follows.
(2) In section 148 (restitution orders), in subsection (6), for paragraph (b) there is substituted—
"(b) such documents as were served on the offender in pursuance of regulations made under paragraph 1 of Schedule 3 to the Crime and Disorder Act 1998.""

On Question, amendment agreed to.

Schedule 3, as amended, agreed to.

Clause 40 agreed to.


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