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Lord Thomas of Gresford: My Lords, before the Minister leaves this topic, will he confirm that not only would budgetary considerations not come within the word "impracticable" but also matters of time, the court calendar, and so on, which may tempt a judge to deal with the matter rather more quickly than he otherwise would?
Lord Goldsmith: My Lords, I do not see any judge saying, "I think it is in the interests of justice to do it this way" just because it will mean that the case will finish on Thursday rather than Friday. I do not see that happening. A judge would have to be satisfied that it was appropriate to deal with it. He has to look at the nature of the case and the circumstances, with the appropriate sample counts, and decide whether it is in the interests of justice to do so. In my view, one can trust judges to apply the word "impracticable" properly.
That brings me to the third point—the difference proposed by the noble Lord, Lord Thomas of Gresford in Amendment No. 46. The amendment proposes the addition of a new condition that the,
- "evidence in respect of each count is admissible at the trial of the sample count".
As the noble Lord and others will know, the current position is that counts can be included on the same indictment, even though the evidence on each of them is not admissible on the other. That sometimes gives rise to issues in the course of the trial, and we have all seen that take place. The way in which this has been dealt with by the courts, particularly by the House of Lords in the well known case of Christou, is to say that the discretion of the trial judge to sever an indictment must be left unconstrained and should not depend upon any strict rules of admissibility of evidence.
That is why I come back to this point: the noble Lord, Lord Thomas of Gresford, and others consistently said during the course of the Criminal Justice Act that we really ought to trust judges more; we should recognise that they are well trained and experienced in using their discretion properly in the interests of justice. I have said that I am also of the view that we can trust judges. In those circumstances, I believe that we can perfectly well trust judges to know what a sample count is, which is what they are being asked to do. They will be very familiar with that concept; they can work it out for themselves. They do not need us to make their job more difficult by saying that before they reach that conclusion, they have to go through all the evidence and make sure it is admissible in that way.
On the three changes that are proposed, it is not necessary to include "the same or similar". Your Lordships have heard why I think that the word "impracticable" should remain as it is. Thirdly, the necessity of including an additional condition of admissibility of evidence is not necessary and makes the judge's job more difficult. We should trust the judges to apply this provision in a sensible way—the way that is intended.
Finally, I turn to the question asked by the noble Lord, Lord Carlisle of Bucklow, who asked what would happen if a subsidiary count was related to more than one sample count and there is a conviction on only one of the samples. That is one way in which
the example that he gave could have arisen. It is unlikely that a subsidiary count would be related to more than one count. The rational basis on which that could happen—when there is an acquittal on one count but a conviction on another—would be because the jury were satisfied that the course of conduct had taken place in relation to only one count. In that event, it would be for the judge to decide how to proceed.For my own part, taking the example that the noble Lord gave, if there are six counts in the first indictment, only one of which results in a conviction, I would anticipate that the trial judge would take the view that it would not be safe for him to conclude that the jury were satisfied that this was a repeated offence by the offender. It would not be safe to proceed to deal with the subsidiary counts on the basis that they were, broadly speaking, proved by the first count. However, it would be for the judge to decide and one would leave the matter to his discretion.
Lord Carlisle of Bucklow: My Lords, I am grateful to the Attorney-General because what he has said is helpful. He made it clear that one would not expect the judge to use the power he undoubtedly has—since he made the decision prior to the hearing—to try the other cases without a jury unless it is clear on the convictions of the jury as a whole that they have accepted that there was a series of offences rather than an individual offence. He made that clear.
Lord Goldsmith: My Lords, the difficulty of giving a categorical answer is that one would have to look at the circumstances of the trial, which only the judge would know. He would know whether the jury, in the course of the trial, had decided a specific offence in relation to one or two counts, perhaps in the early period. No doubt he would be able to interpret the verdicts. He may say, "What I interpret from this verdict, because of the way the case has been run, is that, although the false statements made in the early period of the trial were innocently false, the jury had obviously not accepted that they were made dishonestly. However, by their verdicts in relation to the later counts it is clear that, at least by April 2001, they are satisfied that he was acting dishonestly". In those circumstances, if the subsidiary counts all relate to that later period the judge could safely proceed on that basis. I offer that as an example of how the judge might interpret the verdict.
Baroness Anelay of St Johns: My Lords, I am grateful to all noble Lords who have supported the amendments that I proposed today. The noble Lord, Lord Borrie, asked why I had accepted the Government's assurance and then still said that changes needed to be made to the clause. Although I accepted the Government's assurance that the principle of what they were trying to do was one with which I concur, the way in which they drafted the provision means that we do not necessarily end up in the situation in which we would all hope to be.
I was not reassured by the assurance in a sense. There still needs to be some tweaking, but not major surgery on this part of the Bill.On the Attorney-General's rebuttal, he first attacked the issues over "the same or similar offences" and talked about indictment rules. The noble Baroness, Lady Scotland, also referred to the fact that indictment rules should be able to cover this matter. I have a similar approach to this question in Amendment No. 50. I will consider further what the Minister said with regard to my first amendment before we reach Amendment No. 50. I am not convinced by his rejection of my proffered solution of having "unmanageable" instead of "impracticable", because it has the advantages alluded to by the noble Lord, Lord Thomas of Gresford.
Although I do not intend press this amendment, which as I explained in the first instance, is part of a package solution, I still feel that the word "unmanageable" is better for the purposes of this Bill—in narrowing ways in which the jury trial would be obviated—than the word "impracticable". I do not in any way think that it criticises those people who would then be responsible for applying the terms of the clause in the real world. For me, it is not a case of an individual's capability being brought into question—that they cannot do the job—but whether the system as a whole can cope given all the other strains upon it. It is a case not of attacking individuals, but of questioning whether the system itself can always properly cope with the constraints upon it.
Although I will seek formally to withdraw this amendment, I give notice that when we reach Amendment No. 45, which we have covered by the debate on this group, I shall seek to test the opinion of the House. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 43 and 44 not moved.]
Baroness Anelay of St Johns moved Amendment No. 45:
- Page 6, line 36, leave out "impracticable" and insert "unmanageable"
The noble Baroness said: My Lords, I formally beg to move this amendment, and I wish to test the opinion of the House.
4.6 p.m.
On Question, Whether the said amendment (No. 45) shall be agreed to?
Their Lordships divided: Contents, 85; Not-Contents, 90.
Addington, L.
Allenby of Megiddo, V.
Ampthill, L.
Anelay of St Johns, B.
Astor of Hever, L.
Avebury, L.
Barker, B.
Blaker, L.
Bledisloe, V.
Bradshaw, L.
Bridgeman, V.
Brigstocke, B.
Brougham and Vaux, L.
Burnham, L.
Campbell of Alloway, L.
Carlisle of Bucklow, L.
Clement-Jones, L.
Coe, L.
Colwyn, L.
Cope of Berkeley, L. [Teller]
Craigavon, V.
Dholakia, L.
Eden of Winton, L.
Elton, L.
Erroll, E.
Fowler, L.
Glentoran, L.
Hamwee, B.
Harris of Richmond, B.
Higgins, L.
Hooper, B.
Hooson, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Hylton, L.
Jenkin of Roding, L.
King of Bridgwater, L.
Kingsland, L.
Laird, L.
Linklater of Butterstone, B.
Lyell, L.
McColl of Dulwich, L.
Maginnis of Drumglass, L.
Marlesford, L.
Mayhew of Twysden, L.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Molyneaux of Killead, L.
Monro of Langholm, L.
Monson, L.
Moynihan, L.
Naseby, L.
Newby, L.
Newcastle, Bp.
Northover, B.
Norton of Louth, L.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Park of Monmouth, B.
Perry of Southwark, B.
Rawlings, B.
Razzall, L.
Redesdale, L.
Rennard, L.
Renton, L.
Roper, L.
Russell, E.
Seccombe, B. [Teller]
Selborne, E.
Sharp of Guildford, B.
Shutt of Greetland, L.
Simon of Glaisdale, L.
Skelmersdale, L.
Smith of Clifton, L.
Steel of Aikwood, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomson of Monifieth, L.
Tope, L.
Trefgarne, L.
Walmsley, B.
Watson of Richmond, L.
Weatherill, L.
Williams of Crosby, B.
Alli, L.
Amos, B. (Lord President of the Council)
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bach, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Bhatia, L.
Blackstone, B.
Blood, B.
Borrie, L.
Bragg, L.
Brennan, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Carter, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Condon, L.
Corbett of Castle Vale, L.
Crawley, B.
Davies of Oldham, L. [Teller]
Dixon, L.
Dubs, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. (Lord Chancellor)
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Gale, B.
Gibson of Market Rasen, B.
Gilbert, L.
Golding, B.
Goldsmith, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grantchester, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Harrison, L.
Haskel, L.
Hayman, B.
Hilton of Eggardon, B.
Howarth of Breckland, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hoyle, L.
Janner of Braunstone, L.
Jordan, L.
Judd, L.
King of West Bromwich, L.
Lea of Crondall, L.
Lipsey, L.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Massey of Darwen, B.
Morgan, L.
Palmer, L.
Paul, L.
Pendry, L.
Pitkeathley, B.
Ramsay of Cartvale, B.
Rea, L.
Rendell of Babergh, B.
Rooker, L.
Sainsbury of Turville, L.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Sheldon, L.
Simon, V.
Smith of Gilmorehill, B.
Stone of Blackheath, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Temple-Morris, L.
Tenby, V.
Thornton, B.
Tomlinson, L.
Triesman, L.
Turner of Camden, B.
Warner, L.
Warwick of Undercliffe, B.
Whitaker, B.
Whitty, L.
Williams of Elvel, L.
Resolved in the negative, and amendment disagreed to accordingly.
4.17 p.m.
[Amendment No. 46 not moved.]
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