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Baroness Scotland of Asthal moved Amendments No. 7:

On Question, amendment agreed to.

Clause 12 [Restraining orders: Northern Ireland]:

Baroness Scotland of Asthal moved Amendments Nos. 8 and 9:

    Page 7, line 42, at end insert—

"( ) After paragraph (6) of that Article insert—
"(7) A court dealing with a person for an offence under this Article may vary or discharge the order in question by a further order."" Page 8, line 10, leave out "(6)" and insert "(7)"

On Question, amendments agreed to.

Clause 13 [Application by prosecution for certain counts to be tried without a jury]:

Lord Thomas of Gresford moved Amendment No. 10:

    Page 9, line 11, after "person" insert—

"( ) evidence in respect of each count is admissible at the trial of the sample count,"

The noble Lord said: My Lords, Clause 13 introduces an entirely new concept to criminal law procedure: counts can be tried without a jury although they are those that can be tried on indictment only. The circumstance in which that can be done is when the judge determines that a particular group of counts are samples of other counts. The judge must be satisfied of three conditions: first, that a trial by jury involving all the counts would be impracticable; secondly, that each count or group of counts to be tried is a sample of counts; and, thirdly, that it is in the interests of justice.

25 Mar 2004 : Column 832

The Government could have left it at that but they decided to define the sample count in subsection (9) of Clause 13. My purpose is simply to clarify that it is indeed a sample count by the way in which we normally recognise a count to be a sample; that evidence in respect of each count is admissible at the trial of the second count.

When I raised the matter in Grand Committee the Minister was inclined to say yes but did not go that far. I do not know why I could not persuade her to say yes. On Report, the matter was dealt with more sternly by the noble and learned Lord the Attorney-General, who said that it would not be helpful to use the concept of admissibility as a condition for sample counts to be tried without a jury. The reason, he said, was that the judge would have to make a pre-assessment, in relation to the counts and the subsidiary counts, that that condition would be met. I do not seek to make it a condition; I have already referred to the three conditions. I seek to assist the Government in defining with clarity a sample count. As I have said, we have always understood it to be a count on which the evidence is admissible.

It is a simple matter. It puts the question of what is a sample count within certain well known, well defined boundaries and limits. When we are dealing with an entirely new and almost experimental procedure of trial, without a jury, of indictable-only offences, it is a sensible provision. I beg to move.

Baroness Anelay of St Johns: My Lords, I rise briefly, but the brevity of my comments should not lead one to underestimate the strength of my support for the amendment. It clarifies appropriately the definition of "sample count". In Committee and on Report, I demonstrated our general support for the changes that the Government seek to make. Although it might appear to others that we seek to weaken the role of the jury, we agree with the Government that we are not doing so. But some parts of the clause need to be strengthened in making the necessary changes. This amendment achieves just such an objective.

Baroness Scotland of Asthal: My Lords, of course I understand that the noble Lord, Lord Thomas of Gresford, wishes to assist the Government in defining clearly a sample count, and I hear the warm support given by the noble Baroness, Lady Anelay. However, I cannot usefully add much to what my noble and learned friend Lord Goldsmith, the Attorney-General, said on Report.

Evidence admissible in respect of sample counts is likely to be admissible in respect of the subsidiary counts because they will be extremely similar. It is important that the prosecution should be able to rely on evidence adduced in that part of the trial that was heard by a jury. However, it would not be appropriate to use admissibility, as this amendment does, as a criterion for whether counts were similar enough for one to be a sample of another. The question as to what can be regarded as a sample count is best left to judicial discretion.

25 Mar 2004 : Column 833

There is also the practical problem that it may not be clear at the time of the preparatory hearing whether evidence in respect of a count is admissible in respect of another count. We believe that in cases of this type, where a judge is considering whether a count is a sample of another, the judge can be relied upon to know what a sample count is. In essence, that is why we have not adopted the commission's proposal for cross-admissibility.

I hope that what I have said is helpful. I am sorry if my noble and learned friend was harder than I was in Committee, but as in all things I defer to his firmness.

Lord Thomas of Gresford: My Lords, with the institution of a new procedure such as this, it is important that there be bounds to it. If it is simply left to the judge's discretion, that discretion may be taken in a way beyond that which Parliament envisages and it may be supported in the Court of Appeal. Therefore, it seems right that this definition should be clearly before the judge when he makes his pre-assessment. If, at that stage, he cannot say whether the evidence is admissible between counts—whether there is cross-admissibility—the procedure should not be adopted; it is as simple as that. I feel strongly enough about the matter as to test the opinion of the House.

1.39 p.m.

On Question, Whether the said amendment (No. 10) shall be agreed to?

Their Lordships divided: Contents, 117; Not-Contents, 107.

Division No. 3


Addington, L.
Allenby of Megiddo, V.
Anelay of St Johns, B.
Astor, V.
Astor of Hever, L.
Avebury, L.
Beaumont of Whitley, L.
Biffen, L.
Blaker, L.
Blatch, B.
Bowness, L.
Bradshaw, L.
Bridgeman, V.
Brigstocke, B.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Byford, B.
Caithness, E.
Campbell of Alloway, L.
Carlisle of Bucklow, L.
Carnegy of Lour, B.
Clement-Jones, L.
Cobbold, L.
Colwyn, L.
Cope of Berkeley, L.
Craigavon, V.
Crickhowell, L.
Denham, L.
Dholakia, L.
Donaldson of Lymington, L.
Dundee, E.
Eden of Winton, L.
Elles, B.
Ezra, L.
Feldman, L.
Ferrers, E.
Gardner of Parkes, B.
Geddes, L.
Glentoran, L.
Goodhart, L.
Greaves, L.
Greengross, B.
Hamwee, B.
Hanham, B.
Harris of Richmond, B. [Teller]
Hayhoe, L.
Hodgson of Astley Abbotts, L.
Hooson, L.
Howe of Aberavon, L.
Jenkin of Roding, L.
Jopling, L.
Kimball, L.
King of Bridgwater, L.
Laird, L.
Lang of Monkton, L.
Lawson of Blaby, L.
Lester of Herne Hill, L.
Linklater of Butterstone, B.
Liverpool, E.
Livsey of Talgarth, L.
Lyell, L.
McColl of Dulwich, L.
MacLaurin of Knebworth, L.
McNally, L.
Maddock, B.
Mar and Kellie, E.
Methuen, L.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Molyneaux of Killead, L.
Montagu of Beaulieu, L.
Montrose, D.
Mowbray and Stourton, L.
Newby, L.
Northbrook, L.
Northesk, E.
Northover, B.
Park of Monmouth, B.
Peel, E.
Perry of Southwark, B.
Phillips of Sudbury, L.
Pilkington of Oxenford, L.
Plumb, L.
Plummer of St. Marylebone, L.
Rawlings, B.
Reay, L.
Redesdale, L.
Renton, L.
Rodgers of Quarry Bank, L.
Roper, L.
Rotherwick, L.
Sanderson of Bowden, L.
Seccombe, B. [Teller]
Selsdon, L.
Sharman, L.
Sharp of Guildford, B.
Shaw of Northstead, L.
Shutt of Greetland, L.
Skelmersdale, L.
Skidelsky, L.
Smith of Clifton, L.
Stern, B.
Stoddart of Swindon, L.
Strathclyde, L.
Swinfen, L.
Taverne, L.
Tenby, V.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Tordoff, L.
Ullswater, V.
Wallace of Saltaire, L.
Walmsley, B.
Wilcox, B.
Williams of Crosby, B.
Williamson of Horton, L.
Windlesham, L.


Acton, L.
Ahmed, L.
Amos, B. (Lord President of the Council)
Andrews, B.
Archer of Sandwell, L.
Ashley of Stoke, L.
Ashton of Upholland, B.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Bledisloe, V.
Boothroyd, B.
Boston of Faversham, L.
Bragg, L.
Brightman, L.
Brookman, L.
Burlison, L.
Campbell-Savours, L.
Carter, L.
Chan, L.
Christopher, L.
Clarke of Hampstead, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Crawley, B.
David, B.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Dixon, L.
Donoughue, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. (Lord Chancellor)
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Fitt, L.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Grenfell, L.
Grocott, L. [Teller]
Harrison, L.
Haskel, L.
Hayman, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howarth of Breckland, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jordan, L.
Judd, L.
King of West Bromwich, L.
Lea of Crondall, L.
Lipsey, L.
Lofthouse of Pontefract, L.
Macdonald of Tradeston, L.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
Marsh, L.
Masham of Ilton, B.
Massey of Darwen, B.
Merlyn-Rees, L.
Morris of Aberavon, L.
Morris of Manchester, L.
Nicol, B.
Pitkeathley, B.
Ponsonby of Shulbrede, L.
Randall of St. Budeaux, L.
Rendell of Babergh, B.
Rogers of Riverside, L.
Rooker, L.
Sainsbury of Turville, L.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Sheldon, L.
Simon, V.
Stone of Blackheath, L.
Strabolgi, L.
Symons of Vernham Dean, B.
Tanlaw, L.
Temple-Morris, L.
Tomlinson, L.
Triesman, L.
Turnberg, L.
Turner of Camden, B.
Warner, L.
Warwick of Undercliffe, B.
Weatherill, L.
Wedderburn of Charlton, L.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williams of Elvel, L.
Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.

25 Mar 2004 : Column 835

1.50 p.m.

Clause 18 [Unfitness to plead: procedure]:

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