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Baroness Anelay of St Johns moved Amendment No. 11:

Leave out Clause 18.

The noble Baroness said: My Lords, in speaking to Amendment No. 11, I shall speak also to Amendments Nos. 12 and 13, which are consequential. These clauses were inserted by the Government at Report stage. They remove from the jury the decision as to whether the defendant is fit to be tried, and give that decision to the judge alone. I made it clear at Report that I was somewhat sceptical about the Government's proposal. I said that I would carefully consider the arguments put forward and return to the matter at Third Reading if I was not convinced that the removal of this decision from the jury was necessary and appropriate.

I listened carefully to the Minister's reasons for removing that decision from the jury. I looked at the Auld report, which had been prayed in aid by the Government as the reason for the proposal. Of course, I accept that this is one of many recommendations made by Lord Justice Auld. The Government have not accepted all of his proposals and I agree with them on that. This is one more proposal that should, for the moment, be allowed to lie quietly unadopted.

Since 1997, the Government have been working assiduously to remove lay people from the judicial system. I call to mind lay members of the Social Security Appeal Tribunal and now the proposed unified Asylum and Immigration Tribunal, let alone the original proposals in the Criminal Justice Act and its Mode of Trial predecessors.

The layman has a vital role to play in our judicial system, which should not be reduced unless there is a strong reason to do so. We have accepted that there are occasions when that role should be reduced. We accepted that in the clauses that have transferred to judge alone the trial of sample counts.

In the matter of unfitness to plead it is right that the decision should remain with the jury. It is a matter of public interest and a jury has the competence to make the decision appropriately. The result of a decision that someone is unfit to plead can be draconian. It can be a hospital order without restriction as to time. At this stage, I believe that the decision should remain in the hands of the jury. I beg to move.

Lord Thomas of Gresford: My Lords, we support the amendment. As the noble Baroness, Lady Anelay, said,

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it is very important that the public should have confidence in the system. In these cases, the position is that they are usually determined on the basis of medical reports, which very often are agreed but sometimes are conflicting, in which case evidence is called. The tribunal that determines whether the unfitness to plead is made out should be the jury. As the noble Baroness, Lady Anelay, said, the consequences of such a decision can be that a person can be locked up under a hospital order without any restriction as to time and is thereby deprived of his freedom.

Baroness Scotland of Asthal: My Lords, I am disappointed that the noble Baroness and noble Lord take that view. I am particularly disappointed that the noble Baroness should suggest that this clause seeks to remove lay people from the system. The clause has the effect of transferring responsibility to the judge to make the decision. However, noble Lords will note that the lay judgment remains in being because the jury still has a very powerful role.

Amendment No. 18 would remove a clause inserted during Report stage that would "streamline" the court process for vulnerable defendants who may be unfit to stand trial. The clause challenged makes changes to the Criminal Procedure (Insanity) Act 1964. The changes provide that the decision on whether a defendant is fit to plead to a charge should be taken by the judge and not by a jury.

I notice that the noble Baroness spoke only to the issue of jury trial and not to Clauses 19 and 20. The change is important to the efficiency of the court hearing where fitness is an issue. It is wasteful of court time and resources to have to convene two juries; that is, one jury to determine the issue of whether the defendant is fit to stand trial and, if not, another jury to determine whether he did the act or made the omission as charged.

It is not in the interest of vulnerable defendants to have to undergo a lengthy process involving two separate juries with the first having to hear evidence from at least two medical practitioners. The provision does not detract from the defendant's right to be tried by a jury. In the event that the defendant is found unfit to plead, a jury must still consider the facts of the case and acquit if not satisfied that the defendant did the act as charged. A finding that he did the act cannot lead to a conviction or punitive disposal.

I respectfully suggest that a jury is unlikely to be as well qualified as a judge to interpret the complex evidence of a professional nature. Moreover, under the new regime, if the defendant subsequently wishes to challenge a finding as to whether he is unfit to plead, he will have a judge's reasons for the conclusion under the new clause. That will help him to decide whether there is any basis for a successful appeal. Under the 1964 Act provision, which this amendment would restore, the jury has to give no reasons for its finding.

As the noble Baroness, Lady Anelay, has seen and read, the provision is a recommendation made by Lord Justice Auld. We do not think that it should stay on the shelf gathering dust. It has merit. It has been subject to

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consultation in the published consultation document accompanying the mental health Bill where it attracted support. It is too important to the courts and to vulnerable defendants to be delayed further. At best, it must be subject to considerable further delay if removed from the Bill.

Amendment No. 12 seeks to remove Clause 19, which was inserted at Report stage. I have grouped Clauses 19 and 20 with Clause 18. I do not know whether the noble Baroness is content with Clauses 19 and 20 and simply discontent with Clause 18. If I can assume that that is her position, I shall not deal with the other two clauses.

The time has come to deal with this issue. We do not think that it will be unjust. It is proper. As I said at Report, and I reiterate today, there are some real benefits. There would be a reasoned decision that is capable, in the interests of the defendant, of being challenged. He would still get the benefit of a jury to make the determination of fact, which is proper.

I know that the history of this House should have taught me otherwise, but I had hoped that this might have been a clause on which we would all gleefully agree. I have to express my disappointment.

Baroness Anelay of St Johns: My Lords, I am always sad to disappoint the Minister; naturally, nothing could be further from my objective.

However, I also do not want to disappoint those who seek to maintain a fair judicial system. I know that the Minister's objective is to ensure that there is a fair judicial system, but where we part company is on the question of whether a satisfactory case has yet been made as regards Clause 18. I should add that I am not addressing Clauses 19 and 20; my fire is directed towards Clause 18.

The Minister says that this will "streamline" the process for vulnerable people. There is also an argument that streamlining processes may prove to be a disadvantage in some circumstances. I hear what the noble Baroness says about the fact that a judge will be able to give reasons whereas a jury would not, but one could cite other circumstances where a jury trial might be thought inappropriate because reasons are not given. While I know that that is not what the Minister intends to imply, one has to consider the whole of the judicial system when seeking to assault one part of it.

As she did at the previous stage, the noble Baroness said that the jury might not be best placed properly to be able to deal with the evidence that might be adduced from medical reports. However, the great strength of a jury is that it is able to bring to its adjudication an understanding of what is right and wrong, and whether what it has been told is the truth. Members of juries are able to come to their decisions in such cases.

The noble Baroness also referred to the fact that this provision might have been included in the mental health Bill. As soon as we had sight of the first amendments tabled by the Government on this proposal, I took every opportunity to contact organisations that one would expect to have a direct interest in it. I know that the Minister has observed in

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the past that silence is consent, but I am not persuaded of that. I like to be sure that when serious changes are made, people are content. Despite my best efforts, I have still not heard whether people are content with the proposals. Since, despite repeated efforts, I have not directly received that response—it would have to come to me as the mover of the amendment—I am not in a position to agree that this particular clause should be put on the face of the Bill. As it stands today, therefore, I am not able to say whether Clause 18 should be included in the Bill.

If the House agrees that Clause 18 should not be added to the Bill and it is further discussed in another place, it may well be that further evidence comes to light. But I have to say that the scepticism I expressed when we considered this on Report has since hardened. Therefore, I seek to test the opinion of the House.

Baroness Scotland of Asthal: My Lords, I wish to rise before the noble Baroness resumes her place. On this occasion it is not a question of silence. I hope that I made it clear that the consultation document accompanying the draft mental health Bill contained these provisions. I understand that, within that consultation, they attracted support. This is not a question of silence; the consultation document indicated that there was positive support for these provisions.

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