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COMMONS AMENDMENT
9 After Clause 11, insert the following new clause—
"INCREASE IN MAXIMUM ON-THE-SPOT PENALTY FOR DISORDERLY BEHAVIOUR
(1) In Chapter 1 of Part 1 of the Criminal Justice and Police Act 2001 (c. 16) (on-the-spot penalties for disorderly behaviour), section 3 is amended as follows.
(2) In subsection (2) (maximum penalty that may be prescribed), at the end insert "plus a half of the relevant surcharge".
(3) After that subsection insert—
"(2A) The "relevant surcharge", in relation to a person of a given age, is the amount payable by way of surcharge under section 161A of the Criminal Justice Act 2003 by a person of that age who is fined the maximum amount for the offence.""

Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 9. I have spoken to this amendment with Amendment No. 8.

Moved, That the House do agree with the Commons in their Amendment No. 9.—(Baroness Scotland of Asthal.)

On Question, Motion agreed to.

COMMONS AMENDMENT
10 After Clause 11, insert the following new clause—
"HIGHER FIXED PENALTY FOR REPEATED ROAD TRAFFIC OFFENCES
(1) The Road Traffic Offenders Act 1988 (c. 53) is amended as follows.
(2) In section 53 (amount of fixed penalty), after subsection (2) insert—
(3) In particular, in relation to England and Wales an order made under subsection (1)(a) may prescribe a higher fixed penalty in a case where, in the period of three years ending with the date of the offence in question, the offender committed an offence for which—
(a) he was disqualified from driving, or
(b) penalty points were endorsed on the counterpart of any licence held by him."
(3) At the end of section 84 (regulations) (which becomes subsection (1)) insert—
"(2) The Secretary of State may by regulations provide that where—
(a) a conditional offer has been issued under section 75 of this Act,
(b) the amount of the penalty stated in the offer is not the higher amount applicable by virtue of section 53(3) of this Act, and
 
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(c) it subsequently appears that that higher amount is in fact applicable,
the fixed penalty clerk may issue a further notice (a "surcharge notice") requiring payment of the difference between the two amounts.
(3) Regulations under subsection (2) above may—
(a) provide for this Part of this Act to have effect, in cases to which the regulations apply, with such modifications as may be specified;
(b) make provision for the collection and enforcement of amounts due under surcharge notices.""

Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 10. I have spoken to this amendment with Amendment No. 8.

Moved, That the House do agree with the Commons in their Amendment No. 10.—(Baroness Scotland of Asthal.)

[Amendment No. 10A, as an amendment to the Motion, not moved.]

[Amendments Nos. 10B and 10C, as amendments to Amendment No. 10, not moved.]

On Question, Motion agreed to.

COMMONS AMENDMENT
11 Clause 12, page 8, line 11, leave out from "count" to end of line 17 and insert "may not be regarded as a sample of other counts unless the defendant in respect of each count is the same person"

Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 11.

Let me begin by reminding your Lordships what these provisions are for. Where offending consists of innumerable repetitions of the same offence there may be far more instances of it than can reasonably be included in a single indictment. The practice used to be for a defendant to be indicted for a number of sample counts. It he was convicted of them the court would then sentence him on the basis of all the offences. But this meant that the offences for which he was sentenced included some to which he had not pleaded guilty, of which he had not been convicted and which he had not asked to be taken into consideration.

For this reason the practice was disapproved of by the Court of Appeal in the case of Kidd in 1998. The present clauses provide a statutory replacement for the sample count procedure. It is not intended to widen its scope, nor will it result in any cases which now receive jury trial being denied it. The offences that will be tried without a jury will be the ones that could not now be tried at all. The new procedure is an improvement on the old because where a defendant has been found guilty of sample counts the court will not, as before, simply assume that he is guilty of the remaining counts but will proceed to try those counts in accordance with the evidence.
 
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In the debate at the Report stage in another place, Mr Douglas Hogg, the right honourable Member for Sleaford and North Hykeham, appeared to be somewhat concerned at the prospect of a judge who had heard the evidence in the first stage of a trial before a jury—and who would of course be aware that the defendant had been convicted—would then bring that knowledge to the second stage of the trial. This suggests a misapprehension about the purpose of this procedure. It is absolutely clear that where a defendant has been convicted of counts which are samples of other counts, it will be appropriate for the court to take account in the second stage of the trial both of the fact that he has been convicted and of any evidence adduced in the first stage that is relevant and admissible.

Conversely, a case where that would not be appropriate cannot be a sample count. But that is very different from applying a test of cross-admissibility, which is a bone of contention between us and noble Lords opposite. Your Lordships voted at Third Reading to add subsection (9) to this clause, a requirement for evidence admissible in respect of sample counts to be admissible in respect of subsidiary counts. There was a vote in Committee in another place to remove it, and an attempt at Report stage to reinstate it was defeated. Your Lordships have debated the issue in the past at some length, both on Report and at Third Reading, and it has been considered in another place. Nevertheless I should like to explain why we have consistently opposed the requirement for cross-admissibility and why we remain firmly of the view that such a requirement would be a mistake.

The risk is that using cross-admissibility as the criterion of whether counts were similar enough for one to be a sample of another might exclude some of the cases that we want to be subject to the two-stage process. Let me give an example. An offender is involved in an Internet scam whereby hundreds of victims are cheated of trivial sums of money; there is evidence of more than 600 transactions. Each transaction would constitute a separate count on the indictment and to include all of them would overload it.

The key issue in the case is whether or not the offender was dishonest. In other words, it is not in doubt that the transactions took place; the question is whether or not he had the dishonest intent. The prosecution would seek to make an application for a two-stage trial; 15 counts to be tried by jury and the rest to be tried by judge alone. If in order to obtain such an order the prosecution had to demonstrate that each count was cross-admissible, the court might apply a strict test of similarity or similar fact, which is commonly thought to be a test of degree. The case in the example may fail this test because evidence of dishonesty in respect of one transaction may have no probative value in respect of another different transaction. In other words, the evidence of the other transactions, while similar, may add no probative value to the main issue in the case, which is dishonesty.
 
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Another difficulty is that the test would have to be applied at the preparatory stage, which is when the decision about using the two-stage procedure is to be taken. It might not be clear at that point whether evidence in respect of a count would be cross-admissible in respect of another count. Yet another difficulty is that where there has been no conviction the court has no power to award compensation. Victims may miss out on compensation, therefore, where there are more offences than can be accommodated on the indictment.

We are of the view that in cases of this type where the judge is considering whether one count is a sample of another, the judge can be relied upon to know what a sample count is and that the question of what can be regarded as a sample count can best be left to judicial discretion. The expression is well known and understood from the days before the Kidd judgment. I know that the noble Lord, Lord Thomas of Gresford, will be familiar with this, as indeed will the noble and learned Lord, Lord Donaldson. As far as I am aware, the case involved no suggestion that the courts were taking an unduly broad view of the circumstances in which some counts could be regarded as samples of others. The objection to the former procedure was merely that it entailed assuming the defendant's guilt on the subsidiary counts rather than establishing it, which is what our clause now allows.

Subsection (9), therefore, leaves what is a sample count to judicial discretion. We have been persuaded, however, that the way in which the subsection was originally drafted had an unhelpful circularity about it. Clause 12(9) has therefore been amended so as to remove the circular definition. It simply provides that a sample count is not to be regarded as a sample of other counts unless the defendant in respect of each count is the same person, thus preserving the part of Clause 9 that arguably has a useful function.

I hope that that is clear. We are creating a new mechanism to allow us to do what we did very happily for a number of years with great utility and facility.

Moved, That the House do agree with the Commons in their Amendment No. 11.—(Baroness Scotland of Asthal.)

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