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Lord Thomas of Gresford rose to move Amendment No. 11A, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 11, leave out "agree" and insert "disagree".
The noble Lord said: My Lords, I draw your Lordships' attention to the wording of Clauses 12(4) and 14(1). Clause 12(4) says of the sample count:
"The second condition is that, if an order under subsection (2) were made, each count or group of counts which would accordingly be tried with a jury can be regarded as a sample of counts which could accordingly be tried without a jury".
The phrase "can be regarded" appears again in Clause 14 and, indeed, in the Minister's speech. It is new Labour speak, I am afraid; it is rather like the Prime Minister saying "I can apologise for misleading the country about Iraq", but did he? Here again, if it,
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is it a sample, and by whom will it be regarded?
All we are seeking to do, in this very simple amendment, is to make it quite clear what a sample count is, as it has always been understood, and that it is the judge who takes the decision that he is the person who considers that the sample count is a sample of the other counts and not that it "can be regarded" as such. By whom? By the man on the Clapham omnibus? We are simply seeking clarification.
The noble Baroness referred to Internet fraud. That is no doubt a very modern thing. I recall prosecuting a case four or five years ago of some 300 people who had been defrauded in a mortgage scam. I think that a solicitor was one of the defendants. The sums involved—about £50,000—were not trivial. Statements were taken from those 300 victims; the police sent around a pro forma and had them all fill it in. I think we started with 30 counts in the indictment and, at the suggestion of the judge, we cut it down to 10. But every statement that had been obtained—the scam having been carried out in the same way—was evidence in the case in relation to those 10 counts. They were admissible on very well known principles and were samples of the criminality of the person concerned.
I fully recognise that, since the Kidd decision, which suggested that it would be wrong to sentence a person on sample counts if the other counts were not admitted, something had to be done. We do not object to the general principle behind this, but we object to the fact that the phrase,
is so wide that it could refer to things that are way outside the previously understood meaning of a sample count. For that reason, I beg to move.
Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 11, leave out "agree" and insert "disagree".—(Lord Thomas of Gresford.)
Baroness Anelay of St Johns: My Lords, I can be very brief, but my brevity does not reflect any lack of strength in my support. We remain unconvinced by the Government's argument; we do not see any mischief in the original amendment of the noble Lord, Lord Thomas of Gresford, with regard to subsection (9)(b). We believe that it is right to make certain that somebody cannot be convicted of an offence to be tried without a jury for large numbers of other offences that are not really linked to it.
We support the noble Lord, Lord Thomas of Gresford. We believe that his amendment would simply ensure that a sample count is exactly what the majority of legal practitioners would understand it to be. If the noble Lord is minded to test the opinion of the House, we shall support him.
Baroness Scotland of Asthal: My Lords, I hear what the noble Baroness says. I am disappointed that she should take that view, not least because it is absolutely clear on the face of the Bill that the person who will be
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responsible for exercising the discretion as to what will and will not be a sample count will not be the man on the Clapham omnibus, it will be the judge. The judge will decide, as the judge has always decided in these cases, whether these counts can properly be seen as a sample. I make it plain that I, for one, have total trust in the ability of our judges to make that decision soundly. If noble Lords opposite do not, it is a matter for them.
Lord Thomas of Gresford: My Lords, the noble Baroness says that with her tongue in her cheek because she knows that nobody has been more supportive of the judiciary and the discretion of the judiciary than we on these Benches, and me in particular, not to mention the noble Baroness, Lady Anelay.
I am not satisfied with that reply. I ask your Lordships to agree with my amendment, and I propose to test the opinion of the House.
On Question, Whether the said amendment (No. 11A) shall be agreed to?
Their Lordships divided: Contents, 84; Not-Contents, 96.
Addington, L.
Anelay of St Johns, B.
Astor of Hever, L.
Attlee, E.
Blaker, L.
Bonham-Carter of Yarnbury, B.
Bradshaw, L.
Brougham and Vaux, L.
Burnham, L.
Buscombe, B.
Byford, B.
Carlisle of Bucklow, L.
Carnegy of Lour, B.
Clement-Jones, L.
Colwyn, L.
Cope of Berkeley, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Donaldson of Lymington, L.
D'Souza, B.
Dundee, E.
Dykes, L.
Elliott of Morpeth, L.
Fearn, L.
Flather, B.
Glenarthur, L.
Hamwee, B.
Higgins, L.
Hodgson of Astley Abbotts, L.
Hooper, B.
Hooson, L.
Howard of Rising, L.
Howe of Idlicote, B.
Jenkin of Roding, L.
Kimball, L.
King of Bridgwater, L.
Kingsland, L.
Knight of Collingtree, B.
Laidlaw, L.
Linklater of Butterstone, B.
Livsey of Talgarth, L.
Lucas, L.
Luke, L.
Lyell, L.
Mackie of Benshie, L.
McNally, L.
Marlesford, L.
Masham of Ilton, B.
Mayhew of Twysden, L.
Michie of Gallanach, B.
Miller of Chilthorne Domer, B.
Monro of Langholm, L.
Montrose, D.
Morris of Bolton, B.
Neuberger, B.
Newton of Braintree, L.
Noakes, B.
Northover, B.
Norton of Louth, L.
Park of Monmouth, B.
Prashar, B.
Razzall, L.
Rennard, L.
Roberts of Llandudno, L.
Rogan, L.
Roper, L. [Teller]
Rotherwick, L.
Russell-Johnston, L.
Sandberg, L.
Seccombe, B.
Selsdon, L.
Sharp of Guildford, B.
Sharples, B.
Shutt of Greetland, L.
Skelmersdale, L. [Teller]
Smith of Clifton, L.
Thomas of Gresford, L.
Ullswater, V.
Walmsley, B.
Watson of Richmond, L.
Williams of Crosby, B.
Williamson of Horton, L.
Windlesham, L.
Acton, L.
Alli, L.
Amos, B. (Lord President of the Council)
Archer of Sandwell, L.
Ashton of Upholland, B.
Bach, L.
Bassam of Brighton, L.
Billingham, B.
Borrie, L.
Brennan, L.
Brooke of Alverthorpe, L.
Brookman, L.
Burlison, L.
Carter, L.
Carter of Coles, L.
Chan, L.
Clark of Windermere, L.
Corbett of Castle Vale, L.
Crawley, B.
David, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dixon, L.
Drayson, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Fitt, L.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Gilbert, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Griffiths of Burry Port, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Jones, L.
Judd, L.
Kirkhill, L.
Laird, L.
Leitch, L.
Lockwood, B.
McCarthy, L.
McDonagh, B.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
Mason of Barnsley, L.
Massey of Darwen, B.
Maxton, L.
Merlyn-Rees, L.
Mitchell, L.
Morgan of Drefelin, B.
Parekh, L.
Pitkeathley, B.
Plant of Highfield, L.
Radice, L.
Rendell of Babergh, B.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Scotland of Asthal, B.
Sewel, L.
Simon, V.
Smith of Leigh, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
Triesman, L.
Truscott, L.
Tunnicliffe, L.
Turnberg, L.
Turner of Camden, B.
Wall of New Barnet, B.
Warner, L.
Whitaker, B.
Young of Norwood Green, L.
Resolved in the negative, and amendment disagreed to accordingly.
2 Nov 2004 : Column 228
On Question, Motion agreed to.
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