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12 Before Clause 17, insert the following new clause—
"PROCEDURE FOR DETERMINING FITNESS TO PLEAD: ENGLAND AND WALES
(1) The Criminal Procedure (Insanity) Act 1964 (c. 84) is amended as follows.
(2) In section 4 (finding of unfitness to plead), in subsection (5) (question of fitness to be determined by a jury), for the words from "by a jury" to the end substitute "by the court without a jury".
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(3) In subsection (6) of that section, for "A jury" substitute "The court".
(4) In subsection (1) of section 4A (finding that the accused did the act or omission charged against him), for "jury" substitute "court".
(5) For subsection (5) of that section substitute—
(5) Where the question of disability was determined after arraignment of the accused, the determination under subsection(2) is to be made by the jury by whom he was being tried.""
Baroness Scotland of Asthal: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 12. In relation to this group of amendments, the government amendments made in the other place seek to reinstate provisions removed at Third Reading in this House, which would streamline the court process for vulnerable defendants who may be unfit to stand trial. The change provides that the decision on whether a defendant is fit to plead to a charge should be taken by the judge alone, and not by a jury.
We understand the fears of those who have argued that the change reduces the protection of jury trial, but, with respect, we do not agree that it has that effect. A finding of unfitness does not enable any court disposal. It leads to a trial of the facts further to which there is a jury decision on whether the defendant did the act as charged. If the jury is not so satisfied, the court must acquit. Only if the jury finds that the defendant did the act is there a court disposal, and that disposal cannot be punitive. The court may order admission to hospital for treatment if medical evidence justifies that. If it does not, it may order supervision in the community or make an absolute discharge.
The proposal was made by Lord Justice Auld in his review of the criminal justice process. Its intent is to spare vulnerable defendants the lengthy process involving two separate juries, the first having to hear evidence from at least two medical practitioners. A jury is unlikely to be as well qualified as a judge to interpret complex evidence of a professional nature. Moreover, if the defendant subsequently wishes to challenge the finding, he will have a judge's reasons for the conclusion under the new clause. Under the 1964 Act provision, which this amendment would restore, the jury has to give no reasons for its finding.
The amendments tabled by the noble Baroness and the noble Viscount would remove the benefits of the judge's greater expertise, and need to give reasons, from precisely those cases in which the defendant might wish to challenge the decision. We know that the decision on fitness is not challenged in the great majority of cases.
The proposed amendment would leave the Government's intentions intact when there was no challenge. But the defendant stands to gain most when there is dissent, and we should not seek to exclude those benefits.
Lord Justice Auld's proposal is now four years old. We believe that it is too important both to the courts and to vulnerable defendants to be delayed further. It
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must, at best, be subject to considerable further delay if removed from this Bill. We commend the amendment to your Lordships.
Moved, That the House do agree with the Commons in their Amendment No. 12.—(Baroness Scotland of Asthal.)
Baroness Anelay of St Johns rose to move Amendment No. 12A, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 12, leave out "agree" and insert "disagree".
The noble Baroness said: My Lords, in moving the amendment, I shall speak to Amendments Nos. 12B, 13A and 13B. When we first debated these matters at Report, it was because the Government had inserted them into the Bill quite late in the day, but had tried to give this House as much advance notice as possible of the changes before Report. At that stage, as the Minister will recall, I sought to contact those organisations with a direct interest in representing the needs of people who could come within the remit of these clauses. The difficulty was that at that stage I was simply unable to get a response from them. The Minister felt that there had been official consultation; the difficulty was that I could not see any record of that, or response from the organisations.
At Third Reading there still had been no response, which was why I divided the House—because I felt that it was important to listen to the views of organisations such as Mind. By the time the Bill reached Second Reading in another place, Mind had issued its briefing, in which it said that it was,
"concerned at the absence of consultation about these changes, particularly in view of the commitments extended by the government on the consultation and scrutiny of the Mental Health Bill".
Mind also said in its briefing that it believed that the Government's proposals,
"will lead to an increase in unwarranted deprivation of liberty and an unfair criminalisation of people who are not of proven criminal liability".
I appreciate entirely the Minister's arguments, and that she believes that the interests of vulnerable people in those circumstances may be preserved by a judge having given reasons. I put against that the perception and experience of an organisation that represents people who will be subject to those proceedings. Will the Minister tell the House what conversations the Home Office has had with Mind in the course of the summer on these matters?
My concern is that there has been no response from the Government, although Sandra Gidley in another place quoted the briefing at Second Reading (at col. 575 of the Official Report of 14 June) and my honourable friend Cheryl Gillan in Committee also referred to it (at cols. 202 to 203 of the Official Report of Standing Committee E of 29 June). Such references were simply not recognised in the response by Mr Goggins or, at Second Reading, by Mr Blunkett, the Home Secretary.
Today, I introduce an amendment—Amendment No. 12B—which addresses the need of the Government to achieve some form of administrative
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convenience, and yet balances that against the need for vulnerable people still to have the assessment of a jury at an appropriate time. That is set against the background, as the Minister will know, of the fact that this House is always wary of any measures that nibble into the role of the jury.
The noble Baroness said today, and has said before, that because the measure is in the Auld report and that was published four years ago we had better introduce it. As my honourable friend Cheryl Gillan pointed out in another place, this particular proposal took up about two small paragraphs in the Auld report. There really has not been a thoroughgoing justification for the proposal.
With regard to administrative convenience, Mind makes the point that the issue of fitness to plead is not a simple procedural matter but one that goes to the heart of the issue of culpability. This factor does not weigh significantly against the core principles in favour of retention.
With regard to stress on the vulnerable individual, Mind states that it does not believe that the additional impact of a change in the composition of the jury would make more than a marginal impact on the defendant and there is no case for weighing this assumed stress against the importance of retaining the jury.
If the Government wish to press ahead, my Amendment No. 12B would seek to offer them a way in which we might resolve this matter so that the jury would be retained to make the decision only in those circumstances where there is a challenge as to fitness to plead. I refer to a question to which the noble Baroness's colleague in another place, the Minister, Mr Paul Goggins, replied. The question was asked by the noble Baroness's noble, or rather honourable, friend Vera Baird. She is not noble yet, but perhaps she will be after the next election, not that I would wish Redcar a different Member of Parliament although I wish that she would change her party. However, I certainly admire her.
This amendment came from Vera Baird. It would mean that in 10 per cent of the cases that are challenged the jury could be retained. In another place Vera Baird was rather coy about the origin of the amendment. I quite agree with her that it was a suggestion and that she never tabled the amendment. She was a loyal Back-Bencher; she suggested the amendment but did not table it. Paul Goggins' response was simply to brush it aside. He said that the Government did not want it because that was not the way they wanted to tackle the matter. The noble Baroness has gone slightly further today but she has not as yet met my principles on this matter sufficiently to persuade me that we should not proceed with my Amendment No. 12B.
Moved, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 12, leave out "agree" and insert "disagree".—(Baroness Anelay of St Johns.)
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8.15 p.m.
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