Criminal Justice Bill

Public Bill Committee, 25 February 2003.

Standing Committee B

Clause 262 - Arrangements for assessing etc risks posed by certain offenders

Graham Allen (Labour, Nottingham North)

I beg to move amendment No. 746, in

clause 262, page 145, line 28, leave out 'and'.

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss the following amendments:

No. 747, in

clause 262, page 145, line 31, at end insert—

'(i) every Local Education Authority any part of whose area falls within the relevant area, and

(j) the leisure department of every local authority whose area falls within the relevant area.'

No. 979, in

clause 262, page 145, leave out lines 32 and 33.

No. 999, in

clause 262, page 145, line 32, leave out 'or removing'.

Graham Allen (Labour, Nottingham North)

It is a great joy, as always, Mr. Cran, to see you in the Chair.

Amendments Nos. 746 and 747 were suggested to me by the National Society for the Prevention of Cruelty to Children. I hope that the Minister will respond to them sympathetically. Although the proposal to place an obligation on a range of authorities to co-operate in the assessment and management of sex offenders is welcome, the amendments seek to ensure that the duty to co-operate is extended to include the education and leisure departments of every local authority. Those departments are ideally placed to safeguard children and assist in the management of sex offenders in the community, and they should not be excluded from the multi-agency public protection arrangements.

I hope that the Minister will consider these two minor amendments in the spirit in which they are put. If he cannot accept them today, perhaps he will give an undertaking to consider them and come up with something suitable for all parties.

Dominic Grieve (Conservative, Beaconsfield)

I should like to speak to amendment No. 979, which would leave out subsection (7). Subsection (6) lists the authorities and persons referred to in subsections (3) to (5) whose job is to establish arrangements for the purpose of assessing and managing the risks posed in their areas by released offenders.

Subsection (7) provides that the Secretary of State can amend subsection (6) at will by

''adding or removing any person or description of person''.

If the Secretary of State can do that, why do we need subsection (6)? Frankly, if he can produce a list at any time and without any sort of approval process, why bother to set out in subsection (6) a list of those who have to establish such arrangements? On the other hand, if the Government propose that the list should be substantially fixed, the Minister needs to justify providing the Secretary of State with that power. The Committee could at least be confident that the power would not be used in a way that could lead to names or institutions being added to the list unjustifiably. It is a simple point.

Hilary Benn (Labour, Leeds Central)

The two sets of amendments fit together rather well, because my response to amendment No. 746 will illustrate that the power given under subsection (7), which the hon. Member for Beaconsfield (Mr. Grieve) wants removed, is a sensible power to have.

First, the multi-agency public protection arrangements represent a step forward. The more that I have learned in the last nine months about the work that the agencies undertake, the more I have been impressed by the care and consideration that they give to the task of managing the risks presented to the public by violent and sexual offenders. It has been a sensible step forward. The co-operation between the police and the probation service has been outstanding in some cases. I recommend Committee members to meet those involved in their local MAPPAs, and to talk to them about the way in which they undertake the work. I have been very impressed by what I have seen.

My hon. Friend the Member for Nottingham, North (Mr. Allen) has suggested two other possible organisations to which the duty to incorporate might be extended. Although the Bill already includes some scope for involving education authorities, through the duty to incorporate on youth offending teams—of which, my hon. Friend will be only too well aware, education departments form part—there is merit in extending the scope to include education authorities in their own right. While they will not be routinely involved in the assessment and management of the risks posed by sexual and violent defenders, their professional contribution could occasionally be significant. If my hon. Friend will withdraw his amendment, I shall undertake to return to the matter on Report.

I am not, however, convinced in the same way about local authority leisure departments. If my hon. Friend is thinking of the requirement placed on some offenders not to go near a swimming pool or leisure centre, the powers already exist to ensure that that can form part of appropriate licence conditions. There is already close co-operation between the police and the probation service and those managing leisure facilities to ensure that they are made aware of such licence conditions and can exchange information; there does not need to be a statutory requirement. That brings me to the point made by the hon. Member for Beaconsfield. The order-making power is subject to the affirmative resolution process; the Secretary of

State cannot wake up one morning and decide to add a few people to the list.

Having seen the amendment tabled by my hon. Friend and agreed that there is a case in relation to education departments, I accept that, as we learn from the operation of MAPPAs, we might wish to add to the list. There might be structural or organisational changes to the names or functions of the bodies listed in subsection (6) that would make it sensible, in the interests of public protection, to have the power to amend the list or to add to it, other than by primary legislation. That is the reason for subsection (7). I hope that, given the safeguard of the affirmative order procedure, my hon. Friend will understand the need for it and will not press the amendment.

Graham Allen (Labour, Nottingham North)

Last Thursday, I took my daughter to the Mansfield water park, not far from the constituency of my hon. Friend the Member for Bassetlaw (John Mann). Families who were taking young children out to the pool were being warned by the lifeguards not to take photographs of their children swimming with mums and dads. It is sad that, with photographs now able to be taken by telephone as well as by camera, we are in that situation. That is one of the things that the NSPCC had in mind when it suggested the amendments. I know that the Minister feels strongly about the issue. He has given a full and helpful explanation as to where the Government are coming from, and I hope that he will continue a correspondence with the NSPCC to ensure that any loopholes are closed.

David Heath (Liberal Democrat, Somerton and Frome)

This business about photographs is becoming a mania across the country. Public authorities are behaving in an extraordinary way. Someone has to get a grip and give clear guidance about what is appropriate in terms of regulation.

Graham Allen (Labour, Nottingham North)

It is indeed a sad state of affairs, but such attitudes are none the less prevalent at the moment. People are being cautious, sadly for good reason.

Dominic Grieve (Conservative, Beaconsfield)

This is not an issue over which guidance is required: it is an issue of common sense. There has been a tendency to stir up a climate of fear so much that rational thought processes have been thrown out of the window.

Graham Allen (Labour, Nottingham North)

Even down to any one of us now being loth to comfort a child who is in obvious distress, because of how that might be interpreted. We must all be extremely careful in those situations. With those remarks, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Humfrey Malins (Conservative, Woking)

Welcome back to the Chair, Mr. Cran.

The Minister owes us a duty to say a little bit more about the background to the clause and how it will operate. I wish to pose questions on a number of issues

that I hope he will deal with when he winds up the debate on this important clause.

As I understand it, the clause says that the responsible authority for an area, which consists of the police, the probation service and the Minister, must set up a team of people to assess and manage the risks that certain offenders in their area pose. Life is full of teams: everywhere one looks in the criminal justice system there is a team involved, and the proposed team is one more. My immediate reaction is that there is potential for an increase in bureaucracy. Getting together no fewer than eight or 10 different groupings might be a bureaucratic nightmare.

Has the Minister given any thought to the likely cost involved to each of the services concerned? In Surrey and in the south-east, the probation service and the police are heavily punished by the Government's movement of money away from the south-east grant towards the north of the country, to help their friends there. We are suffering desperately in the south. Has the Minister assessed the impact on, for example, the Surrey police grant? What extra money is likely to be needed to pursue the exercise? Similarly, what extra costs and work will be involved for the probation service, the primary care trusts, and so on? Could the Minister comment on the important issues of extra bureaucracy, work and cost?

Could the Minister also tell us what will happen in practice? Even after First and Second Reading, I am still not entirely clear on what will happen, and I am not sure what an area is. Subsection (2) refers to ''each area'', but in subsection (5) there is reference to a ''relevant area''. For the purpose of setting up the groups, is an area a county, a borough or a district? In my constituency, will the area covered be by reference to Woking borough council or to the county of Surrey? If the answer is the latter, the chief constable is presumably the officer responsible. However, if the relevant area is a borough, will that person be the commander of the borough?

Could the Minister also tell us what will happen in practice? A lot of people, from the ''youth offending team'' in subsection (6)(a) to everyone else

''who is designated by the Secretary of State''—

that is to say, anybody in the whole world—will presumably have to get together. However, the clause does not tell us much more. What will those people do when they get together? I searched diligently to find out, and a later clause tells us that they will have to prepare an annual report. Well, I'll be damned—an annual report. But what does that mean? I assume that the Minister will show me a report. Will those people draw up a list of offenders? Will they have executive power over them? What powers and duties will lie on them?

As you will have spotted, Mr. Cran, a later clause makes it clear that those deemed to be violent offenders will include persons who are convicted of an offence under schedule 11, which we debated some weeks ago, and those who are sentenced to more than 12 months' imprisonment. We shall come later to an amendment that I have tabled on the issue, but does the Minister have any concept of how many people in

Surrey, for example, have been given a sentence of more than 12 months? That is the standard sentence for the least serious violent offences nowadays. Someone who thumps their partner and goes before Guildford Crown court will be inside for 12 months. Similarly, someone who is involved in a minor brawl outside a pub in Surrey might well get 12 months. That is the bottom end of the market.

Will there be a register of such people? A huge number of people, including anyone who gets more than 12 months, may have to be monitored, taken care of and, in other ways, cajoled by the groups specified in the clause. I therefore have a series of specific questions for the Minister, and I should be grateful if he would write to me about them. How many people received a 12-month sentence from any court in each of the Surrey boroughs last year? How many received such a sentence in the county of Surrey? How many people received one nationally?

I am concerned about the volume of people who commit one-off, downmarket offences and who should not be on a register, but who find themselves being monitored by a large number of people because they are assessed as being violent offenders. The general public's understanding is that such people are not a danger to them, and the clause is, surely to goodness, meant to cover those who are a serious danger, such as serial violent offenders. They constitute a much smaller group than that envisaged in the clause, which includes everyone who is sentenced to more than 12 months. What will the bodies specified in the clause actually do? What will their powers be? What benefits will they bring to the community that they serve?

I notice that the Secretary of State can specify anyone he likes. Has the Minister thought about whether to include people from the world of education, such as county education group or officers? There are people in education departments who are familiar with the incidence of violence among young people. I suppose that the Minister thinks that the clause is a brilliant one, which will make a difference to the world, and I should like to hear why he thinks so.

Hilary Benn (Labour, Leeds Central)

My first response to the hon. Gentleman is, why read the clause when we can read the book? As I am sure he is aware, the clause re-enacts, with amendments, provisions in the Criminal Justice and Court Services Act 2000, which made arrangements for the establishment of multi-agency public protection arrangements. I use the phrase ''read the book'' because they have been in existence now for nearly two years. The document that I waved during the course of the hon. Gentleman's remarks, although I did not want to put him off his stride, was the first annual report of the MAPPAs. The national report, which describes how the arrangements work, and the local reports, covering each of the 42 areas, were placed in the Library. To answer the hon. Gentleman's first question, those are police and prevention areas—they are coterminous.

The clause re-enacts what has already been provided for and is already working. In responding to the debate on the amendments, I urged hon. Members to go to see the work in practice. That is the best answer to the hon. Gentleman's questions. If he gets the chance to talk to the people who are now making the arrangements work, I think that he will be greatly reassured on some of his concerns about potential bureaucracy. The provision is not about bureaucracy.

I recently attended a meeting with the Bedfordshire probation service. Around the table were representatives of the police, the probation service and people who work with victims. We went through three case studies of offenders whom they had been supervising under the MAPPA arrangements. That had nothing to do with bureaucracy and everything to do with practical ways of preventing further distress to the victims from the offender's subsequent actions, and minimising the risk from the offender to those victims and the public. I believe the approach to be a step forward, and I believe that it is working. It has not created the difficulties that worry the hon. Gentleman. However, he need not take my word for it, but can visit the local team. I am sure that they would be delighted to see him or any members of the Committee.

I agree with the hon. Gentleman's point about education involvement. That is why in debating the amendment I said that I thought it would be sensible for education authorities to be added to the list in subsection (6), and undertook to return to the issue on Report. The clause, in essence, provides that the principal authorities would be the police, the probation service and the Prison Service. Co-operation and communication between those three agencies is vital to enable the arrangements to work. However, the organisations and bodies listed in subsection (6) should have a duty to co-operate. The nature of that co-operation will depend on the offender with whom the MAPPA is working.

David Heath (Liberal Democrat, Somerton and Frome)

Perhaps the Minister can settle a point in my mind. I am sure that the arrangements work well practically, but I see nothing in the provisions to relate an individual offender to an individual responsible authority, whether that is defined by a court disposal, a place of residence or some other means. I am sure that I am missing an obvious point, but I cannot see how that is dealt with.

Hilary Benn (Labour, Leeds Central)

We shall come in a moment, in clause 264, to the range of persons who fall within the remit of clause 262. As to residence, in practice the MAPPA will be responsible for the people residing in its area. That is precisely why the duty of responsibility for overseeing the arrangements now extends to the Prison Service—which is not the case under the Criminal Justice and Court Services Act 2000—precisely because a person may be in a prison in one part of the country, but he may be returning to a local community located elsewhere. It is important that the Prison Service communicates effectively with the local MAPPA, once it is known where that prisoner, having been released, is due to reside, and ensures that all the relevant information that the prison has on that

person is passed to the MAPPA to aid it in its supervision.

David Heath (Liberal Democrat, Somerton and Frome)

I do not want to labour this point, but I still do not see the point at which a person is identified as the responsibility of a relevant authority for that purpose. Moreover, that person may reside in one area but have a sphere of activity in another: if he lived in Frome, for instance, and spent his time hanging round Warminster in Wiltshire, what are the arrangements to ensure that all relevant authorities are both aware and have an involvement in the management of the case?

Hilary Benn (Labour, Leeds Central)

That is a fair point. If someone crosses an area boundary, it is for the MAPPAs in the two areas in which that person is living, working or associating to co-operate to ensure that the arrangements in place to manage the risk that such persons present work effectively. I repeat that it is a practical arrangement directed at managing those who present a risk. Which people will come within its purview? As the Committee will see when we come to clause 264, they are persons who have committed a schedule 11 offence and have been subject to one of the penalties specified in clause 264(3).

In practice, the MAPPA grades all those who come within its responsibility. There are what are described as the critical few, that is, the highest risk, seriously dangerous, sexual and violent offenders, with whom enormous care will be taken by the MAPPA. There are those who are regarded as medium to high risk. Finally, the vast bulk will be managed by the ordinary supervision—for example, for probationers, the supervision to which they would be subject in any case. The arrangements allow the MAPPA to make a judgment based on the knowledge and information held about individuals in the interests of public protection.

If the figures are available, I undertake to reply to the hon. Member for Woking (Mr. Malins) about Surrey. I hope that I have been able to offer the Committee some reassurance and I recommend hon. Members to read the annual report describing how the arrangements are working overall, and the area report for their own area. I believe that the arrangements that are already in statute and operating, which are amended in the clause in the way that I have described, represent a practical step forward for public protection. We still have things to learn, and the recent inspection report of the MAPPAs showed that there were issues that needed to be addressed. The interpretation of risk differs from area to area, and that is one of the things that the inspector said needed to be addressed. The arrangements are a step forward compared with what we had before. We need to build on what we have done, and I hope that the Committee will agree to the clause.

Question put and agreed to.

Clause 262 ordered to stand part of the Bill.

Clause 263 - Review of arrangements

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 980, in

clause 263, page 146, leave out lines 9 and 10.

This is a probing amendment to ask the Minister to explain how the appointment of lay advisers works—I assume that such a system has been working under the existing scheme—and how they drawn from the community and identified. It is an extremely satisfactory idea, but as we are about to put it into statutory form, it would be useful to establish the role that they play and how they are identified.

Humfrey Malins (Conservative, Woking)

I have one query about the lay advisers. No doubt they already exist, and I do not want to fall into the trap of being referred to a previous book, which I should have read. Does the Minister know what fees might be paid to them? Is it just a matter of expenses or will there be a rate equivalent, for example, to that for a recorder or assistant recorder? Will it be a daily or an annual rate? What will be the extent of their commitment in days or weeks per year, and what will be the total burden on the public purse?

Hilary Benn (Labour, Leeds Central)

I am grateful to the hon. Member for Beaconsfield for having tabled the amendment, because it gives me the opportunity to describe the background. The aim of the clause is to enhance public understanding of, and confidence in, the arrangements that we have been debating. It arose from the discussions that my right hon. Friend the Home Secretary had with the parents of Sarah Payne at a time when, hon. Members will remember, there was a vigorous campaign for the introduction of Sarah's law, a crusade to reveal the identity and whereabouts of all sexual offenders. Having given the matter very careful consideration, the Home Secretary came to the view that that would not help us to protect children. That is the argument. All the evidence shows that if Sarah's law were to exist, it would drive sex offenders underground. If sex offenders are underground and change addresses, the people charged under these clauses with managing the risk that they pose will have a much more difficult task, and that will not help us to protect children.

However, we recognise that there is a need for greater public understanding of and confidence in the measures that we have in place. We have, therefore, developed the idea of appointing two lay members to MAPPAs to take part in strategic management boards. The hon. Gentleman is right that in eight pilot areas—Dorset, Hampshire, Surrey, Greater Manchester, Durham, Cumbria, South Wales and West Midlands—we advertised for people to put themselves forward. A rigorous selection system was established to ensure that the people who were appointed had the skills that could contribute to the posts. They took up their positions this month, following a training programme. It is still early days, but the pilot arrangements are being formally evaluated by Manchester university and that evaluation will help us to implement the Bill. The lay advisers will be paid expenses and, where necessary, reimbursed for loss of earnings. I hope that that is of assistance.

The same principle applies here as in other instances of oversight of public administration in which lay members are involved. They will bring a perspective

that professionals might not have. Their job will not be to decide what the licence conditions are in each case. That is why they will take part in the strategic management board that will, generally, meet quarterly. Working with others who form the MAPPA, they will satisfy themselves that effective arrangements are in place in the area for managing the risks that might be posed.

David Heath (Liberal Democrat, Somerton and Frome)

It occurs to me that if the intention is to provide not only an input into the process but a reassurance to the community, we should recognise that there is a great difference between, for instance, the Greater Manchester police and the City of London police, in terms of work loads and the communities that the advisers will represent. There are huge geographical areas and different communities in some police authority areas. In Avon and Somerset, inner-city Bristol is rather different from Exmoor in terms of the communities that are represented. In some cases there will be a congregation of offenders, simply because of the location of institutions. I am thinking, for instance, of the Isle of Wight in the context of Hampshire. I worry that we are giving the lay people in some areas the impossible task of adequately representing those communities, if indeed they are held to have a representative function.

James Cran (Conservative, Beverley and Holderness)

I did not interrupt, because the point was important, but that was more a speech than an intervention.

Hilary Benn (Labour, Leeds Central)

Thank you, Mr. Cran. The hon. Gentleman is right to say that the sizes of the populations covered by the different areas vary greatly, Greater London being the largest area. However, that is not relevant to the general principle that the clause establishes. The two lay advisers do not manage the total case load, but satisfy themselves, working with police, the probation service, prisons and others, that effective arrangements are in place. The concept of representative capacity is interesting. The lay advisers are there in one sense on behalf of the community of the area, to say, ''We are two lay people. We are not professionals involved in the management of these risks, but we have been asked to undertake this role in order to bring the background, experience and skills that we have.'' In the same way, we ask lay people to do such things in relation to the magistracy, training, school governing bodies and lots of other functions in society. I believe strongly that this is a positive step forward, because lay people can bring an invaluable range of skills, knowledge and experience to the arrangements and ask questions that might not necessarily be asked by the other professionals around the table.

The step proposed is modest and came out of the circumstances surrounding the tragedy of the Sarah Payne case. I think that it was the right response to that case. The wrong response would have been to make names available, which, for the reasons that I gave, would not help us to protect children. We want to reflect on how the proposal goes, which is why we are piloting it in eight areas. The people have only just begun and have not even been in post for a month yet. I hope that when we have a chance we shall see from

the evaluation that the process works successfully. We shall then be able to extend the provision of lay advisers to all the areas, for the reasons that I have tried to argue.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister. This has been an interesting short debate on an important topic. There is a slight anxiety—I detected it in the Minister's response—about the extent to which lay people can be seen as representative of the community. One of the reasons for putting them there was undoubtedly the response to the Sarah Payne case. It has always been my view that if lay people are to make an impact and scrutinise the activities of professionals, they must have considerable skills of their own, drawn from their activities or background. Otherwise there is a serious danger of what used to be the case with school governors—I think that it is no longer the case—whose role in many state schools was to be little more than a rubber stamp for decisions taken by others. I am thinking back 15 or 20 years, when I was a school governor of inner London schools. I thought that the role of governors was largely decorative and that they had no real impact on the school environment at all. That was in the days of the Inner London Education Authority.

I have the same slight anxiety in the present case, and look forward to having a bit more detail about the lay membership of the bodies in question. It would be useful in due course to know a little more about the backgrounds of the lay members and what expertise they will contribute. If that information can be made available, it would be helpful.

I thank the Minister for explaining how the arrangements are working at present and I hope that they succeed. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 263 ordered to stand part of the Bill.

Clause 264 - Section 262: interpretation

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 936, in

clause 264, page 146, line 29, leave out

'an offence specified in Schedule 11'

and insert 'a serious violent offence'.

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss the following amendments:

No. 1001, in

clause 264, page 146, line 33, leave out '12 months' and insert '3 years'.

No. 981, in

clause 264, page 146, leave out lines 34 and 35.

No. 1000, in

clause 264, page 146, line 35, leave out '12 months' and insert '3 years'.

No. 982, in

clause 264, page 146, leave out lines 42 and 43.

David Heath (Liberal Democrat, Somerton and Frome)

I do not intend to repeat our earlier debate on schedule 11, other than to say that the range of offences that it covers is extremely wide. The hon.

Member for Woking said that, as a starting point, the threshold is fairly low. It is clear that there needs to be consistent and proper management of people who pose a real risk to the community. It is not a supportable contention that all people convicted of offences listed under schedule 11 and who have received a sentence of 12 months or more are likely to pose a genuine risk to the community. This debate is an extension to the argument that has already been advanced, and as such may be considered to be redundant, given that we have lost that argument to the Minister. The mechanism should identify the most serious offenders and not spread the net so wide as to clog up the system with many people who have nothing to do with the safeguards inherent in the Bill.

Humfrey Malins (Conservative, Woking)

Amendments Nos. 1000, 1001, 981 and 982 are no more than probing amendments, so we will not push them to a Division. They relate to the issue raised by the hon. Member for Somerton and Frome (Mr. Heath) about the threshold that one has to cross to be part of clauses 262 to 264. My judgment is that the persons who should be subject to those provisions should be those who pose a genuine threat to the community in which they live and perhaps work. The more persons in the group, the less attention can be paid to each of them individually.

We should ask which group of people pose a threat to our community and which the community needs to monitor, hence amendment No. 1001, which would mean that the provisions applied to those sentenced to three years or more, rather than only 12 months. I could have equally proposed periods of five years or two years, but I am sure that the Minister will understand those of us who argue that we must monitor serious offenders. Naturally, our instinct is that serious sexual offenders must be monitored by the community and the clause may do a good job in that regard. We feel the same about people who constantly, or even on a one-off occasion, are very violent. As I mentioned in passing in a previous debate, there is a great width to group of people affected, as it includes all those who serve a sentence of 12 months or more. The Minister knows—and I will not repeat this ad nauseam—that the courts pass 12-month sentences a great deal of the time.

A three-year sentence, on the other hand, is serious. People do not get three years unless they have done something very serious indeed. It is the sort of penalty that might be given for a charge of malicious wounding with intent under section 18, or of grievous bodily harm under section 20: that is to say, really serious bodily harm, either caused intentionally or with a slightly different standard of intent.

Actual bodily harm, which is less serious, is an offence in the schedule. In my experience, actual bodily harm is regularly a one-off offence that may be committed within a family or under the influence of drink, and may not happen again. It is not linked in my mind with people who commit serial violence. There is an argument for keeping this to the more serious sentences of three years.

Can the Minister outline what happens in practice to a typical offender? For example, someone is convicted of actual bodily harm in a Crown court and is sentenced to 14 months' imprisonment. The Judge tells him that if he had pleaded guilty he would have got eight, which is the normal discount. He serves a term of imprisonment, but comes out on licence halfway through his sentence and is thereafter under the supervision of the probation service for the balance of his licence. What happens in practice when the mechanism under clauses 262 to 264 is applied? I float my amendment on the basis that we should save those cases for more serious offenders: a level of 12 months is too low.

Hilary Benn (Labour, Leeds Central)

I recognise the helpful and probing nature of these amendments: they raise an important point with which I hope to assist the Committee. MAPPAs put additional measures in place to ensure that those who are assessed as posing a high risk of serious harm to the public effectively receive extra attention and supervision: that is the principle.

In order to ensure that MAPPAs operate effectively, the net is cast in the way described in the clause. All offenders convicted of a sexual or violent offence who have been sentenced to 12 months' imprisonment or more fall within the potential scope of a multi-agency public protection arrangement. In practice, only a few are formally referred to, and then considered for, MAPPAs, because of the sifting process that I described in an earlier debate.

The bulk of offenders, including those of the type described by the hon. Member for Woking, will be managed by the ordinary supervision arrangements. That would be the case in the particular example that he gave. However, there may be aspects of an offender's background or history that would give rise to concern that they presented a higher risk. That is the purpose of having this trigger which depends on their background or circumstance. For instance, they may have committed some quite serious offences abroad, come to this country and then appeared before the hon. Gentleman for the kind of hypothetical offence that he described. That is why subsection (2)(b), which we have already discussed and agreed, refers to

''other persons who, by reason of offences committed by them (wherever committed) are considered by the responsible authority to be persons who may cause serious harm to the public.''

That casts the net widely. Indeed, it would cover an offender who had committed serious offences abroad before coming to this country. Information about such offences would be brought to the attention of the police and the clause would enable such people to be brought within the scope of the arrangements.

In the main, offenders would be managed on licence after their release from custody. There may be people who are no longer serving a sentence but who are assessed as persons who may cause serious harm to the public because of the offences that they committed. Although that second category of offenders could be quite broad, the police and the National Probation Service work on the basis that it comprises people who

present a risk of harm which is life-threatening, traumatic, or from which recovery, whether physical or psychological, could be expected to be difficult or impossible.

That provides a tight test that would address what the hon. Gentleman said about the level of risk that is presented to the public. Most of the relevant offenders are likely to have committed serious sexual or violent offences prior to the introduction of the 2000 Act, which established the arrangements regarding the National Association for the Care and Resettlement of Offenders. Those offenders will include some mentally disordered offenders and people from overseas who have the right of residence in the UK.

Dominic Grieve (Conservative, Beaconsfield)

Clause 262(2)(b) must, through its wording, allow any offender—for example, someone who has committed the most minor offence in this country—to fall within the ambit of the MAPPA if that is thought to be necessary. It certainly does not confine the definition to an offence that was committed abroad. In some ways, that wording makes the wording of subsection (2)(a) unnecessary.

Hilary Benn (Labour, Leeds Central)

The honest answer is that this is a belt-and-braces provision, and the hon. Gentleman has identified the reason. The purpose of the provision is to try to manage risk, so it seems sensible to draw the net widely in order to give the MAPPA the power that it needs to supervise and oversee individuals who might present a real danger to the public. The MAPPA would apply the sifting process that I described so that we do not end up with the impossible burden about which the hon. Member for Woking was concerned. The provision will enable the MAPPA to focus most of its efforts on those who present the greatest risk.

Humfrey Malins (Conservative, Woking)

The Minister's reply is helpful. Does he say that everyone who gets a 12-month sentence should have their cases considered by that group of people? Does he think that the volume of cases will be heavy, and might it not be substantially reduced if the three-year sentence were substituted for the 12-month sentence? It is a question of the burden.

Hilary Benn (Labour, Leeds Central)

I am conscious of that point. One of the most helpful developments is that the probation service is being enabled to manage the risk. These are indicators. The purpose of schedule 11 is to indicate a range of offences and the purpose of the 12-month trigger would offer, in part, a response to the argument that the hon. Gentleman made, although I recognise that it could be argued that that period could be greater or less. That is also the reason for clause 262(2)(b), which casts the net. The probation service will assess the risk that is posed by the offender.

OASys, which we discussed in a previous sitting, is the new risk assessment tool developed by the probation service. The OASys assessment of an offender will play an important part in future in determining the degree of perceived risk and whether an individual should be placed formally within the purview of the MAPPA or whether they could be managed under the normal licence arrangements.

There is an issue about greater consistency in the application of that assessment, and I referred to that when I talked about the inspectorate assessment of

MAPPAs. The largest issue that the inspectors identified was that different MAPPAs were undertaking the assessment in different ways. That is not surprising because the arrangements are relatively new and people are feeling their way, learning and trying to ensure that they carry out their responsibilities in the most effective way possible. OASys will assist enormously in making the assessment and identifying risk, and after going through the sifting process, the very small number—the critical few—of highly dangerous offenders to whom the MAPPAs will pay most attention will be identified. The high and medium risk group will be managed in several ways and the vast bulk will be dealt with through normal supervision arrangements. That is the sensible way in which to deal with potentially very large numbers in a way that the MAPPA can manage, which was the point made by the hon. Member for Woking.

David Heath (Liberal Democrat, Somerton and Frome)

That was a helpful response, although I am still worried about the range of initial assessments. At the back of my mind, I have doubts about the arrangements as they pertain to a specific area rather than to an individual in the context of the whole country. I also have doubts about how the interlocking facets of MAPPA case management will work in practice.

For example, I understand that a range of maritime offences is included. If a regular offender against shipping or navigation aids—this is a hypothetical case; I am using it only as an illustration—was normally resident in Derbyshire, he would pose no risk to that community. However, that person might make a day trip to the seaside. I am worried about communications, and we should not swamp the system with cases at a low level, because that would not allow for proper management and interchange of relevant information among areas. Such information should allow the proper management of people who are at high risk of causing serious harm to the wider community—wherever that is situated and including abroad, as was mentioned in a previous debate.

I am grateful to the Minister for his comments and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 700, in

clause 264, page 147, line 14, leave out from 'include' to end of line 15 and insert

'a service court, as defined by section 252(1)'.—[Hilary Benn.]

Clause 264, as amended, ordered to stand part of the Bill.

Clause 35 ordered to stand part of the Bill.

Schedule 3 - Allocation of cases triable either way, and sending cases to the Crown Court etc

James Cran (Conservative, Beverley and Holderness)

I apologise to the Committee that the amendment paper was printed incorrectly. I apologise especially to Mr. Heath, because his and Mr. Hughes's amendments were omitted.

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 1002, in

schedule 3, page 159, line 35, leave out paragraph (a).

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss the following amendments:

No. 983, in

schedule 3, page 160, line 19, leave out 'Great Britain' and insert 'the United Kingdom'.

No. 984, in

schedule 3, page 160, leave out lines 25 to 30.

David Heath (Liberal Democrat, Somerton and Frome)

I am most grateful. I do not think that the omission was quite as discriminatory as was suggested, because several amendments tabled by the hon. Member for Beaconsfield were also omitted. It is a general downer on the Opposition, rather than discrimination against my excellent amendments.

Amendment No. 1002 is designed to probe the Minister about why the provision for disclosure of previous convictions has been included at such a stage of proceedings. It is not clear to me that there is an immediate benefit; indeed, there is a potential disbenefit owing to the potential privileges on magistrates who consider cases. Why are previous convictions relevant in determining whether a case is tried as a summary offence or on indictment? I am not clear that they can be relevant. Obviously, the Minister thinks differently, and I want to give him the opportunity to say why. I shall perhaps respond when he has done so, as clearly there is some reason why he thinks that previous convictions should be considered by magistrates when determining the place of trial for an either way offence, although it is not immediately obvious.

Dominic Grieve (Conservative, Beaconsfield)

I find myself in disagreement with the hon. Gentleman on his amendment. If I have understood how schedule 3 is intended to work, it is axiomatic that the previous convictions of a defendant will be a relevant consideration in deciding where trial should take place. As I understand the principle behind the regime that we are setting up, normally—although there are some slightly odd exceptions, to which I shall refer under a later amendment—if a magistrates court, having tried a defendant, concluded that its powers of punishment were insufficient, it could commit that defendant to the Crown court for sentence. The new principle is that the magistrates court will not do that, and must decide where the trial will take place at the outset, helped by the prosecution. When a trial has taken place, a magistrates court cannot send the defendant to the Crown court.

In such circumstances, it seems absolutely clear that the court must know about the previous convictions of a defendant when deciding on mode of trial, because unless it does so, it will not know whether there are offences of a kind that fall outside its jurisdiction in terms of the punishment that it can reasonably impose. Although I disagree with the hon. Member for Somerton and Frome on his amendment, there are some oddities in the wording of the schedule that I wanted to pick up with my amendments.

My amendment No. 983 concerns subsection (5)(a) of proposed new section 19 of the Magistrates' Courts Act 1980, which says that

''any reference to a previous conviction is to be read as a reference to a previous conviction by a court in Great Britain''.

I find that odd, because it excludes a conviction by a court in Northern Ireland. I cannot for the life of me think why we should use the expression ''Great Britain'', and why a defendant's conviction or series of convictions in Northern Ireland for, say, theft offences should not be taken into consideration if he comes to appear before a court in London for trial on a similar offence. The amendment would replace the words Great Britain with United Kingdom, which would include all the territorial jurisdictions within the United Kingdom. I should be glad to hear why the Minister thinks that the amendment should not be made, because I cannot think of a good reason.

My second amendment, No. 984, concerns subsection (5)(c) and conditional and absolute discharges. The inclusion of conditional and absolute discharges as a relevant previous conviction that magistrates courts should to take into account is bizarre. The principle of an absolute discharge is that although a person is technically guilty of an offence, he is morally blameless. I can only think of two or three occasions in my professional career when I have seen an absolute discharge given, but they are cases in which the point is that no moral blame should attach to the person concerned. Again, I cannot for the life of me think why absolute discharges should feature at all.

Conditional discharges are perhaps in a slightly different category, because such a discharge relates to a period of time, and provided that the person does not commit an offence during that period, the discharge effectively becomes absolute. There may be an argument that such a discharge is sometimes given in cases where a person is seen to be morally blameworthy but it is felt that no real action should be taken. That could be seen to be slightly different, but the principle set out in the Criminal Courts (Sentencing) Act 2000 is that they are not treated as previous convictions. I am a little concerned because, for reasons that I do not understand, the Government seem to have decided that they should be treated as previous convictions. Quite apart from anything else, and looking at the practical reality, I cannot see that they are relevant. How can a magistrates court, knowing that someone has an absolute discharge or a conditional discharge, do anything other than treat that person as of good character? If it does not, there will be complaints, and we shall end up with cases going to some sort of judicial review on the basis that there were no grounds on which a committal to the Crown court could properly be made.

I hope that the Minister can answer those two points. As I say, I am fairly persuaded that the point argued by the hon. Member for Somerton and Frome is not valid because I can see the reason for knowing about previous convictions, but some of the detail on which I have sought to probe does appear to be a bit odd.

Hilary Benn (Labour, Leeds Central)

The hon. Gentleman has largely done my job for me. I can therefore be mercifully brief. The argument that he advanced in opposition to the amendment moved by the hon. Member for Somerton and Frome was exactly right; it described perfectly the reason for the change. For that reason I, too, would resist the amendment. In order to make the new arrangements work successfully, it is necessary to ensure that magistrates have the power to make the appropriate sentence, and one must obviously have regard to previous convictions in doing so.

Secondly, I am grateful to the hon. Member for Beaconsfield for pointing out the question of convictions by a court in the UK and not only in Great Britain. He is absolutely right. Indeed, there are one or two other places where we need finally to track down the relevant changes. I accept the spirit of his amendment, and shall return to it. On reflection, we shall also want to complete what I might describe as a realignment of the boundaries, by adding findings of guilt in service disciplinary proceedings and by removing the now redundant paragraph (b).

Finally, in answer to the last point raised by the hon. Member for Beaconsfield, I accept that in practice it is very unlikely to be relevant, but the justification for including conditional discharges is merely to reflect the sentencing provisions. I do not think that it will involve a great deal of harm. There might just be circumstances in which a conditional discharge was relevant and needed to be taken into account. I take the point made by the hon. Gentleman, but I do not think that we lose a great deal by including the provisions in order to cover that extremely unlikely eventuality. However, should it arise it would probably be more sensible to include the provisions than not.

David Heath (Liberal Democrat, Somerton and Frome)

This is one of those odd situations when I find myself drawn to one of the hon. Member for Beaconsfield's amendments rather than mine. He is absolutely right about the absolute and conditional discharge. I hope that the Minister will reflect on that further. I find it difficult to think of circumstances in which that might be relevant to a court when considering a decision on committal—other than in a way that was inappropriate. Having heard the arguments on the other point, I happily beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 977, in

schedule 3, page 161, leave out lines 3 to 9.

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss amendment No. 978, in

schedule 3, page 164, leave out lines 3 to 8.

Dominic Grieve (Conservative, Beaconsfield)

The principle that we were discussing a moment ago is that once the decision has been taken by the magistrates that trial should take place summarily, or that they would least accept jurisdiction, and provided that the defendant has consented to the acceptance of jurisdiction by the magistrates, they cannot change their mind subsequent to conviction. I had understood that the reasoning

behind the proposal was to encourage people to be willing to be tried in the magistrates court. I was, therefore, puzzled when I saw that new section 20(2)(c), which concerns procedure where summary trial appears more suitable, says that

''in the case of a specified offence (within the meaning of section 204 of the Criminal Justice Act 2003) . . . if he is tried summarily and is convicted by the court, he may be committed for sentence to the Crown Court under section 3A of the Powers of Criminal Courts (Sentencing) Act 2000 if the committing court is of such opinion as is mentioned in subsection (2) of that section.''

That, effectively, says that in the case of the specified offences in section 204, the power of the magistrates to commit for sentence after trial would remain. That appears elsewhere. My next amendment, No. 978, would omit subsection (5)(b) of new section 24A, which deals with a child or young person indicating intention as to plea in certain cases.

Section 204 describes specified offences for dangerous offenders. It says:

''An offence is a ''serious offence'' for the purposes of this Chapter if and only if it is a specified offence, and it is, apart from section 205, punishable in the case of a person aged 18 or over by imprisonment for life or imprisonment for a determinate period of ten years or more.''

I am at a loss. Many of those offences are only going to be triable by indictment, so the issue of the magistrates having a discretion to commit does not arise. There might be one or two—I shall be interested to hear from the Minister what they are—that are either way offences. If they are either way, I simply do not see why the justices should not take the decision at the outset that is in conformity with the principles that the Minister is trying to establish in the whole of schedule 3. To allow those convicted of such offences to be still capable of being committed to the Crown court after conviction seems to negate the intention of the schedule completely.

I may have misunderstood what is intended. It is a difficult schedule to read, and it is difficult to make the various cross-references. Perhaps the Minister will tell me that I have the wrong end of the stick. However, if I have understood it correctly, it is a bit of a nonsense. Can the Minister tell me why the residual power has been retained when the purpose of schedule 3 was to prevent it from happening?

Humfrey Malins (Conservative, Woking)

I believe that my hon. Friend is on to a very good point. I should like to probe the Minister more generally. The aspect of the schedule that we are dealing with mentions a specified offence. Of course, such offences are dealt with in section 204 and again in schedule 11. Will the Minister clarify whether, by specified offence, we mean the entire list in part 1 of schedule 11—the 62 offences of violence, ranging from common assault to much more serious offences—or only those within that schedule that carry the sentence that my hon. Friend referred to? If it is the latter, I should be most intrigued to know whether the Minister thinks that nearly all of those offences are indictable only, so the issue would not arise. On my first reading of the provision, it seemed to me that the court had to go through a difficult exercise because the provision seemed to be establishing the power in relation to certain offences only.

The court has a job to do when the defendant appears before it. It must undertake cross-checking or cross-referencing to ascertain whether the offence that the person is being tried for is part of the schedule. Is there committal for sentence simply because the offence is so serious that the powers of the court are not sufficient? That cannot be right because that would have been decided in the first place and the court would not have accepted jurisdiction. Is the court committing to the Crown court for sentence because of the defendant's previous record? I should like to know whether that is the case. The matter is not clear and, like my hon. Friend, I should appreciate an explanation.

Hilary Benn (Labour, Leeds Central)

The practical effect of amendment No. 977 would be to remove the requirement for the court to explain to an adult defendant offered summary trial under new section 20 of the Magistrates' Courts Act 1980 that, if he agrees to summary trial, he may nevertheless, if convicted, be sent to the Crown court for sentence under the dangerous offender provisions in new section 3A of the 2000 Act. Amendment No. 978 would do likewise when a juvenile defendant is asked to indicate a plea under the plea before venue procedure. New section 24A(5)(b) now requires a similar, though more extensive, warning to be given about the consequences of a guilty plea.

The reason for such provisions is that, when a defendant is required to make a choice—in the one case between summary trial and trial on indictment and, in the other, between offering a guilty plea, a plea of not guilty, and no plea—he should be given as clear an idea as possible about the implications. Such offences are brought about by the dangerous offender sentence provisions, which are triable either way. It is possible that the need for such a sentence to be considered might be recognised only after the allocation decision is taken—hence the preservation for the offences in the circumstances of the power to commit for sentence. That being so, it is necessary for the position to be explained.

Humfrey Malins (Conservative, Woking)

Did the Minister say that it might only be possible to reach a conclusion about whether or not to commit after the trial, when certain matters became clearer? I simply do not know what that means. Perhaps the hon. Gentleman could explain it to me.

Hilary Benn (Labour, Leeds Central)

I shall repeat it—[Interruption.] Well, I said that it is possible that the need for such a sentence to be considered might be recognised only after the allocation decision was taken. That is why it is necessary to preserve it.

Dominic Grieve (Conservative, Beaconsfield)

I remain puzzled by the provisions. The purpose of schedule 3 and the White Paper, which ties in with the original intention, is to remove the process of committal for sentence after trial at the magistrates court. The reason for that was that it was thought undesirable that a situation should exist where a defendant, having been told that he could have trial at the magistrates court if he so wished, did not avail himself of that opportunity because he said to himself, ''Oh well, I will be committed for sentence anyway the

moment that they hear about my antecedents afterwards.'' So the principle, which I wholly support, was that the court should hear about the antecedents and previous convictions beforehand, take a decision and be fixed with that decision. After all, with the prosecutor's involvement in the process, it could hardly be said subsequently that all the matters could not be brought before the court to allow it to take an informed decision at the outset. However, what we have is a system under which the court will now hear about previous convictions before trial; on top of that, the Government have chosen to preserve the power to commit to sentence after trial. I was totally unaware of that until I started to scrutinise the detail of schedule 3 last week.

I am very unhappy because that choice goes against the Government's stated intention to simplify the procedure and to encourage people to be tried in the magistrates court. One of the Government's anxieties was that in the past there were far too many instances of people being committed to the Crown court for sentence only to receive there a sentence that would have been well within the tariff that the magistrates court could impose. One of the provisions of the Bill that I support completely is the extension of the sentencing powers of magistrates to reduce the clogging up of the Crown court.

I appreciate the Minister's point that the amendments would remove the need to warn a defendant beforehand that he could be committed. However, that relates to an Act of 2000 under the old system. It should no longer be necessary to provide such a warning because it should no longer be possible for a person to be committed to a Crown court after being convicted in a magistrates court. The magistrates should be required to take the decision on whether they accept jurisdiction at the outset. We could create a situation in which the defendant could argue that he has been misled or in which the intention to encourage people to be tried in magistrates courts is negated because the old regime will still apply.

As I think that the Minister acknowledged, I find it very difficult to think of instances when there will be either way offences that fall into clause 204's definition of specified offences and dangerous offenders. However, I recognise that there may be one or two. None the less, when magistrates first consider a case, they will be told something about the facts and the defendant's antecedents. They will be able to see that the offence is one for which a long sentence is likely and will decide whether the case must go to the Crown court. Nevertheless, the Government are anxious to retain that residual power, and they should not be allowed to for it goes completely against the intention in the White Paper on how the Government wanted to see magistrates court jurisdiction develop.

I should like the Minister to assure me that he will reconsider the matter; if he will not, I think that I will put it to the vote. It is an issue of principle, and I am unpersuaded by his argument that the Government must retain that power.

Humfrey Malins (Conservative, Woking)

I am completely confused, as, I believe, is the Minister about the purpose of this paragraph.

Can he give me one example of when it would operate in practice?

Hilary Benn (Labour, Leeds Central)

Gladly. The truth is that this is a very narrow derogation from the principle in the Bill that a defendant tried summarily should be dealt with by the magistrates. There are two sets of circumstances in which it might arise. First, it might arise if, after a defendant pleads guilty and reports are ordered, it becomes apparent that a sentence as a dangerous offender is required. The second set of circumstances is that the defendant agrees to a summary trial, but facts emerge during the trial that show that a sentence for a specified offence is appropriate. Those two sets of circumstances are the reason for the narrow derogation from the broad principle.

Dominic Grieve (Conservative, Beaconsfield)

The second example given by the Minister is bad. If it were right, the intention behind schedule 3 must be wrong as a matter of principle, and we ought to retain the old system.

Humfrey Malins (Conservative, Woking)

I wonder whether my hon. Friend heard the first point of the Minister's argument, which was that the pre-sentence report might reveal factors that would encourage the court's change of mind. That surely is sentencing based on a pre-sentence report, not on the case before the court.

Dominic Grieve (Conservative, Beaconsfield)

Yes. I agree with my hon. Friend about that as well, and I was about to address the first point. I thought that the second one was so glaring because it went against the whole thrust of the previous argument advanced by the Government, but my hon. Friend is right that the first example given by the Minister is equally unsatisfactory. It should not be necessary for the sentencing report to guide the court. The intention behind schedule 3 is that the prosecutor could say to the court, ''This is a case where you can accept jurisdiction or not.'' The court would know about the previous convictions and be able to make an informed decision.

I do not know where the civil service has been in all this, but up in the upper recesses or garrets of the Home Office, somebody got it into his head that he must not allow this power to slip away entirely. As a result, he wanted to keep it and tried to slip it into schedule 3 in such a way. That is not satisfactory. The Government must come up with a better explanation.

David Kidney (Labour, Stafford)

I am worried, too, but if we go back to clause 205 and dangerous offenders, which lays out how an extended sentence might come to be passed, it states that the court must be satisfied or

''of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences.''

On most occasions, a magistrate deciding on jurisdiction by himself or in the Crown court might spot such people with the help of the Crown Prosecution Service, but is the hon. Gentleman really saying that he is certain that a magistrate would never miss it at that stage and that it would not arise later on in a trial or in a perusal of reports? The risk that would be taken is that some people would then not get the extended sentences that they should receive for the protection of the public.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman makes—

Hilary Benn (Labour, Leeds Central)

A good point.

Dominic Grieve (Conservative, Beaconsfield)

It is a very good point—I accept that—but at the same time I think that it is slightly unreal. Let us suppose that a defendant is brought before the magistrates court who has a record, for instance, of frequent violence against other people, possibly of quite a low grade, but who is well known to the local police as, to put it bluntly, somebody who seems to have a pathological personality—very unpleasant and a constant worry to them.

If the police are doing their job properly, they will pass that information to the prosecutor. The previous behaviour has been recorded in respect of the previous convictions of the defendant. Although they have attracted only short sentences, the prosecutor can say that, despite the sentences, he should point out the facts relating to the cases. The prosecutor could say that if the case goes to the Crown court, he may well apply for an extended sentence. That will be the end of it, will it not? The magistrates then say that the case must be committed to the Crown court for trial.

David Heath (Liberal Democrat, Somerton and Frome)

It occurs to me that either the prosecution or the magistrates in certain cases would be guilty of astonishing dereliction if they allowed a case to be presented that proposed a genuine and serious risk of substantial harm to the community without presenting that information to the magistrates so that they took account of that in their initial assessment. That is really clutching at straws. I am inclined to agree with the hon. Gentleman that this is a spare part that the Home Office is determined to have in its Bill, just in case. I do not think that it is appropriate.

Dominic Grieve (Conservative, Beaconsfield)

I agree entirely with the hon. Gentleman. The anxiety is that for some reason that system will break down, but at least at the end of the trial somebody will realise that that is the case. At that point, somebody will be able to save the day by saying, ''Look, we have discovered all these terrible things about this defendant.'' The proposition advanced by the hon. Member for Stafford (Mr. Kidney) is unreal. If that is the cause of their anxiety, the Government should never have embarked on the schedule 3 procedure. On that basis, it would always be necessary to wait until the end of the summary trial for the magistrates to make the informed decision, based on the report, on whether to accept jurisdiction over anything.

David Kidney (Labour, Stafford)

The hon. Gentleman describes as unreal my proposition that sometimes events might unfold after the point of the election and the decision on jurisdiction. I would prefer to say that such instances are infrequent. If he accepts that they are infrequent, does that not mean that some people would not get the extended sentence that they should if he were successful in his opposition? That would be detrimental to the protection of the public. The hon. Member for Somerton and Frome says that such a case would be an example of bad performance by the Crown Prosecution Service, but I do not accept that that is the only reason why magistrates would not know. However, even if that were the reason, are we saying that the public cannot be protected because the CPS did a bad job one day?

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman makes the point again, but let us look at it another way. I can think of a number of examples in the course of my professional career in which the antecedents of a defendant proved to be incorrect. One has gone to court—Crown court—and the defendant has stood trial and been convicted and sentenced based upon antecedents that he has accepted, having lied to his own counsel. Although one subsequently learned that there were huge antecedents—that has happened—the case could not be reopened.

There is always the risk that the court might get it wrong. Apart from antecedents, it could be that the court is in ignorance, for example, of the fact that the defendant has been receiving psychiatric medical care and that the psychiatric assessment made elsewhere in the country is that that person is very dangerous. The risk always exists, but at some point one has to bring down the barrier and say that the decision has been made and the sentence has to be based on the available information.

I do not find the fears that are being expressed sufficiently great to drive a large coach and horses through the principle behind the schedule, which is the desirability of encouraging defendants to plead guilty in the magistrates court at the earliest opportunity or to accept summary trial and the jurisdiction of the magistrates court, and not to clog up the Crown court with minor offences.

Stephen Hesford (Labour, Wirral West)

May I ask the hon. Gentleman to look at the matter differently? This is not a matter of principle, it is a matter of practice. He is saying—and we all agree—that we should not clog up the Crown court. If we do not want to do that through having what he describes as a coach and horses, might it not simply be because of the exceptions of which my hon. Friend the Member for Stafford has spoken? Should we not give magistrates guidance on the exceptional circumstances, so that they do not use the procedure at a point at which it should not be used? It is practice, not principle.

Dominic Grieve (Conservative, Beaconsfield)

Perhaps it is my fault for having tabled the amendment and not done the research—although the Minister has not been able to help us—but I do not know how many either way offences come into the category within section 204, or what they are. My anxiety is that, because of the way in which we have created specified offences and looking back on our previous consideration of dangerous offenders, they might turn out to comprise rather a wide group. If that happens, it will be an open invitation to magistrates to break their pledge.

We have designed a system to ensure that an individual will be tried and sentenced in the magistrates court, and that there is certainty as to the upper limit of the sentence. However, we shall have magistrates saying, ''Thank you for that guilty plea. We are terribly sorry, but we are now going to send you to the Crown court for sentencing.'' The laudable intention behind the schedule will be negated. I understand the fears expressed by the hon. Member for Wirral, West (Stephen Hesford) and by the Minister but I do not think that they are real.

In the circumstances, I do not form the impression that the Minister has been fully briefed on the background intentions of the civil service draftsmen in respect of leaving in the power. I wish to put the amendment to a Division to mark my disagreement, but I remain open to persuasion subsequently. The Minister can write to me.

Question put, That the amendment be made—

The Committee divided: Ayes 4, Noes. 12.

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 1003, in

schedule 3, page 161, line 14, leave out

'may, but need not,' and insert 'must'.

The amendment is a variation on the usual may-must debates. It raises a serious point. The hon. Member for Beaconsfield talked about driving a coach and horses through schedule 3, but I do not claim that the amendment would do that. It would be along the lines of a pony and a small gig, or perhaps a pig in a barrow. The thrust of schedule 3 is to avoid uncertainty and matters going to the Crown court that need not be dealt with there and that can be dealt with safely in the jurisdiction of the magistrates court. Magistrates will assess at the initial stages whether their powers of sentencing are sufficient and reach a preliminary view about what sentence they are likely to impose on a finding of guilt.

There is provision within the schedule for the defendant to request from the bench an indication whether it is likely to impose a custodial or non-custodial sentence, so that he can decide whether to elect for a Crown court committal, so it is bizarre that the bench will have the ability to say that it has reached a view, but that it will not tell the defendant what it is. That seems perverse. I cannot see the benefit of such a provision. If we are to have clarity in the system, so that everyone knows where they stand and what the likely consequences will be, it is appropriate either that everyone is left in the dark about whether they will receive a custodial or non-custodial sentence, or that their requests are answered.

It seems perverse to allow people the capacity to make the request, but for there to be no requirement on the court to answer that request. It will have the effect of defendants being advised to opt for a Crown court committal in cases in which they might not otherwise have done so. That is contrary to the intentions of schedule 3 and contrary to the Government's intentions, which we broadly support. I am normally greatly in favour of discretion for

magistrates courts, but it seems odd to leave the decision to the discretion of the court. Perhaps the Minister can explain in which circumstances he would expect the bench not to make such an indication, and whether it would be required to give any reasons for that.

James Cran (Conservative, Beverley and Holderness)

I am hearing two conversations in the Committee. Could the other conversation that is taking place take place out in the Corridor?

Humfrey Malins (Conservative, Woking)

I rise to support the amendment, which seeks to insert ''must'' instead of ''may''. It seems silly to have a provision that says:

''If the accused requests an indication of sentence, the court may, but need not, give such an indication.''

There are many court centres in London in which four, five, six or seven courts are sitting at once. Lay magistrates staff some, and district judges others. It would be difficult for a defendant to face a tribunal quite uncertain about whether the court will give an indication as to sentence, given that the practice is bound to vary so much if the discretion is allowed.

Some lay magistrates might always say, ''No, it's not our practice to give an indication as to sentence.'' Some district judges, perhaps with more experience, might always give an indication of sentence because it is their practice to do so. Where is the fairness for the defendant, who might find himself before one tribunal or another, completely by accident, through the listing systems? The contrary may be the case. The lay bench might be prepared to give an indication, but the district judge might not be prepared to do so. However, it is surely silly simply to say:

''If the accused request an indication of sentence, the court may, but need not, give such an indication.''

The question arises of in what circumstances the court should give an indication. Perhaps the Minister can outline those to us. What happens if the court refuses to give an indication and the defendant presses the court through his counsel for a reason why? Is the court obliged to give reasons?

Stephen Hesford (Labour, Wirral West)

With his experience in such proceedings, which is considerable and valuable, is the hon. Gentleman saying that in every lay magistrates court somebody could reasonably ask that court to give an indication of sentence, and that that would be a satisfactory way of proceeding throughout the country? I submit that it would be a recipe for disaster if every lay magistrate had to give indications for sentence.

Humfrey Malins (Conservative, Woking)

I understand what the hon. Gentleman is saying, but surely he accepts the point that making that a power but not a duty is the worst of all worlds. One lay magistrate will say, ''Yes, I'll give an indication,'' and another lay magistrate will say, ''No, I won't give an indication.'' However, the defendant coming into court at the beginning of the day does not know whether he will appear before a lay magistrate of experience, or a lay magistrate of no or relatively little experience. Until he arrives at court and sees the list, the defendant does not know whether he is before a district judge or a deputy district judge. In practice, his counsel will surely say to him, ''Now look, we had our plans today to get an indication of

sentence, but you're in court 3. My judgment is that court 3 aren't going to give an indication of sentence, but we'll get your case slipped into court 2.'' That is quite easy: in practice, one would simply say to the usher, ''Can you move me to court 2? I don't like the look of court 1,'' or, ''I know the magistrate too well.'' Those interchanges do take place.

I tell the Minister that the provision whereby the court might or might not give an indication is unsatisfactory. A court that gives an indication of sentence is doing the defendant a favour because he can then proceed with some certainty. A court that does not is not doing the defendant a favour, and he is not proceeding with any certainty.

What are the criteria to be? On what basis would a court give an indication of sentence, and on what basis would it not? My judgment is that full-time judiciary, district judges, will always give an indication of sentence if they are asked. I cannot think of a situation in which they would not, because their purpose is the smooth administration of justice. However, a lay bench might take a different view. It is not fair to have a situation in which one set of proceedings happens in court 1, another in court 2, another in court 3 and another in court 4. That would be a lottery and not sensible. There are no circumstances in which the court would not be prepared to give such an indication—can I press the Minister on that point?

Looking briefly, although perhaps I should not, at subsection (7),

''If the accused indicates that he would plead guilty''—

I do not think that the word ''would'' is very happy there. ''Intends to plead guilty'' is much better.

Hilary Benn (Labour, Leeds Central)

There is general agreement with the principle that by providing as much information as possible to defendants we can encourage them to make a decision about where they wish to be tried. I have listened with interest to the debate. When Lord Justice Auld considered the issue, he felt that it was not possible to state that there would always be circumstances in which it would be possible to give an indication of sentence. Although I recognise, in relation to the magistrates court, that it is possible to refuse to give the broad indication that the Bill permits, it is certainly the intention to encourage the magistrates to give a sentence indication when it is practical to do so. The only circumstances in which they would decline to do so would be those in which there was insufficient information.

I accept that in practice a refusal to give a broad indication—in the magistrates court, that would mean custody or not—might be interpreted as tantamount to informing the defendant that he faces a custodial sentence.

Dominic Grieve (Conservative, Beaconsfield)

This brings us back, in an odd way, to our discussion on the earlier amendment about the anxiety that if one commits oneself, one will not subsequently be able to step back. There is a danger that magistrates will take the opportunity not to give indications. The reticence within the system will defeat the laudable objective of the clause.

Hilary Benn (Labour, Leeds Central)

The hon. Gentleman makes a fair point. The whole purpose is to encourage magistrates to do precisely that. If the consequence were to be as he describes, it would defeat our objective.

I would like to reflect on this a little further. We all want to achieve the objective, but it is a question of going back to what Lord Justice Auld said in coming to his view. It should not be a duty in all circumstances to provide an indication, because it might not be possible. I undertake to consider further whether there is a way of resolving the matter in the spirit in which the debate has been conducted.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful to the Minister. I was contemplating pressing the matter to a Division, but he is clearly prepared to reconsider. It is a serious matter. The point made by the hon. Member for Woking about having a consistency of approach and not ending up with a two or three-tier magistrates court system for which different criteria apply is important in itself. In circumstances in which there is insufficient material or information to provide a reply to that question, the magistrates have probably had insufficient information to make their initial assessment, and therefore the one is concomitant with the other.

Equally, if magistrates have been able to make an assessment as to the appropriate place of trial, they will have had sufficient information to give at least an idea of their intention in respect of sentence. If lay magistrates do not feel equipped to do that, they should be given the support and advice to enable them to do so. If that is part of the process envisaged, should not there be one system across the country? There should not be one process for Horseferry Road and another for a place out in the sticks where no one is assumed to be able to make an effective judgment as to what they intend to do.

The Minister has been very helpful in his response. He has undertaken to think about the matter, and we also would do well to reflect on the issue, and perhaps consider it again later. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 1004, in

schedule 3, page 169, line 28, at end insert—

'( ) if it is in the interests of justice to do so'.

The amendment deals with sending cases brought against children or young persons to the Crown court. Under the previous amendment, I was trying to reduce the discretion available to magistrates, but under this one I am trying to widen it. That is my normal intention, except when it is not in the interests of justice to do so. I am specifically asking that magistrates be given the discretion to follow the dictates of the interests of justice in circumstances that are not explicit in the conditions listed in new section 51A(3) in schedule 3 if there is a good judicial reason for a young person's case being sent to the Crown court.

It would be idle to speculate on the circumstances in which such a provision might apply, but I would hate

there to be a fetter on the discretion of magistrates courts that prevented them from, in some circumstances, considering what would be in the interests of justice as it relates to young people and children who, as I think we all agree, require special consideration in relation to judicial processes. If, when all matters are taken into account, a case would be better dealt with at a Crown court, magistrates should have the ability to send it there, irrespective of the general thrust of schedule 3 and the way in which disposals are indicated.

This is the sort of amendment that the Minister has rejected previously on the basis that everything is always done in the interests of justice, and I suspect that his argument will be similar in this case. New section 51A(3) provides for specific conditions, and there is no general condition included. I ask him to consider whether this is a case in which a spare-part provision to allow an overriding discretion to the magistrates might be appropriate.

Hilary Benn (Labour, Leeds Central)

The hon. Gentleman does indeed anticipate my argument in every respect. First, if we wanted to add references to the interests of justice, the easier thing to do would have been to have a kind of preamble, although I know that there is no legislative provision for doing so. Nothing in the Bill should be interpreted as being other than in the interests of justice. If that had been understood, we would have got many of the debates out of the way right at the start, but I am sure that parliamentary counsel would have told me that it was wholly inappropriate.

When I read the amendment, I was not entirely clear whether the hon. Gentleman intended it to apply to all of subsection (3) or only to subsection (3)(d).

David Heath (Liberal Democrat, Somerton and Frome)

I intended it to be an additional condition that could be applied under subsection (3).

Hilary Benn (Labour, Leeds Central)

In relation to subsection (3)(a) and the offence of homicide, I find it hard to conceive of circumstances in which it would be in the interests of justice for such cases not to be sent to the Crown court. However, the rationale behind the new section to the Crime and Disorder Act 1998, which is added by paragraph 16 of schedule 3, is that it should set out with clarity all the circumstances in which cases involving young defendants should be sent for trial to the Crown court. If we have missed any circumstances, we would certainly wish to add them, but I am not persuaded that a catch-all provision of the sort advanced by the hon. Gentleman would itself be in the interests of justice.

Dominic Grieve (Conservative, Beaconsfield)

I confess that when first reading the amendment I was slightly unclear—I remain so—whether the words

''if it is in the interests of justice to do so''

are supposed to qualify an offence of homicide so that it must still be in the interests of justice to send it to the Crown court, or whether it would add an extra provision that meant that any offence might be so treated if it was in the interests of justice to do so.

David Heath (Liberal Democrat, Somerton and Frome)

I thought that I had just answered that point. I intended it to be an additional condition under subsection (3), so that if the magistrates believed that

the interests of justice would best be served by a young person being sent to a Crown court they could do so for any offence, outwith the other strict conditions.

Dominic Grieve (Conservative, Beaconsfield)

I apologise to the hon. Gentleman if I did not properly follow his clarification. Now that I understand, I find myself thinking that he is wrong. The wide power that that would give the magistrates would be completely unnecessary. That brings us back to the question of why we have two potentially different systems of trial in the magistrates court and the Crown court. That is particularly so with children and young persons, where the clearly established principle is that the trial should normally take place in the more informal setting of a juvenile court. The amendment is unnecessary—indeed, it is rather undesirable.

David Heath (Liberal Democrat, Somerton and Frome)

I sense that I do not carry the Committee with me. Under heavy fire, I think it best to retreat and regroup—which I intend to do. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That this schedule be the Third schedule to the Bill.

David Kidney (Labour, Stafford)

Notwithstanding the disagreement a few minutes ago over the committal procedure for dangerous offenders who might be the subject of extended sentences, I want to thank the Minister for agreeing eventually to include a provision about magistrates not sending cases to the Crown court for sentencing when they choose to deal with the trial themselves. I promoted something similar in the previous Parliament, when I moved an amendment on Report to the ill-fated Criminal Justice (Mode of Trial) (No. 2) Bill. I called it the Scottish amendment, because that has long been the practice in Scotland. At the present rate of committals for sentence, I am certain that such a measure would save the Crown courts from having to deal with thousands more cases a year.

In congratulating the Minister on his move, I point out that some say that his decision, together with giving magistrates extended powers of sentencing, will mean more people being sent to prison rather than fewer. I ask him to confirm that he is very much focused on that not being a perverse outcome of such a welcome measure.

Dominic Grieve (Conservative, Beaconsfield)

As the Minister understands, we welcome schedule 3 and its intention. I had forgotten the role that the hon. Member for Stafford played in promoting this in the Criminal Justice (Mode of Trial) (No. 2) Bill. It was unfortunate for him that it was tagged on to such a bad piece of legislation. I remain concerned about the fate of this piece of legislation as it also contains provisions that tinker with jury trial—provisions that will have to pass the scrutiny of their Lordships before the Bill can be enacted. Nevertheless, it has a better chance of getting on the statute book than the Criminal Justice (Mode of Trial) (No. 2) Bill.

The hon. Gentleman is also right that one of the consequences of such a change, allied to the increase in the sentencing powers of magistrates, may well be a greater tendency to send people to prison. That is not

the intended outcome of the Bill—the original intention was that the magistrates should exercise their jurisdiction more frequently in areas that fall within their competence. That remains a matter of concern, particularly as custody plus and custody minus will not be introduced at the same time as the increase in magistrates' sentencing powers. However, that does not detract from the value of schedule 3, which I hope will work well and will ensure, as the Minister said, that the Crown courts are not clogged up with trivial offences that can properly be dealt with elsewhere.

Hilary Benn (Labour, Leeds Central)

I am grateful to my hon. Friend the Member for Stafford for his kind words. I claim no credit whatever for this. Rarely has schedule 3 brought such happiness to a member of the Committee. I, too, am glad that he reminded the Committee of his involvement with the Scottish amendment, which obviously has the support of the whole Committee. We debated the potential effect on the prison population at some length. We have yet to take final decisions on the phasing in of custody plus and custody minus and on the increase in magistrates' sentencing powers. I draw the Committee's attention to the new range of community disposals that form part of the Bill, and to which we are very attached, not least because they have proved successful in reducing reoffending. That is what the Bill is intended to achieve.

An example of that is the figures on juvenile offender reconviction that were published this morning. The figures—the second set that we have had—show that the youth justice reforms have brought about a reduction of 22.5 per cent. in the reconviction rate, building on a 14.5 per cent. reduction in reconvictions that was shown in the first cohort. That demonstrates that by making more imaginative and rigorous disposals available to the criminal justice system, one can reduce reoffending.

Question put and agreed to.

Schedule 3 agreed to.

Clause 49 - Meaning of ''terminating ruling''

Harriet Harman (Labour, Camberwell and Peckham)

I beg to move amendment No. 940, in

clause 49, page 31, line 37, leave out from 'termination' to end of line 41 and insert

'or stay of proceedings for the offence, or one or more of the offences, included in the indictment'.

This is one of my cameo appearances, which is how I believe they are described at the Oscars. The Government and the Opposition have tabled several amendments to part 9, which comprises clauses 49 to 61. The clauses have a very simple objective: to give the prosecution an opportunity to appeal against judges' terminating rulings. It is a simple objective, but, as I expected, the diligent and experienced Opposition team have smoked out the matters of concern in these clauses.

First, there are issues of principle, secondly there is the issue of whether the measures will work in practice, and thirdly there is an issue surrounding which rulings

should be covered. I hope that that indication about the themes that we will deal with will be helpful at the outset.

Like the other Government amendments, amendment No. 940 has a technical flavour, but it does not alter the fundamentals of the scheme. We will discuss those matters later. As hon. Members will be aware, part 9 will provide prosecutors with a new interlocutory right of appeal against terminal rulings made by a judge. The amendment will ensure that the definition is sufficiently wide to cover rulings that are envisaged. Such rulings may either be what one might describe as formally terminating, in the sense that the judge might bring the proceedings to a close without any intervention on the part of the prosecutor, or they may be de facto terminating—terminating in practice—in the sense that the prosecutor might regard a ruling as fatal and would, but for the right of appeal, abandon the proceedings by offering no evidence or no further evidence. Although such proceedings might not in themselves be terminal, they might be described as fatally weakening.

The first category of rulings is defined in clause 49, which explains that a terminating ruling would bring the proceedings to a close without any intervention on the part of the prosecutor. We had to define a terminating ruling in that way because judges may make a wide range of terminating rulings and we did not wish inadvertently to miss any out. The amendment fine-tunes the definition, and it addresses our concern that the current definition of a terminating ruling might be interpreted as excluding rulings that stay the proceedings. That is something about which the Opposition are concerned. The amendment makes it clear that stays are included in the definition and can therefore be appealed against.

Humfrey Malins (Conservative, Woking)

I am grateful to the Solicitor-General for her introductory remarks. Some of the Opposition amendments that we will deal with in due course are principally probing amendments. However, the first point that she made clarified the position that a stay is now, without doubt, defined as a terminal ruling for the purposes of the relevant clauses. We may now be bringing a stay in as one of the rulings that could terminate proceedings, and I want to question her about that.

There are various rulings that a judge can make that would bring a case to an immediate conclusion without further intervention of any kind from the prosecution. A typical example, which I suspect that we would all agree is the most usual, is a ruling of no case to answer. Perhaps we will move on to that matter in later debates. Of course, when there is no case to answer, the case is over, the prosecution does no more—indeed it can do no more—and that is the end of the matter. Another example is a stay on the grounds of an abuse of process. Such a ruling would bring a case to a conclusion. Those are less frequent than successful submissions of no case to answer, but they are none the less important.

Committee members may not know what is a stay of process or an abuse of process. I have come across one example where the prosecution's principle evidence was a videotape taken at the scene of the crime. The offence was violent and took place in the street. It became apparent only at the trial that there was a video of the whole event. The prosecution had not produced the video for the defence and at least one witness said that the defendant was not involved but was an innocent bystander who watched, but did not participate in, the punch-up. It was plain to the court, and admitted by the Crown, that the prosecution had been negligent because it had not sought out the video. In a similar case, the prosecution had sought out the video, found that it was helpful to the defence but lost it and did not hand it to the defence. In such a case, the court will hear a submission from the defence that an abuse argument should take place and that proceedings should be stayed.

My initial point for the Minister is that we should be careful not to interfere too much with judicial discretion because judges will otherwise make a series of rulings that will be increasingly subject to a challenge by the Crown as legislation develops over the years, which would lead to practical difficulties and consequences. I tell the Minister—cautiously at this stage because there will be further debates on the subject later in the day—that the abuse argument is an important tool at judges' discretion to stay proceedings for various reasons that generally reflect on the credit of the prosecution. The introduction of a measure that can be appealed against is bold, but I hope that he understands that I have the gentlest of worries, at this stage at least, about widening too much the different terminating rulings that can go to appeal. I do no more than lay the ground for later discussions.

David Heath (Liberal Democrat, Somerton and Frome)

I am sure that I am stepping into a field that contains technicalities of which I am unaware. As a non-practitioner, it is almost certain that I shall be told that I am misdirecting the information that I have.

I am grateful to the Solicitor-General for her letter of 20 February that gave examples of possible rights of appeal if a case is terminated. Will the examples be considered? A couple of the examples involved a judge who required disclosure of identity after which the prosecution felt unable to proceed with evidence either on the basis of a public interest immunity defence or because an individual might be put at risk.

I examined the clause carefully and I read the words

''without any further action by the prosecution''.

In that instance, it is the prosecution's decision that they can no longer provide evidence, rather than a judge's decision. A decision by a judge does not inevitably lead to the prosecution concluding that they can no longer give evidence—I hope that I make myself clear. I am not sure whether that would be defined as a terminating ruling, because there is a two-stage process.

It is not inevitable that the identity of an informant or evidence that the prosecution believe to be covered by public interest immunity cannot be disclosed because the prosecution decide whether they can no

longer provide evidence. I ask, in ignorance, whether that would come within the meaning of a terminating ruling as it applies in the clause, given that the prosecution decide whether they are prepared to continue with the case after a judge's ruling.

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Two o'clock.

Standing Committee B

Clause 49 - Meaning of terminating ruling

David Heath (Liberal Democrat, Somerton and Frome)

I thank the Solicitor-General for her explanation. It is now much clearer, to me as a layman, exactly what is intended. I do not think that one could reasonably have interpreted from the words of the Bill exactly what was intended, but she has now made it plain. May I also thank her for her very helpful chart? I share her hope that it becomes a standard work of guidance in that area and possibly bears her name in future because it will be a helpful guide for barristers who seek to follow the procedure.

Amendment agreed to.

Harriet Harman (Labour, Camberwell and Peckham)

I beg to move amendment No. 941, in

clause 49, page 31, line 43, leave out 'against a defendant'.

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss Government amendments Nos. 942 to 948.

Amendment No. 988, in

clause 52, page 33, line 26, leave out paragraph (a).

Government amendments Nos. 949, 952 and 956.

Harriet Harman (Labour, Camberwell and Peckham)

This group of rather technical amendments picks up on the fact that trials often involve multiple offences and multiple defendants. The amendments are an attempt to avoid unintended consequences relating to other offences that are not the subject of an appeal. The prosecution should be clear what they are appealing about. If there are other defendants, they should be left on one side, and if there are other offences they can continue.

To take multiple offences first, a judge's ruling may well affect several offences simultaneously. Where that is the case, the prosecutor may want to appeal against the ruling in relation to only one or other of the offences affected. The ruling might affect many offences of which the prosecution object to only one. We are therefore changing clauses 51 and 52 by means of amendments Nos. 945 and 948 to require the prosecution to specify which of the offences affected by the ruling they wish to appeal against. That is right because the Court of Appeal will be absolutely clear on the offence with which the prosecution is taking issue and the defence will be absolutely clear about what they face.

In line with those changes, we are also amending clause 54 so that proceedings for any offence affected by a ruling can be allowed to continue by the trial judge, provided that the ruling is not subject to an appeal in relation to that particular offence. A prosecution appeal should not stop the trial judge proceeding fairly and should not have a wider effect than is strictly necessary.

As it stands, clause 54 prevents proceedings from continuing if they are affected by a ruling. An offence may be affected by a ruling but if there is no appeal in relation to the ruling as it affects that particular

offence there is no reason why the proceedings for the offence should not continue. As amended, clause 54 will enable proceedings to continue in those circumstances.

Amendments Nos. 943, 944, 947 and 952 are consequential on the main amendments to clauses 51, 52 and 54, as are the first two limbs of amendment No. 956, which provides general rules for the whole of part 9.

Turning to multiple defendants, more than one defendant may take part in the same trial and a ruling may be made which affects an offence with which more than one defendant has been charged. A similar principle underlies the amendments. The judge may make a ruling that affects an offence with which several defendants have been charged, but the prosecutor may want to appeal against the ruling only as it affects one or other of those defendants.

The third limb of amendment No. 956 requires the court to treat an offence with which more than one defendant has been charged as a separate offence in relation to each defendant. That means that if more than one defendant has been charged with the same offence, the prosecutor in appealing must specify whether the appeal is directed against the ruling as it affects all the co-defendants, and if not, which particular one or other of them it affects. The amendment rightly requires more specificity than is in the Bill. It has the virtue that under clause 54, as amended, proceedings for an offence will be able to continue against one co-defendant when the trial of another co-defendant is put on hold by the lodging of a prosecutor's appeal against a ruling on the same offence. We want as little as possible to stop while interlocutory appeals go on. There can be a twin track: some of the defendants can continue to be tried, while one case is temporarily in abeyance because it is at the Court of Appeal.

Finally, amendments Nos. 941 and 942 refine clause 49 to make it clear that the point in clause 49(2) applies in cases in which any number of defendants are charged with the same offence, and where the outcome of the prosecutor's appeal may be the continuation of the same proceedings, rather than fresh proceedings. The motive underlying those amendments is the avoidance of unnecessary delay. It makes sense to allow proceedings not affected by a prosecutor's appeal to continue, where possible, provided that the trial judge considers it appropriate. The amendments allow the trial judge considerable flexibility and will contribute to the goal of avoiding unnecessary delays.

Humfrey Malins (Conservative, Woking)

I want to save most of my remarks for the clause stand part debate. However, I will speak briefly to my amendment, No. 988, which applies to clause 52, but is in this group. It is a probing amendment. Under clause 52, where a prosecution have a right to appeal against what appears to be a non-terminating ruling, they effectively have to give an undertaking that the case is all over if the appeal is abandoned or leave is not obtained. That seems slightly odd, because it may be

putting the prosecution in a worse position than if they had accepted the ruling in the first place, even though the non-terminating ruling was potentially a little damaging to their case. By not appealing against the ruling, the prosecution might have continued to win the case, but by appealing, they are effectively saying, ''If we don't win on this narrow point, we are dead in the water.'' That seems a little odd, and I wonder whether the Solicitor-General will help me on that point.

On the Government amendments, the Solicitor-General has explained, but I am not entirely clear why we are omitting the words ''against a defendant'' in line 43 on page 31. I assume that ''termination of proceedings'' must mean termination of proceedings against a defendant. I am not entirely sure what the removal of the words adds or subtracts in relation to that.

Finally, the Government want to amend the last line on page 31. In place of the words ''a fresh trial'', they want to substitute the words ''fresh proceedings''. I am not entirely clear in my mind about the difference between a fresh trial and fresh proceedings. Those are my only queries on that group of amendments; I will make other remarks in the clause stand part debate.

David Heath (Liberal Democrat, Somerton and Frome)

There is one area on which I hope that the Solicitor-General will be able to help me. Obviously, it makes sense in terms of the management of the process and resources for proceedings to continue as far as possible while the appeal process carries on for a specific offence or defendant. I understand that. My concern relates to an appeal being lodged against a judge's ruling on admissibility of evidence, for instance, which is terminal to a particular prosecution, but may be prejudicial but not terminal to other prosecutions, in terms either of other defendants or of other offences being tried in the same proceedings.

As I understand it, there would be no provision in that instance for that prejudice to be remedied by appeal before proceedings continued, unless the judge was prepared to make a ruling. If I have understood that correctly, can that be right and should there not be some sort of appeal process against such a ruling to make that consistent with the general approach that the Government are adopting? I can foresee circumstances in which a body of evidence might be ruled inadmissible, fatal to one case and damaging but not fatal to another. Under the rules set out here, as I understand them, the prosecutor would be able to appeal against that only on the basis of the case to which the inadmissibility is fatal, not that to which it is damaging. I hope that I have made myself clear on that slightly complicated point, and I should be grateful for the Solicitor-General's view.

Harriet Harman (Labour, Camberwell and Peckham)

The hon. Gentlemen have made the same point, but with slightly different examples. The hon. Member for Woking was probing why the prosecution must say, before applying for leave to appeal, that they will throw in the towel if they lose. He asked whether there could be a case in which a ruling is very damaging but could not be predicted to be fatal, so what is the logic of

retaining stopping with terminal? That is a good question and we should think about it.

We did not want to be widespread and allow a thousand flowers to bloom with everything happening in the Court of Appeal instead of at first instance. We wanted to take a narrower and more cautious approach, but the boundaries of logic can soon be tested. We will think about the point made by the hon. Member for Woking.

The hon. Member for Somerton and Frome made the same point in relation to a two-handed case and what happens if it is terminal in relation to one. That is clear, but if it is seriously weakening in the second case, that returns to the point made by the hon. Member for Woking and we will have to think about that.

Amendment No. 941 omits ''against a defendant'' in clause 49(1)(a) and is a simplification of the wording in the light of other changes to accommodate multiple defendants and defences. The hon. Member for Woking will be delighted to know that it is not a complication but a simplification.

Amendment No. 942 replaces the words ''a fresh trial'' with ''fresh proceedings'' and is, thank goodness, another simplification which is not intended to be a substantive change. I thought that the hon. Gentleman was going to ask me the difference between a fresh trial and a retrial. I know the answer, but he has not asked the question, so I shall not give the answer.

Humfrey Malins (Conservative, Woking)

I am not sure that I know the answer, and if the Minister knows it, it would be helpful if she would tell me, so that I also know it.

Harriet Harman (Labour, Camberwell and Peckham)

I walked into that one. A retrial is when there has been a trial but the jury were unable to agree and the proceedings start all over again with a fresh jury and a fresh judge. A fresh trial is when the original trial was abandoned part of the way through and the case goes to the Court of Appeal and is sent back for a fresh trial.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

They sound the same to me.

Harriet Harman (Labour, Camberwell and Peckham)

The Committee will immediately see the intellectual distinction between the two.

Humfrey Malins (Conservative, Woking)

I am grateful to the Solicitor-General. I think that she has recognised that there may be some merit in our query about the point on clause 52 relating to the prosecution throwing their hand in. I am pleased that she has given me that response and will give it further thought. What she has said may be right, but if she will look at the matter again, I shall be grateful.

Amendment agreed to.

Amendment made: No. 942, in

clause 49, page 31, line 44, leave out

'a fresh trial of the defendant'

and insert 'fresh proceedings'.—[Ms Harman.]

Question proposed, That the clause, as amended, stand part of the Bill.

Humfrey Malins (Conservative, Woking)

May I begin my remarks by adding my thanks to those of the hon. Member for Somerton and Frome for the chart that the Solicitor-General has given us, which we shall consider in due course in connection with the procedures when the appeals take place? However, we are dealing now with terminating rulings, and I want to put on the record precisely what we mean and do not mean by that phrase.

I think that it is generally understood that a terminating ruling is one which terminates a case. There can be no issue about the two categories, and I hope that the Minister will confirm that the order of no case to answer and the issuing of a stay of proceedings as a result of an abuse of process are both terminating rulings. They are both undoubtedly, even in layman's terms, rulings that terminate a case: it is goodbye to the case. Will the Solicitor-General confirm that they are two terminating rulings and that, if a jury is discharged for one reason or another, that is not a terminating ruling but merely a ruling to discharge a jury? When a jury is discharged, it is a matter for the Crown whether it starts again: sometimes it does and sometimes it does not.

The two classic terminating rulings of a stay for abuse of process and a submission of no case to answer are well known to us all. Before lunch one or two examples were given of a stay for abuse of process. ''Stay'' is a more general term even than a stay for abuse of process. I suspect that one that may crop up in the future is a stay on the basis that one cannot get a fair trial because of the likely publicity—an infringement of article 6, I believe. Abuse of process is well known, and I do not need to go into it further now.

The submission of no case to answer is also interesting. It occurs when the position has been reached that there is some evidence, but it is extremely tenuous and inherently weak. If the judge concludes that the Crown evidence, at its highest, is such that a jury properly directed cannot properly convict, it is his duty on a submission to stop the case. That happened in the famous case of Galbraith.

At any stage during a jury trial the jury has a right to acquit of its own volition. From time to time the jury will send a note through saying, ''We've had enough of this. This defendant is not guilty. That is the end of the story. We don't need to go any further, thank you.'' However, the jury's decision cannot be put into practice without further observations from the judge. It boils down to what is very similar to a submission of no case to answer from the counsel, but this time the jury is saying, ''We will not convict. That's it.'' The jury has an inherent right to do that. What happens in that situation? Is that a terminating ruling? If not, what would be the consequences? If it is, would the prosecution have any right to appeal?

I do not know whether there are any other terminating rulings. I expect that the Solicitor-General will in due course tell me that several other rulings fall in another category and are, therefore, subject to slightly different rules; for example, the simple rulings that a judge may make at any stage during a case. There are so many, some of which are

major ones, that it would be helpful to know against which the Crown will be able to appeal.

The Solicitor-General mentioned the sort of ruling in which a piece of evidence is excluded by the judge. Such evidence may be a main plank of the prosecution case, such that its exclusion condemns the prosecution to certain failure. The prosecutor may say that he cannot carry on if a key piece of evidence is excluded. For example, evidence from an identification parade or identification on a voir dire—a trial within a trial—may be excluded by the judge. The judge is not stopping the trial by giving a terminating ruling, but he is excluding prosecution evidence so that the prosecution cannot possibly proceed. That would effectively result in an invitation by the prosecution to the judge to direct the jury—the defendant would be in the jury's charge at that point—to find the defendant not guilty because the prosecution will offer no further evidence.

There are many other examples of evidence that may be ruled in or out, for example, under section 78 of the Police and Criminal Evidence Act 1984 or under whatever the Bill says about day-to-day rulings. I have forgotten our discussions about evidence earlier in our proceedings. Are any rulings simply not appealable? There are some trivial rulings. For example, the judge may rule that he does not want counsel to ask a question. No one in their right mind would consider that such a ruling could possibly be subject to any form of appeal.

My observations at this stage relate to what I understand to be terminating rulings. If I have missed any, I am sure that we will come on to them later.

James Clappison (Conservative, Hertsmere)

Let me take my hon. Friend back to his earlier remarks about the finding of no case to answer. Will he confirm that that usually, if not invariably, results in the judge inviting the jury to enter a verdict of not guilty?

Humfrey Malins (Conservative, Woking)

Indeed, my hon. Friend is right. In such a case, the judge will simply say to the jury, ''I have heard the legal argument and found that there is no case to answer. Therefore, members of the jury, I invite you to produce a verdict of not guilty on the defendant in your charge.'' I fear I have been somewhat discursive.

James Clappison (Conservative, Hertsmere)

If the defendant has been told that he is not guilty, does not it follow that events should occur as quickly as possible if there is any prospect of an alteration to the verdict? An appeal against the terminating ruling may result in a retrial in which there would be the possibility of a fresh verdict of guilty.

Humfrey Malins (Conservative, Woking)

Yes, my hon. Friend makes a good point, which brings me on to an even better point. It occurred to me while I was listening carefully to his intervention. There must be a difference between a ruling by a judge that proceedings be stayed because of abuse of process, for example, and a not guilty verdict from the jury, which would follow a submission of no case to answer.

Stephen Hesford (Labour, Wirral West)

I take the point of the hon. Member for Hertsmere (Mr. Clappison). In

practice, if the prosecution are alive to the notion—because the submission is taking place they are presumably alive to the consequences—the court would be minded not to take the full step of getting a not guilty verdict. It would be interlocutory. If the decision went one way or the other, one would come to the formalities at some other stage. One would not be overturning a not guilty verdict, but making an interlocutory appeal against the terminating ruling.

Humfrey Malins (Conservative, Woking)

The hon. Gentleman may be right. In a situation under future law as we imagine it, on a submission of no case to answer accepted by a judge, he will not go that extra step and say to the jury, ''Bring in a verdict of not guilty,'' because he would be aware that the interlocutory appeal was effectively against his ruling.

Stephen Hesford (Labour, Wirral West)

But it would be incumbent on the prosecution to put the judge in mind of that.

Humfrey Malins (Conservative, Woking)

I suspect that that is right.

The Committee is entitled to hear about such matters. At first glance, I thought that my observation that there was a big difference between a jury being directed to find a verdict of not guilty and a judge staying a trial for whatever reason was quite a good point. Through the help of the hon. Gentleman's intervention, I think that we have probably cleared up the difference. That concludes my remarks on terminating rulings and the meaning thereof, but there will be other debates on other aspects later.

David Heath (Liberal Democrat, Somerton and Frome)

I have one point to add to what the hon. Gentleman has usefully been saying about the definitions. It is an area into which I stray with some trepidation as a non-lawyer. I believe that I am right in saying that one terminating ruling might be a direction of nolle prosequi. Were that to be the case, I am not clear that that is a ruling by a judge of the Crown court, because it is a direction from the Attorney-General. I am not clear whether that is actioned by a ruling of the judge in court and therefore can be appealed against. Would the Solicitor-General help me on that point? It seems to me that there ought to be some right to appeal against that particular direction. I have thought of a mechanism by which it could happen.

Harriet Harman (Labour, Camberwell and Peckham)

The hon. Member for Woking helpfully set out the two major examples of terminal ruling. First, for an order that there is no case to answer, the judge will say, ''The case is too weak and there is insufficient evidence. I have to direct the jury that it cannot convict on the basis of the evidence; it just doesn't come up to scratch.'' Secondly, there is a stay for abuse of process. That might be, for example, a case in which someone cannot get a fair trial because of publicity.

A jury discharged is not actually a terminating ruling, and that is made clear in the Bill. It is a matter for the Crown whether it starts again. It might be decided that the case has been gone through, all the witnesses are exhausted and it cannot proceed for those and other reasons. That is not a terminating ruling; it has been excluded. Discharge of individual jurors is also excluded. The judge can make orders

ruling for individual jurors to be discharged, but that is not regarded as a terminal ruling or appealable.

The hon. Gentleman asked about when a jury acquit of their own volition. Emphatically, the prosecution have no right of appeal against a jury's decision at any stage to come in with an acquittal. That is not on the agenda here. This is about moving from one judge—a first instance judge—up to a higher court. It is not about using the higher court to overrule the jury. That is not the case, and one can see that on the face of the Bill.

There are other examples of terminal rulings, such as that in case 4, which terminated the case but was not really recognisable as a no case to answer or a stay. The judge dismissed the case before the evidence had been called. A real example is that the defendant pleaded not guilty to the charge of possessing an offensive weapon. Before the prosecution could call their evidence, the judge directed an acquittal because he thought that a conviction was unlikely. On a reference by the Attorney-General under section 36 of the Criminal Justice Act 1972, which allows references to the Court of Appeal against such rulings, the Court of Appeal held that the judge had no power to make the ruling. If the Attorney-General already has an opportunity to take up such matters with the Court of Appeal, people might wonder what are we are doing.

James Clappison (Conservative, Hertsmere)

We cannot do anything about it.

Harriet Harman (Labour, Camberwell and Peckham)

The hon. Gentleman has anticipated my saying that the review would not sort out that trial—it sorts out the law. It might shoot across the bows of a particular judge, but it does not actually do justice in that particular case because the case has fallen by the wayside. It is a technical, backward-looking review, but the judge directed an acquittal.

That leads me neatly on to the point raised by several hon. Members: how can one have an appeal against a ruling when the effect of the ruling is that the defendant is acquitted because the case has fallen? The answer is that there is a sort of ruling interruptus whereby the judge, about to make his ruling, and because he knows he is going to do so, stops and says, ''I am minded to make this ruling,'' which would be terminating. In future, when judges are about to make rulings that are unequivocally terminating, they will have to give an indication in advance that they are minded to do so. The judge will say, ''I have heard arguments from both sides. I am minded to make this ruling in this case,'' which will have the effect of terminating it. That gives the opportunity for the prosecution to say either, ''We are going to apply for leave to appeal,'' or, ''Can we please have an adjournment overnight while we consider whether to apply?''

That is where we get to the process map. Hon. Members have already forced me to amend the chart. What I should have put is, ''Proceedings in Crown court—judge indicates 'minded' to make terminal ruling''. Of course, he does not actually make it. If he had made it, the case would have been terminated.

James Clappison (Conservative, Hertsmere)

I am grateful for the important point that the Solicitor-General has made. Will she

confirm that what follows the scenario that she has described—where the judge has said that he is minded to make such a decision and the prosecution will then decide whether they want to enter an appeal against his terminating ruling—is that it is the end of that trial and it is for the Court of Appeal to decide whether there will be a fresh trial?

Harriet Harman (Labour, Camberwell and Peckham)

The answer to that is not necessarily, because the judge can decide at that stage. If a jury are empanelled for a long trial, they have agreed that they are free for, say, three months. If the trial has gone a long way and it is possible to get up to the Court of Appeal in three days, why discharge the jury and make another jury go through three months' worth of evidence when one can have a quick, interlocutory application up to the Court of Appeal to decide a point in the case? If it is a complicated point of law, and if the prosecution want to make something long and complicated out of it and the defence want to think carefully about how to deal with it, people might think that the jury will not be able to remember what they have heard. Therefore, the judge might say, ''On the basis of what we must now make the Court of Appeal decide, I shall discharge the jury''. If the Court of Appeal strikes down the judge's ruling, we get what we now know as a fresh trial.

James Clappison (Conservative, Hertsmere)

We must be careful before assuming that a case can go to the Court of Appeal within three days and that it will all be heard quickly. Will there not be a problem with the type of case in which the judge is minded to enter a finding of no case to answer on the basis of what he has seen of the prosecution witnesses? He may find them unsatisfactory and unreliable and may not be willing to risk a conviction being founded on their evidence. Will the Court of Appeal then have to go through all that evidence, which has been tendered at second hand, and try, without having the benefit of seeing the prosecution witnesses, to second-guess the judge's decision?

Harriet Harman (Labour, Camberwell and Peckham)

To some extent that happens on a defence appeal, but the answer is yes. In a no case to answer ruling, the Court of Appeal must look at the judge's ruling. To the extent that the judge makes a ruling about evidence that the court has heard, the Court of Appeal might have to refer to the transcript.

James Clappison (Conservative, Hertsmere)

The Solicitor-General is not quite on my point. I understand what she means when she says that that is what happens in appeals by the defence to the Court of Appeal, but in those cases there has been a conviction and the trial has come to an end. My point was one of time. How will all that happen in a time scale that allows the trial to be continued? The Court of Appeal will have to go through all the evidence tendered by prosecution witnesses to decide whether the judge was right in taking a dislike to them and not having confidence in their evidence, without being able to hear those witnesses, and will therefore necessarily have to go through the transcript of the trial.

Harriet Harman (Labour, Camberwell and Peckham)

The hon. Gentleman makes an important point. It was the second point that I responded to when I began my reply. The first was whether, in principle, it is fair and a good idea, and the second was whether it is workable.

An assessment will have to be made of the length of time that the process will take. If it will take a long time, because the Court of Appeal is busy or the issue is long and complex and affects many other cases, the judge will be likely to discharge the jury and start a fresh trial with a fresh jury. Therefore, an assessment will have to be made whether to ask the jury to hang about or to discharge them. That goes to whether there will be an expedited process—the procedure with which we shall deal later. The trial judge will either say, ''This will be an expedited trial. I want it expedited because I have the jury here in my sight. The evidence is fresh in our minds. We want the case expedited,'' or he will say, ''We haven't started the trial yet. The jury is not even empanelled,'' or, ''We have only had the first day. I don't want it expedited.'' The trial judge will decide which of the two paths to take—expedited or not expedited.

Humfrey Malins (Conservative, Woking)

I may have missed something, but what is the position if a terminal ruling is made by a district judge? Does the appeal go to the Crown court or to the Court of Appeal? Do we need legislative measures to secure an arrangement whereby a terminating ruling from a district judge goes to the Court of Appeal or the Crown court?

Harriet Harman (Labour, Camberwell and Peckham)

Terminating rulings by district judges are not appealable under the clause. They are not affected.

The hon. Member for Somerton and Frome asked about entering a nolle prosequi. Of course, the prosecution enter the nolle prosequi, and would not be likely to appeal against their own nolle prosequi. It is a way of stopping a case other than through the jury; the hon. Gentleman is right about that. There are three ways to stop a case: nolle prosequi, the jury or the judge. There can be no appeal against anything that the jury do to end the case. Nolle prosequi is entered by the prosecution so it is hardly likely to be subject to a prosecution right of appeal. We are talking about the judge's ruling to terminate a case.

The hon. Member for Woking asked me about a case where counsel wants to put a question and the defence argue that they do not want the question put, thus leading the judge to tell the counsel not to put the question. It might be critical. In the absence of the jury, they might all carry out legal argument about whether the question can be put. Are we thinking about a defence application in relation to the cross-examination of a prosecution witness, or are we thinking about a prosecution application in relation to cross-examination of a defence witness? A terminating ruling is like an elephant. One can recognise it when it comes lumbering through the doors of the court. If it looks like a terminal ruling, it is appealable.

Humfrey Malins (Conservative, Woking)

I am slightly stunned, but I think I get the point. If it looks like an elephant, one recognises it. I assume that within the ambit of non-terminating

rulings, there is an application to treat a witness as hostile that is refused.

Harriet Harman (Labour, Camberwell and Peckham)

There might be. The hon. Gentleman can have a quick butcher's at clause 52, and advise me about the answer to that.

I think that I have dealt with all the points that have been made. If I have not, we shall be returning to the current territory under subsequent amendments.

Question put and agreed to.

Clause 49, as amended, ordered to stand part of the Bill.

Clause 50 - Prosecution right of appeal

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 985, in

clause 50, page 32, line 6, leave out from 'evidence' to end of line 7.

We now come to the even more interesting clause 50. Although colleagues will want to make observations in relation to clause stand part, my duty is to speak to the amendment.

Amendment No. 985 is a probing one, which does not need to be pursued seriously. I was seeking to omit the prosecution's right of appeal in relation to a ruling that there is no case to answer. I accept what the Minister has told us under clause 49, so I beg to ask leave to withdraw the amendment.

James Cran (Conservative, Beverley and Holderness)

It is not moved.

Amendments made: No. 943, in

clause 50, page 32, line 10, leave out '51(3)' and insert '51'.

No. 944, in

clause 50, page 32, line 18, leave out '52(2) and (4)' and insert '52'.—[Ms Harman.]

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 986, in

clause 50, page 32, line 25, after 'jury', insert 'or a juror'.

Subsection (7) states specifically that the prosecution have no right of appeal in respect of a ruling that a jury be discharged. That is understandable. I inserted ''or a juror'' because it is a much more frequent occurrence in court for one or more jurors to be discharged. Sometimes there can be quite an argument about whether a juror should be discharged.

For example, I recall a case in which someone was charged with possession of cannabis. The jury were sworn and then one of the jurors stood up and said, ''Your honour, I do not think that possession of cannabis should be an offence, so I do not think that this is much of a business anyway.'' There followed tremendous argument about whether that juror should be discharged. The defence counsel took the view that it was helpful to keep the juror on board, while the Crown, not unnaturally, took the view that it was not so helpful. Eventually, the judge said to the juror, ''Well, never mind your personal views. Do you think that you can give the defendant a fair trial on the evidence?'' The juror said, ''Of course I can. I am just telling you my personal views,'' and the trial continued, so it was not a big issue.

Jurors do get discharged from time to time. The clause states that there is no right of appeal against the discharge of a jury, but the fact that the words ''or a juror'' are not in the subsection makes me wonder how I know it to be the case that there is equally no right of appeal in relation to the discharge of one or more jurors. That is the reason behind my amendment.

Harriet Harman (Labour, Camberwell and Peckham)

As in the hon. Gentleman's example, the prosecution and the defence can argue about whether it is right for a juror to be discharged, and that will carry on. The question is whether the prosecution need a right to appeal to the Court of Appeal about the juror. Up to three jurors can be discharged during the course of a trial and the trial can still go on. Therefore, it was decided not to include that provision: it is not included because the trial can carry on. There is no right of appeal.

Humfrey Malins (Conservative, Woking)

That was a helpful response. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause, as amended, stand part of the Bill.

David Heath (Liberal Democrat, Somerton and Frome)

I just want to ask the Solicitor-General about subsection (6) and the question of the leave of the judge who made the ruling. In what circumstances could a judge not give leave for an appeal against a ruling that he or she made? The subsection is silent on the grounds that the judge will consider when deciding whether to give leave. Does the Solicitor-General have guidance that she would want to make known to a judge when exercising that discretion?

Humfrey Malins (Conservative, Woking)

We do not yet move on to the timings, which, I think, are dealt with under clause 51. I see the Solicitor-General nodding. There are a number of issues that I want to raise in relation to this clause. I need her help to decide in my own mind what subsection (1) means. It states quite plainly that the prosecution have

''a right of appeal . . . in respect of a terminating ruling''—

well, we know what one of those is—

''which is made before the time when the jury is sworn''.

I leave aside the observation that it seems strange that all these rules apply to Crown court trials, whereas most trials take place before magistrates or district judges. There appear to be no similar rights for the prosecution there. My point is that a terminating ruling made before the time when the jury are sworn is quite likely to be an abuse argument—for example, on the fair trial point—and I understand that. However, the next part of the subsection is difficult because the right of appeal exists in respect of terminating a ruling that is made after that time but before the conclusion of the prosecution's evidence. That means that if a ruling is made before the conclusion of the prosecution evidence, there is a right of appeal, but if it is made afterwards there is not a right of appeal, and I should like to know why.

For example, it is possible to envisage a situation in which the Crown's evidence is completed. The Crown says, ''Your honour, that is the case for the Crown.''

Immediately thereafter, an argument comes from the defence that the defendant has only been able to form a view about the nature of their application, namely an abuse argument, as a result of listening to all the Crown's evidence. It may be that the abuse argument takes place only after the conclusion of the Crown's evidence. Indeed, it may be that the abuse argument can be made only later in the case because the facts that give rise to it may not happen until after the Crown case is completed. I have invented that case, but it might well happen because notes are often passed in court from one person to another.

Envisage a situation in which at the conclusion of the Crown case a note, which has been passed by the officer in the case to the chief Crown witness who is another police officer, is discovered—this will not happen in practice, because the police have integrity, but we need to get the law right. Imagine if the note were found in a wastepaper basket just after the defendant had given his evidence. The note states, ''Dear Fred, your evidence was good—we both know he's not guilty of this one but he's guilty of lots of others, and I think we've got him potted this time,'' signed John. That note is from the chief officer in the case to the chief Crown witness.

At that stage, there will be an application for a stay for abuse of process. Indeed, the evidence for abuse of process arguments may crop up only later in a case, which is why I have queried whether the prosecution have the right to appeal on terminating a ruling. The right is limited to something that happens before the conclusion of the prosecution's evidence. I can think of all sorts of rulings that might be made later in cases that are not covered by the provision: for example, rulings well after the prosecution evidence has been completed concerning whether the defendant has good character. Such rulings can be made at any stage during a case. That also applies to the ability to allow or disallow a particular piece of evidence. My query is on why there is a limit on the timing of a ruling, although the Solicitor-General has obviously dealt with the issue of the district judge.

Subsection (9) states that

''a ruling that there is no case to answer includes a reference to a ruling that a jury properly directed cannot properly convict''.

That seems to be an unnecessary addition, as the one is exactly the same as the other. It is another way of saying that a ruling that there is no case to answer means a ruling that a jury, properly directed, cannot properly convict. I have no idea why that provision is in the clause, as it adds nothing to the sum of our knowledge, and the Solicitor-General may want to take it out.

James Clappison (Conservative, Hertsmere)

I wish to raise a query about subsection (3). In his earlier remarks, my hon. Friend the Member for Woking rightly asked the Solicitor-General whether there was to be a prosecution right of appeal in rulings other than terminating rulings. I suspect that the answer may lie in subsection (3), which appears to give the prosecution a right of appeal against rulings made by judges that are not terminating rulings. However, it

seems evident from the clause, from what follows in clause 52 and from what the notes on clauses say about subsection (3) that such an appeal will take place only in respect of serious rulings for the prosecution case:

''rulings which are so damaging to the prosecution case, that, but for the right of appeal, the prosecution would terminate its case.''

I understand that, but I want to ask the Solicitor-General how it will work in practice.

Under subsection (3) the prosecution has the right of appeal against rulings made by the judge either before the jury are sworn, which is paragraph (a), or after they have been sworn but before the conclusion of the prosecution evidence, which is paragraph (b). The Solicitor-General will know that it is common for such rulings to be made in the absence of the jury after they have been sworn. There may be hearings in the absence of the jury on matters relating to, for example, the Police and Criminal Evidence Act 1984 or the admissibility of interview evidence, which may be important to the prosecution case.

Under subsection (4) it appears that that right of appeal will be subject to clause 52(2) and (4). If the prosecution decide to enter such an appeal, it is a nuclear option. If they take an appeal to the Court of Appeal and they are not successful, they must throw their hand in and abandon the case. How will that work in practice? In particular, what happens to the original trial and jury while those proceedings are taking place? In the scenario envisaged in the clause, the jury have been sworn in, evidence has been heard in their absence, the prosecution do not like the judge's ruling and they appeal it to the Court of Appeal. What happens to the original trial and jury?

The case may go to the Court of Appeal, which may decide to uphold the judge's ruling. If it does, the prosecution must throw their hand in: the case must go back to the court. What happens if the Court of Appeal decides to allow the prosecution's appeal? Does the case go back to the original jury or will there be a fresh trial? We want to hear a little about that. Without further guidance from the Solicitor-General, that scenario seems to envisage the original trial and jury being left hanging in the air while the Court of Appeal reaches a decision on the prosecution's appeal. How will it work?

Harriet Harman (Labour, Camberwell and Peckham)

The hon. Member for Hertsmere asked why it had to be the nuclear option. I said that the intention was that it should be constrained narrowly to only the most serious cases, but the hon. Member for Woking referred to fatally weakening cases where it would not be right to take only the nuclear option, and I said that I would consider that question.

If the case went to the Court of Appeal and it found against the prosecution, the case would go back to the trial judge, who would direct an acquittal—assuming that the proceedings had been adjourned, as opposed to the jury having been discharged. If there were no jury waiting for the case to return, the case would simply not restart. It would depend on whether the matter was expedited or not.

David Heath (Liberal Democrat, Somerton and Frome)

In that instance, would the defendant have been acquitted? No jury would have been directed to acquit.

Harriet Harman (Labour, Camberwell and Peckham)

No. The defendant would not have been acquitted. It is still the case that once the defendant has been acquitted, that is it, in the context of these provisions. We are not dealing with double jeopardy. Once the judge has directed the jury to acquit the defendant, or the jury have acquitted him, that is it.

David Heath (Liberal Democrat, Somerton and Frome)

Perhaps I did not explain myself very well. From what the right hon. Lady said, I take it that if the jury is still available, that is fine; I understand that. If the case is sent back to the jury and the judge gives a direction to acquit, the person is acquitted. However, she said that if the jury have been discharged, proceedings will simply not be restarted. That will, as I understand matters, leave the indictment standing. No acquittal will have been entered.

Harriet Harman (Labour, Camberwell and Peckham)

If the Court of Appeal confirmed the judge's ruling and did not allow the prosecution appeal, it would order an acquittal under clause 55, which we have yet to reach. When we do, all will become clear.

I do not know whether I have yet dealt satisfactorily with the point made by the hon. Member for Hertsmere.

James Clappison (Conservative, Hertsmere)

I was not challenging the nuclear option—it just seemed an appropriate way to characterise clause 52(2) and (4). I really wanted to know about timing. The Solicitor-General has dealt with what would happen if the Court of Appeal decided to uphold the ruling under clause 55. What would happen if it disagreed with the judge's ruling, overturned it and ordered the case to be sent back? Would it then be tried by the original jury, who presumably would have been waiting while the case was adjourned?

Harriet Harman (Labour, Camberwell and Peckham)

It would depend on whether the jury had been discharged. If the jury were still empanelled for the case, that case could return to the same jury. When legal arguments are necessary, the judge hears arguments in the jury's absence, and the jury must wait. Effectively, instead of the jury waiting while legal argument took place in their absence in the court where the case was being tried, they would wait while legal argument took place first in that court and then in the Court of Appeal. However, if the process was likely to be prolonged, the judge would discharge the jury and the case would not be dealt with as a fast-track procedure.

The judge, wanting the case expedited, might decide to keep the jury and nip quickly to the Court of Appeal, only to find that the Court of Appeal could not hear it because all its cases had overrun. In that case the judge would have the option to decide to discharge the jury, matters having turned out more complicated than he thought. Decisions would be made on a case-by-case basis, depending on whether the jury were waiting for the case to be sent back from the Court of Appeal, or whether they had been

discharged. If the prosecution objection were upheld, a fresh trial with a new jury would be held.

The hon. Member for Woking asked why, under subsection (1), the right of appeal exists only up to the end of the prosecution case, or when there is no case to answer. He asked about a terminal ruling, other than no case to answer, coming after the prosecution case. However, the Law Commission report, from whence the provisions sprang, goes straight from what happens during the prosecution case to a ruling of no case to answer, so the answer is not immediately evident. I am sure that there is a good reason for that, but I will have to get back to the hon. Gentleman.

The hon. Gentleman asked about subsection (9). It might not be necessary to drag this out, although it might be—[Laughter.] This is a serious point. The provision was included because there may have been a problem otherwise. A ruling of no case to answer can be made if there is no evidence that the defendant committed the alleged offence, or if the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict on it. The first limb is regarded as a point of law, while the second involves the judge coming to a conclusion on the evidence. Subsection (9) is intended to ensure, for the avoidance of doubt, that the expression ''no case to answer'' is readily construed as encompassing both limbs.

Humfrey Malins (Conservative, Woking)

Was there any doubt about that?

Harriet Harman (Labour, Camberwell and Peckham)

Well, one never knows. There might have been a doubt in future cases, so why not avoid it? We should seek to avoid doubt, as long as we are clear about why we have included the provision.

The Law Commission took the view that the vast majority of terminating judicial rulings took place during the prosecution case. It therefore recommended that the right of appeal should be available up to the end of the prosecution case, as we discussed. However, we are also aware that the judge may withdraw a case from the jury at any point during the trial, following a ruling of no case to answer. We are aware that there is some inconsistency in the clause, and we are considering how best to approach the issue. We will note the hon. Gentleman's points when considering it. Indeed, there has been some mind-reading going on, and his mind has already been read. His points are well taken, and I hope that I have dealt with them all.

David Heath (Liberal Democrat, Somerton and Frome)

The Solicitor-General did not deal with the circumstances in which a judge might not grant leave.

Harriet Harman (Labour, Camberwell and Peckham)

I beg the hon. Gentleman's pardon. On what basis will the trial judge or, indeed, the Court of Appeal decide when to grant leave? The trial judge will hear the prosecution argument, and if he thinks that it is entirely without merit—that it is one of the worst arguments that he has ever heard—he might not be happy to give leave. He might think that the Court of Appeal will say, ''Why on earth has this judge given leave? Why is our time being taken up with this entirely unmeritorious point?'' If it is an open and

shut case, therefore, he might be minded to refuse leave, and the prosecution can apply to the Court of Appeal for leave. If he thinks that it is a difficult, agonising decision, however, he is likely to send it to the Court of Appeal. I think that the parameters for deciding applications for leave will become clear to judges once the Court of Appeal starts handling these issues.

The rules governing applications for leave will be the same as those that apply to everything else. Leave is basically a tripwire, which will ensure that really unmeritorious cases do not get through. In the Law Commission's report there is some discussion about whether that tripwire should be ''only with the DPP's consent'', or only ''referred as by the Attorney-General''. We have dealt with the matter by saying that leave must be granted. In that way, the Court of Appeal will not find itself obliged to hear arguments that it does not really think that it should be hearing.

James Clappison (Conservative, Hertsmere)

Will there be a process for the seeking of leave to appeal to be expedited?

Harriet Harman (Labour, Camberwell and Peckham)

A case will either be expedited or not. There are two aspects: the application for leave and the hearing. The application has to be expedited in that it must be done on day 2. The applicant cannot hang around considering whether it applies; he must make his mind up and go for it. The Court of Appeal's hearing of an application for leave, its having been refused by the judge in the first instance, will depend on whether it is an expedited case.

Question put and agreed to.

Clause 50, as amended, ordered to stand part of the Bill.

Clause 51 - Appeals against terminating rulings

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 987, in

clause 51, page 33, line 4, after 'adjournment', insert

'which shall be for a maximum of one day'.

We come now to some vital issues, which are encompassed by the one word ''timing''. That is critical and the amendment is designed to tease it out. It relates to the prosecution's request for an adjournment to consider whether to appeal and the obligation on the judge to grant such an adjournment.

We have to get real, as I have often said on this Committee, and consider what happens in court. We might like to think that every case is handled by Kavanagh QC, or somebody of such erudite standing in the legal profession as the Solicitor-General, but that is not the case. As often as not, cases are handled by some young barristers, barely called, or by those who are so old that they have forgotten everything and are doddering around. They are not always of the calibre that is found at the top end of the Bar, which can be a problem. In practice, it means that the prosecutor will say that he would like an adjournment in order to consider whether to appeal. The amendment insists that the adjournment should be

for no more than 24 hours, because the Bill specifies no time limit within which the decision to appeal or the application must be made. Am I wrong? Is a time limit specified anywhere in the Bill so far as that adjournment is concerned?

Normally, when appeals are made from magistrates courts to the Crown Court or from the Crown Court upwards, there are strict time limits. If one does not abide by them, one is in deep trouble—one has to apply for leave to apply out of time. The prosecutor, who has requested an adjournment under subsection (3)(a)(ii) to consider whether to appeal, must have, by statute, some constraint upon him to decide quickly. If he has not, what will happen in practice is that the prosecutor will request an adjournment in order to consider the matter, and when asked how long he would like he will say, ''Well, I am going on holiday tomorrow and I need to speak to my head of chambers and take advice. In fact, I only got into this case this morning because my fellow barrister who knows all about it got a much better case and I was given the dross. That is why it is before you and why I am here today.'' That is the sort of thing that is often said. The barrister will ask for a week, a fortnight or five days. Where is the constraint that I seek to impose on him to make up his mind within 24 hours, one way or the other, on whether to take advice?

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Gentleman is making an important point about time limits, but does he actually mean 24 hours or a sitting day?

Humfrey Malins (Conservative, Woking)

The amendment was badly drafted. I really mean a sitting day, which is much better—indeed, one might say overnight. Again, the consequences on timing are very severe if the barrister comes back to court and says, ''I have been advised by those in my chamber who are more senior that it is a good idea to appeal because we can get legal aid for it, which is helpful to us.'' The prosecutor will make his decision known to the judge, who must then grant an adjournment.

This is a serious issue. What is the judge to do? First, how does he get the barrister back the next day? What does he say to the jury? ''Members of the jury, the barrister needs time to sort out certain matters. I have made a potential ruling today and the barrister wants to consider whether to appeal. Today is Monday, but he cannot come back until Friday.'' What are the jury to do? ''Can you come back on Friday? You must observe my stricture. You cannot talk about the case except among yourselves.'' Under the Bill, the jury is sent back into the real world without the slightest indication of how long they will be there. That is the problem.

If the barrister says that he will appeal, there is the absurd business of an expedited appeal to the Court of Appeal, but there will be no such thing. Can the Solicitor-General guarantee that appeals to the Court of Appeal will be heard within two or three days?

James Clappison (Conservative, Hertsmere)

Will my hon. Friend bear in mind the fact that not only will we have to have expedited appeals but we will also have to have expedited leaves to appeal in cases in which the initial judge has decided not to grant leave to appeal?

Humfrey Malins (Conservative, Woking)

My hon. Friend is absolutely right. If there is an initial refusal, there might have to be an expedited application for leave to appeal with the consequential follow-on delays. However, if an appeal to the Court of Appeal is to take place, there is no chance that it will be heard the next day. Apart from anything else, how will the court receive the papers? In any court, there has to be not just a résumé but a complete record of every word that has been said in the trial. Such records are not made overnight. A shorthand writer has to set everything out and, in addition, counsel on both sides and the judge must have an opportunity to read through the record to agree the transcript. Otherwise, it might go out in an inaccurate form.

How long does such a review take? How long does it take to produce a transcript of the trial? How long does it take to get a hearing before the Court of Appeal? Is the Solicitor-General saying that such cases would not occur more than once a year? If there were many of them, it would be impossible to envisage hearings taking place within a week or two weeks.

What happens if the judge does not seek an expedited hearing? Why should it be expedited? What is the difference between a non-expedited and an expedited hearing? An expedited hearing will be heard quickly, but a non-expedited hearing may be heard considerably later. There is a tremendous problem about what to do with the jury during the interim period, which could run to many days. What will happen to jurors who are doing their fortnight, which is usually the time that one spends on a jury, and who start, perhaps, a third trial, which has been listed for three days, on Wednesday of the second week? The trial is to finish on Friday, but if there is a ruling on Thursday afternoon that will be appealed, the jury could be scattered for the next week or two, completely unable to reassemble for obvious, nuts-and-bolts, practical reasons.

What does the judge do meanwhile? Will he know straight away that the whole of the issue will be resolved within three to four days? What happens if the judge is asked, ''Can you start another trial?''? Court time will be wasted. Is it not much more likely that in practice judges will have to discharge juries? They will know that those things do not happen overnight, that it will take days, if not weeks, to reach a conclusion, and that it would therefore be much simpler to discharge a jury. That point brings me on to whether there would be a right to object to the discharge of a jury. Either the defence or the Crown might think that the case is going especially well or especially badly before a jury, and might have a view about discharging that jury.

Much will boil down to expense. The Minister knows, because there has been a parliamentary answer confirming it, that the cost of a Crown court amounts to some £8,500 a day. That was three years ago, and I am sure that the figure is well over £9,000 a day now. That is a huge expense. How many days will be wasted? Has anybody in the Home Office, in drafting the astonishing provisions that we are dealing with,

had any concept of the likely extra expense and burden that will be put on the Crown court system?

I might be utterly mistaken, but I have a feeling that there is a right of appeal from the Court of Appeal to the House of Lords. I hope that I shall be told to sit down straight away if I am completely wrong on that. However, clause 56 seems to give a right of appeal against a decision by the Court of Appeal to the House of Lords. If that is right, we have the whole thing all over again—that is, the Court of Appeal having to produce all the papers and the House of Lords having to deal with the matter. In short, unless we can inject into the Bill a mechanism whereby the appeals must be dealt with quickly and, in particular, the application for an adjournment must be made within 24 hours or one working day, the whole thing will be left loose. If that happens and a strict timetable is not imposed, there will be long and expensive delays that will not be in the interests of justice, the jury or the defendant. Hence, the amendment would ensure that the adjournment that the court gives to the prosecuting counsel to enable him to make up his mind as to whether to appeal is long or short—or an adjournment of some length or no length. We need to know.

David Heath (Liberal Democrat, Somerton and Frome)

It seems to me that the hon. Member for Woking has hit on a good point, which is that the provisions are silent on the appropriate length of the adjournment. That might be intentional, but it is left to the good offices of the judge in the High Court to determine what is appropriate. However, things could go either way. An especially irrational or impatient judge might allow a prosecution only a short adjournment to determine whether they wished to appeal. The judge might decide that his ruling was so transparently clear and non-threatening to the prosecution case that he did not intend to allow the prosecution appropriate time in which to consult on whether to proceed.

It is more likely that the reverse will be the case, and that there will be a delay in the process. I can envisage cases in which that is so because the prosecuting counsel is particularly dilatory, wants to take a skiing holiday when there are more important things to do, or whatever. In the case of admissibility of evidence, persons entirely outside the control of the prosecuting counsel could occasion the delay. For instance, in a public interest immunity case, the matter could be in the hands of a Minister, who might take a less than rapid approach to the subject.

There are inherent problems with having no indication of the appropriate length of the adjournment in which to consider the matter. The hon. Gentleman has a point. Frankly, I do not think that leaving a complete silence on the issue is in the interests of making the provision work effectively and efficiently. I hope that the Solicitor-General might accept that as a genuine point of view that should be addressed.

James Clappison (Conservative, Hertsmere)

My hon. Friend the Member for Woking has made some important points, and the hon. Member for Somerton and Frome was right to support him. It is in the same spirit that I raise another point with the Solicitor-General, which might be relevant in relation to the important question of time.

I hope that I am not being too pedantic, but I ask the Solicitor-General for clarification of what happens when there is no adjournment because, under clause 51(3), following the ruling, the prosecution must inform the court that it intends to appeal. How does the Solicitor-General envisage paragraph (a)(i) working? The prosecution must inform the court that it intends to appeal following the making of the ruling. What time scale is envisaged? Is it intended that it should happen before any other evidence is heard or at a later stage in the trial? The phrase

''following the making of the ruling''

seems to encompass both those options. We need some clarification on that.

My hon. Friend the Member for Woking is absolutely right in his general point that this must be done as quickly as possible in the interests of justice and, quite frankly, in the interests of administrative efficiency and saving public money, because in these cases time is money.

Harriet Harman (Labour, Camberwell and Peckham)

I will deal first with the question of costs. I refer the hon. Member for Hertsmere to the explanatory notes accompanying the Bill. Paragraph 668 says:

''The majority of costs to be incurred for additional prosecutor time and administration in prosecution appeals will fall upon the Crown Prosecution Service. It is estimated that various appeals and retrials will cost £1.3 million from the financial year 2005–2006. It is estimated that the Lord Chancellors Department will require seven additional staff, at a cost £0.2 million annually from the financial year 2005–2006 in relation to the additional appeal court capacity.''

That is as helpful as I can be on the issue of costs.

The amendment raises the question about the time limit. There have been attempts throughout the criminal justice system to reduce delays. That is the whole thrust, whether it is the prosecution, the Lord Chancellor's Department, judges or the police. Everybody is agitated about delay. It is bad news for the defendant and for victims. It is bad news for the whole criminal justice system and gives it a bad name, and everybody thinks, ''What on earth are they doing talking about a case that happened two years ago?'' Everybody realises that it is a very bad thing.

The prosecution right of appeal slows down a case. That is inevitable. It is allowing something to happen right in the middle of a case that cannot happen at present. Our view is that it is important and in the interests of justice not to have a judge's ruling that finishes off a case, which should have been able to be tried and put to the jury. That is unsatisfactory for the victim and very unsatisfactory for public confidence in the criminal justice system.

The points about delay are well made, but we should not allow them to override what we are trying to do. The hon. Member for Woking is probably trying to say that he agrees with the principle, but in order to make it not cause the delay, he is saying, ''Please put a time limit in the Bill.'' However, we have decided to do that by way of the court rules. That is why I have set out the rudimentary chart, although the timings are not rudimentary, because they have already been discussed between the prosecutors, the

court and the Court of Appeal. The chart is by way of my assurance. We have not written it into the Bill. I ask the Committee to reject the hon. Member for Woking's amendment and not write it into the Bill. However, I ask the hon. Gentleman to accept the assurance that when he says, ''These things need to be done overnight,'' that is exactly what is intended to happen. Even when the prosecution say that they would like an adjournment to consider whether the case will come back the next day and notify the court that they intend to appeal, at that point the Crown court officials will check with the Court of Appeal registrar. They will find out what the situation is and when the Court of Appeal might be able to hear the appeal. The next day, when the prosecutor returns and says, ''Yes, I do intend to appeal,'' the judge will have the information about how long it would take to go up to the Court of Appeal. They can then say, ''We should try to expedite this,'' or ''We cannot go.''

It is envisaged that on day one the judge will say that he or she is minded to give the ruling. Things will then swing into action. Overnight, the CPS will have to make high-level decisions. On day two it will become clear whether an appeal will happen, and the Court of Appeal will decide whether it is expedited. In an expedited case, the intention is that it will take place within a few days.

Let me say two things. First, I have been assured that that is the agreement that has been reached about how it should be done. That assurance has not been plucked out of the air, and an awful lot of work has been done on how it could be organised. Secondly, the reason why I can give the assurance is not only that everybody has been working on it, but that everybody is very determined to cut down the existing delays, and certainly not to allow new ones to burgeon.

Let me give the hon. Gentleman some helpful information about numbers. The Law Commission looked at the numbers issue. They looked at it by way of judges' rulings that gave rise to successful defence appeals in the Court of Appeal. We have looked at what the Law Commission has said about numbers and have made our own assessment. We concluded that—I will give the relevant chart to hon. Members, or write to them—annually, the total estimated number of appeals will be between 100 and 150, of which non-expedited cases will be 80 to 120 and expedited ones 20 to 30. That is the order of magnitude. I would hate to think that non-expedited cases were lolling about in a no man's land. Perhaps ''non-expedited'' is not the right word, because it implies a lack of urgency. However, in spirit, they all need to be on the front foot. Expedited is the fast track, but we do not want the non-fast track to be slow. Those are the numbers. People who have gone through this with a great deal of care believe that the timings that I have set out could be put into the court rules, ensuring that delay—we are all enemies of delay—will not be caused by this important change, which is a matter of principle. Delay causes a great loss of confidence in the criminal justice system.

I can see that the hon. Gentleman is girding his loins for an onslaught, by way of a vote on his amendment. I put it to him that we do not want to be

too rigid. It may well be that there are some cases in which a two-day delay is entirely reasonable. In principle, the right of the prosecution appeal is important enough not to have a primary legislation ruling. We would have to write it into the Bill that it would be possible to apply out of time, otherwise it would just be daft. Instead of writing one day to apply out of time into the Bill, why not have court rules in order to do it in one day? That is how we intend to proceed.

I ask the hon. Gentleman not to insist on his amendment, on the basis of my assurance.

Humfrey Malins (Conservative, Woking)

The Solicitor-General is doing her best with a poor set of cards. Sometimes one is dealt a strong hand at bridge, and sometimes not, and she has not been dealt a strong hand in this case. It is not her fault, but she is unable to deal with the issues that have been raised, not least the good point made by my hon. Friend the Member for Hertsmere, who asked her what was meant by the phrase,

''following the making of the ruling''.

How soon is soon? What is ''following a ruling''? We simply have not heard. It is not the Minister's fault but, as the Government have already tabled hundreds of amendments to the Bill, she might have tabled another to make the clause read, ''immediately following the making of the ruling''. We would then have known. As it is, the Bill gives the prosecution an absolute right to appeal against a ruling if, following the ruling, it tells the court that it intends to appeal.

What if a barrister goes home on a Thursday—let us say that the court is not sitting on Friday, for one reason or another—and then says to the judge next Monday or Tuesday, ''I have been thinking about this matter, your honour, and I have decided to appeal''? The judge might say, ''Well, that was three days ago.'' ''Yes,'' says the barrister, ''but I am just working according to the statute, your honour.'' The judge is then shown the statute, and the barrister says, ''It simply says that I have to tell you that I intend to appeal following the making of the ruling. It doesn't say how soon after. That's why I've left it for three days and have thought about it.'' The Minister has not dealt with that point, and that is very unsatisfactory.

The Minister says that everyone has been working on the clause, and mentions that agreements have been reached and that the Law Commission has been making assessments. I dare say that many people have been working on the clause, but I suspect that they are all from the Home Office team, and I do not suppose that they have been to the Crown courts and discussed nuts and bolts with the listing clerk, the senior clerk and the deputy clerk.

James Clappison (Conservative, Hertsmere)

Does my hon. Friend agree that it follows from what we have heard that most of the cases will be non-expedited? In most, if not all, of those non-expedited cases, the jury presumably will be discharged, and all the time spent by a court hearing evidence after the judge has made his ruling but before the prosecution imparts its intention to make an appeal will be wasted. Meanwhile, costs will run up.

Humfrey Malins (Conservative, Woking)

Yes. My hon. Friend again hits on a point that the Minister will not find it easy to deal with. He rightly suggests, and the Minister accepts, that the majority of the cases—possibly four out of five—will be non-expedited.

Harriet Harman (Labour, Camberwell and Peckham)

I am sorry to cut the hon. Gentleman off in the middle of his answer to the intervention of the hon. Member for Hertsmere. The hon. Member for Woking suggests that the time limits that I have given, which are the basis of my assurance to the Committee, were dreamt up in a Home Office ivory tower. He suggests that everyone will know or think it plain common sense that the limits mean absolutely nothing and are not based on anything.

I reassure the hon. Member for Woking that it has been valuable for the Home Office to be involved in discussions about the timings, but there has also been detailed discussion between the prosecutors and the courts. The provisions have been thought through at a front-line level. The people on the ground think that the provision is workable. Perhaps I might ask the hon. Gentleman to acknowledge that, as this is an intervention.

Humfrey Malins (Conservative, Woking)

I accept what the Minister says, but it is a fanciful thought that Crown court staff across the country think that the provision will be at all workable. I am distressed that 80 per cent.—four fifths—of appeals are likely to be non-expedited, because as far as I can make out, we have no idea how long a non-expedited appeal will take. The amended chart implies that, in the case of an expedited hearing to the court of appeal, the whole matter will be dealt with in a week or even less. However, the chart does not deal with non-expedited matters at all. Might not non-expedited cases take much longer?

Harriet Harman (Labour, Camberwell and Peckham)

May I respond to the hon. Gentleman's point by saying that the interlocutory appeal was developed at the instigation of the senior judiciary and in consultation with them. This is not an ivory tower job. The hon. Gentleman may think that it will not work, but everyone else hopes and expects that it will.

Humfrey Malins (Conservative, Woking)

I sometimes think that the senior judiciary live in ivory towers; they seem not to know where Kingston Crown court is, never mind the dross that we have to try when we sit there. They might well have crafted a few thoughts, but nuts and bolts problems remain, and I think that the Minister has accepted that.

James Clappison (Conservative, Hertsmere)

Does my hon. Friend share my curiosity at whether, after all the deliberations and consultations with practitioners, ''following'' in 51(3)(a) means before any other evidence is heard, or whether it would allow an application to be made after further evidence has been heard? If that is the case, at what point after such evidence has been heard? That time may be wasted.

Humfrey Malins (Conservative, Woking)

My hon. Friend puts in different words a point that he made earlier; what does ''following'' mean? Does it mean immediately following? What can be heard and what time will be wasted? The Minister must recognise that these are real concerns.

The Minister must also accept that discharging a jury will be very expensive. The Minister seemed to be saying that in expedited cases the jury would be more likely to be discharged—[Interruption.] It is the other way around, is it? I am extremely glad to hear that because in non-expedited cases it would be ludicrous to anticipate the same jury remaining to hear cases. They will simply not be around for another three, four or six weeks.

James Clappison (Conservative, Hertsmere)

Months.

Humfrey Malins (Conservative, Woking)

Months, even.

David Heath (Liberal Democrat, Somerton and Frome)

My reading of clause 53(2) on expedited appeals is that the judge has discretion only to adjourn rather than discharge the jury. It poses the question of what happens if an expedited appeal is subsequently appealed to the House of Lords under the later provision. Will the judge still have the discretion to discharge the jury? If not, an empanelled jury could hang around for ever.

Humfrey Malins (Conservative, Woking)

That is another extremely good question to which we have not received an answer. We on this side of the Committee are trying to stimulate a debate and to tease out—to use a favourite phrase of my hon. Friend the Member for Hertsmere—from the Government just what they mean by these clauses. It is scandalous that we are not told this afternoon how long it is envisaged before a non-expedited hearing takes place. When my hon. Friend the Member for Hertsmere mutters ''months'', I fear that he is close to the mark. It is because the Government have been unable to give any satisfactory answers that we are testing the water, and I have my troops at the ready. If Committee members have been listening carefully to the arguments, I know how they will vote.

I admitted straight away that my amendment is badly drafted. However, I put it before the Committee to inject a little urgency into the debate, so I shall put amendment No. 987 to the vote.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 9.

Clause 52 - Appeals against certain other rulings

Clause 53 - Expedited and non-expedited appeals

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 989, in

clause 53, page 33, line 37, leave out 'may' and insert 'must'.

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss amendment No. 990, in

clause 53, page 33, line 39, leave out 'may' and insert 'must'.

Humfrey Malins (Conservative, Woking)

We are moving to the issue of expedited and non-expedited appeals. My amendments would replace the word ''may'' with ''must''. Let us briefly consider the context. The prosecution may, for example, some time later—possibly a long time later—have told the court that it intends to appeal against a ruling and the judge may be called on to decide whether the appeal should be expedited; we shall assume that he decides that it should. According to subsection (2), the next thing that the judge may do is order an adjournment. It seems to me that he would have to order an adjournment. I am trying to get to the simple language of the provision. If the judge may grant an adjournment, he does not have to; if he does not have to grant an adjournment, I do not understand what is going on. The court will not be seized of the matter because the case would then go to the Court of

Appeal, where the counsel would disappear to conduct it. It strikes me that the judge must—not may—order an adjournment; ditto if the judge decided that the appeal should not be expedited. He must order the adjournment or discharge the jury. If he will not do either thing, I am at a loss to know what he is actually doing. I hope that I have not misunderstood the position.

David Heath (Liberal Democrat, Somerton and Frome)

Would the provision enable account to be taken of multiple proceedings or multiple defendants where other proceedings, except those that are held up by the process of appeal, will continue with the same jury and court?

Humfrey Malins (Conservative, Woking)

The hon. Gentleman raises the point that I thought the provision referred to; a sort of multiple proceedings case. I still find myself reading the clause and trying to understand what it means in plain English. I am convinced that it means that if the judge decides that there should be an appeal and that it should be expedited, he may order an adjournment. What is to happen if the judge declines to order an adjournment, because he does not have to?

David Heath (Liberal Democrat, Somerton and Frome)

My assumption is that the measure would accommodate multiple counts where not all proceedings have to be adjourned on the basis of the specific appeal against a ruling. However, I agree with the hon. Gentleman that it is not clear from the clause that that is what the Government intend. It is equally clear to me, as it is to the hon. Gentleman, that in the circumstances in which that particular ruling is being appealed against, proceedings on that count must be adjourned or the jury discharged if that is the only count. Therefore, proceedings effectively fall to be terminated pro tem until the result of such an appeal is known. At the least, the Minister might consider the wording and bring back something more appropriate.

With your permission, Mr. Cran, and in order to avoid having to make any contribution on clause stand part, I wonder whether I might deal with a related issue that I mentioned earlier, which is hat directly associated with the power of the judge to order an adjournment.

James Cran (Conservative, Beverley and Holderness)

I am of the opinion that such propositions seldom work. I think that we should deal with that point when we come to it.

David Heath (Liberal Democrat, Somerton and Frome)

I am grateful, Mr. Cran. I am happy to deal with that point later.

Harriet Harman (Labour, Camberwell and Peckham)

Fundamentally, the hon. Member for Somerton and Frome is right that we need to give the judge flexibility and discretion, because a lot of different things could be going on.

Where the prosecutor indicates an intention to appeal, both amendments would replace the judge's discretion to order an adjournment with the obligation to do so. The first amendment applies to cases where the judge considers that the appeal should be expedited. The second applies to cases where the judge considers that the appeal should not be expedited. As I said, the procedures will be operated as I set out in the chart. The detail will be set out in

rules of court and, if necessary, in practice directions or other guidance issued by the Court of Appeal.

The idea is that following the prosecutor's oral indication of an intention to appeal, the judge will express an initial view in open court as to which of the two appeal procedures is appropriate; expedited or non-expedited. Normally there will be an overnight adjournment as provided for under clauses 51 and 52, and where that happens, the opportunity will also be taken by the court authorities to ask the Court of Appeal whether, in the light of the judge's views on the preferred appeal route, an expedited appeal is realistic in the circumstances. That point can be seen on the chart.

Humfrey Malins (Conservative, Woking)

To help the Committee, is there a list of examples of cases where the judge might think it more appropriate to have a non-expedited appeal? How long does the right hon. and learned Lady think that it would take to conclude a non-expedited appeal?

Harriet Harman (Labour, Camberwell and Peckham)

It might be that a non-expedited appeal arose on an appeal from a ruling made before a jury had been sworn in; it might be needed quickly, but the jury would not be standing by.

On the following day, there will be another hearing before the Crown court, when the prosecution will make it clear whether it wishes to appeal. The clerk of the court will also inform the judge of the results of the deliberations with the Court of Appeal authorities, and the judge will indicate in open court which appeal route should be followed.

Turning to the amendments, the judge's decision may be accompanied by a decision to adjourn, but that will not always be the case. For example, as the hon. Member for Somerton and Frome pointed out, when there is a trial of several co-defendants, the trial of some defendants will continue. They may not be affected by the appeal, or a defendant may be on trial for several offences and the appeal may affect only one. In those circumstances, the trial of any offences not caught by the appeal could continue.

I am not sure that I have an immediate answer to the question about how long an unexpedited appeal would take, but it would take place promptly. I am not sure whether there has been any practical discussion about that and I shall let the hon. Member for Woking know.

I take the point that an adjournment would be appropriate in relation to a ruling and an offence subject to appeal, particularly when the appeal is not to be expedited, but the amendments do not take account of the possible complexities that we discussed on previous amendments. Rather than trying to deal with all the possible situations that may arise, it is better to adopt our approach in the Bill and to give the judge discretion to grant an adjournment.

I invite the hon. Gentleman to withdraw the amendment. We do not need to try to envisage all the possible scenarios because we can leave that to the judge in the first instance. The judge will have a grip on the case and can decide what should be done.

Humfrey Malins (Conservative, Woking)

I do not feel that I have had a full answer, although the Solicitor-General helpfully did

her best to give me one. The amendments are probing and it has emerged from our discussion that quite a lot of information must be laid down clearly in rules to be drawn up subsequently and probably in practice directions from the Court of Appeal. If we cannot have the information in the Bill, it must be set out clearly elsewhere so that those affected will understand where it is and that they should abide by it. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

David Heath (Liberal Democrat, Somerton and Frome)

I shall now return to the subject that I incorrectly tried to introduce earlier. There is provision for a judge to order an adjournment or to discharge a jury. One of the factors to be taken into account is the time scale of any prospective appeal and whether it is sensible for a jury to wait, or more sensible to have a fresh trial if the decision is reversed and the case is subject to trial proceedings.

Clause 53(4) relates specifically to the trial judge or the Court of Appeal. If it has been decided that an appeal should be expedited and then that it should not be expedited, for reasons that I am not clear about—I can imagine circumstances in which that would be the case—the clause allows the judge or the Court of Appeal to restart the process in terms of deciding whether adjournment or discharge of the jury is more appropriate. I am not clear how that relates to clause 56, which refers to an appeal to the House of Lords. If an appeal has gone to the Court of Appeal and subsequently to the House of Lords, there seems to be no provision for the poor old trial judge and the even poorer body of men and women who comprise the jury to have any respite from their prolonged period of confinement, or to allow for the discharge of those who are subject to an adjournment. That seems to be an omission.

The circumstances would not arise often, but I do not see any discretion—if it is found necessary under clause 53(4) for explicit provision to be made—for the judge to revisit the decision on whether to discharge the jury in the case of an appeal that has not been expedited. There is no similar provision to cover the circumstances in which a decision of the Court of Appeal is appealed to the House of Lords. That would, inevitably, take place over a longer time and it would be sensible for the jury to be discharged. I do not see explicit provision for the original trial judge to make that decision. Can the Solicitor-General explain whether that decision is available to the trial judge or would the process be in a state of suspended animation until the conclusion of the consideration by the House of Lords?

Harriet Harman (Labour, Camberwell and Peckham)

Clause 53(4) is designed to meet that eventuality. One of the circumstances that might change might be that the story does not end in the Court of Appeal. The matter might go to the House of Lords. Therefore,

''If he decides that the appeal should be expedited, he or the Court of Appeal may subsequently reverse that decision and, if it is reversed, the judge may act as mentioned in subsection (3)(a) or (b)'',

So, it can start expedited. That means that the judge has three options. He can decide to adjourn the case, to continue with it, or to discharge the jury even on an expedited case. If the case goes to the Court of Appeal and—where the original decision was to adjourn—it is not realistic to go back because it is then to go to the House of Lords, subsection (4) allows a reversal. It might be that the Court of Appeal rules against the prosecution. The prosecution might then indicate that it intends to appeal, at which point the Court of Appeal can rule that it will not then be expedited. That is how it will operate.

The hon. Member for Somerton and Frome is looking puzzled. However, this matter is straightforward. The judge at first instance decides whether it is expedited or non-expedited. However, we do not want that decision to be frozen because it might become inappropriate if circumstances change, or the argument turns out to be more complicated. Therefore, subsection (4) allows for its reversal.

David Heath (Liberal Democrat, Somerton and Frome)

The Solicitor-General has correctly divined that I am puzzled. I have not followed her argument, because she seems to be stretching the definition of an expedited appeal in the Court of Appeal to encompass proceedings in the House of Lords subsequent to that appeal's having been determined—unless we are discussing an expedited appeal process that includes the House of Lords. The wording of the Bill makes no provision for that decision to be taken by the House of Lords, only for the Court of Appeal to act under clause 53(4). I hope that I am not being pedantic in saying that the construction put by the right hon. Lady on that subsection cannot really be held to deal with the specific circumstances that I have described. It deals with a set of circumstances, but not those in which, at the end of the expedited appeal, it is appealed to the House of Lords, where it is not a matter of being expedited or unexpedited, it is simply an appeal to the House of Lords on a point of law. There needs to be provision for the trial judge, in the first instance, to be able to discharge the jury under such circumstances. If the Committee is satisfied that that is encompassed by clause 53(4), I am prepared to accept it, but it does not seem to me to be the case.

Question put and agreed to.

Clause 53 ordered to stand part of the Bill.

Clause 54 - Continuation of proceedings for

Clause 55 - Determination of appeal by Court of Appeal

Harriet Harman (Labour, Camberwell and Peckham)

I beg to move amendment No. 950, in

clause 55, page 34, line 19, leave out

'the termination of the hearing of'.

This is a simple drafting amendment. It has been suggested that the word ''termination'' could imply that the Court of Appeal might make its decision at some other point in appeal proceedings than their end. In short, the phrase is otiose. The removal of the word removes that possible suggestion.

Amendment agreed to.

Harriet Harman (Labour, Camberwell and Peckham)

I beg to move amendment No. 951, in

clause 55, page 34, line 21, leave out subsections (2) and (3) and insert—

'(2) Where the Court of Appeal confirms a ruling, it must, in respect of the offence or each offence which is the subject of the appeal, order that the defendant in relation to the offence be acquitted of the offence.

(3) Where the Court of Appeal reverses or varies a ruling, it must, in respect of the offence or each offence which is the subject of the appeal, do any of the following—

(a) order that proceedings for the offence may be resumed in the Crown Court,

(b) order that fresh proceedings may be instituted in the Crown Court for the offence,

(c) order that the defendant in relation to the offence be acquitted of the offence.'.

The amendment deals with a situation after the Court of Appeal has disposed of a prosecutor's appeal. Unfortunately, clause 55, although not defective, could lead to unnecessary confusion in some cases. The clause enables the Court of Appeal to confirm, reverse or vary the ruling appealed against. In all cases, it then has the discretion to acquit the defendant. If the court varies or reverses the ruling, the Court of Appeal has the discretion to order the resumption of the proceedings if the trial has been adjourned pending the outcome of the appeal, or fresh proceedings, if the jury—where there is one—has been discharged. I would stress that the Court of Appeal may only make such an order if it considers that it is necessary in the interests of justice to do so.

The problem is that the court is not actually required to make any order under subsections (2) or (3). Its powers to order an acquittal, resumption or fresh proceedings are precisely that: powers rather than obligations. In theory, therefore, the court could confirm, reverse or vary the ruling appealed against, then make no order as to what should happen to the defendant or the trial.

Although it is highly unlikely that the Court of Appeal would fail to act under subsections (2) or (3), we consider that it would be preferable to make it clear that if the court confirms the judge's ruling and so the prosecutor's appeal fails, the defendant must be acquitted. If the Court of Appeal reverses or varies a ruling, it must either acquit the defendant or, if it is

necessary in the interests of justice to do so, order the trial to resume or fresh proceedings to begin.

David Heath (Liberal Democrat, Somerton and Frome)

I am glad that the amendment deals with the issue I raised earlier about acquittal in the case of a ruling being confirmed.

I have a problem with the situation in which a ruling has been reversed or varied. The Court of Appeal, having heard the case of a ruling that was fatal to the case of the prosecution, may uphold that appeal and reverse the decision of the trial judge. In such circumstances, it seems odd that the Court of Appeal would then acquit the defendant when one would have expected that that might be the job of a jury—having heard the full prosecution and defence case—to make that acquittal, given that the prosecution case could then continue without the difficulties introduced by the original ruling.

The Court of Appeal will have heard only the evidence in respect of the particular ruling made by the trial judge and its effect on the case. It will not have heard any other evidence that might have been adduced by the prosecution prior to that ruling. It would seem perverse for the Court of Appeal to have the power to dismiss a case having upheld the appeal without having heard all the prosecution evidence. Why on earth should it have the power of acquittal under those circumstances? There may be an argument that I have not followed, but I would have expected the power of acquittal to be there if the appeal were dismissed. That is the basis of the procedure that the right hon. Lady is introducing.

I could conceive of a minor variation where the prosecution accepted the fact that although the ruling had been varied it was still fatal to the case, but there is no provision for the prosecution to have any say in whether that happens. Under the provision, it is simply for the Court of Appeal, having decided to reverse or vary a ruling, to determine the acquittal of a defendant. That seems peculiar in terms of both justice and procedure, so I have to ask why the provision is in the Bill.

Harriet Harman (Labour, Camberwell and Peckham)

As the hon. Gentleman has anticipated, the order of the Court of Appeal will follow the logic of its ruling. There will be some cases in which one would not want to require the Court of Appeal to follow that order because such cases would have to go back to the judge to make the ruling at first instance. For example, if it transpired that the defendant had suddenly become terminally ill, everybody might agree that the case should stop and that an acquittal should be ordered. The question is whether one sends the case back to the judge at first instance or whether one does it there and then in the Court of Appeal. The provision takes account of the fact that there may be circumstances that, regardless of the overturning of or variation in the ruling, point to the defendant's acquittal. For example, the health of the defendant might not have been known when the case was first heard.

David Heath (Liberal Democrat, Somerton and Frome)

Under what circumstances would the Court of Appeal hear evidence on the health of the defendant? What part would that play in the legal arguments on the admissibility or otherwise of

evidence under the ruling of the judge in the first instance?

Harriet Harman (Labour, Camberwell and Peckham)

I think that the prosecution could accept that the defence had indicated the situation to them. If the defence produced a medical report, the prosecution might accept it and the defence could say to the Court of Appeal, ''You have made your ruling, but we ask you not to order a fresh trial.'' The Court of Appeal would look over at the prosecutor and ask, ''Do you object to that?'' The defence would have made it clear that the request was on the grounds of the defendant's terminal illness, which had just been discovered. The prosecution would get up and say, ''We would not object to the case closing at the first instance.'' The Court of Appeal would be able to close the case there and then. I do not envisage that such cases will be frequent, but what is the point of sending a case back down to the first instance court if the prosecution do not want to carry on with the case at the last minute because something has cropped up?

Amendment agreed to.

Amendment made: No. 952, in page 34, line 31, at end insert

'in respect of an offence'.—[Ms Harman.]

Clause 55, as amended, ordered to stand part of the Bill.

Clauses 56 and 57 ordered to stand part of the Bill.

Clause 58 - Effect on time limits in relation

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I should like to ask the Solicitor-General one question, although it is not a specific consequence of the suggested wording to amend the Prosecution of Offences Act 1985.

I shall use an example without prejudice to the issues, although I am conscious that this case has not yet been tried. There is concern, which has been expressed from many quarters over a considerable time, that delay can occur in the preliminary stages of criminal proceedings at the instigation of solicitors, defendants or those advising on the medical condition of defendants. Such delay prevents the normal time limits from running within which certain steps must be taken—the time limit for the bringing of charges and the time limit on holding someone at a police station. It is publicly known that that was the case in relation to the arrests that followed the deaths of the two young girls in Cambridgeshire last year. I am not saying anything that was not in the public domain. As a result of applications by the defence for regular adjournments and applications to do with mental health and so on, the dates on which the defendants were taken back to the magistrates court were put back for a considerable time. It is a common issue; that was not a unique experience.

The normal provision that a person can be held for no longer than a certain time protects people's civil liberties and prevents them from being held indefinitely, but that is abused—I use the word widely—if the two issues are not interrelated. For example, there should always be a requirement for someone to be interviewed. If one is imposing a requirement on the prosecution to interview a person by a certain time in order to decide whether a charge should proceed, the defence should properly be expected to attend an interview in the same time. At least there should be a limit: the defence should not be able to continue to delay the proceeding.

Someone who is arrested may say that they want to see not just a solicitor but a doctor, or the solicitor may say, ''I want the person to see a doctor, because I am not sure that they would be fit, whether physically or mentally, to plead or to answer questions''. My understanding—I do not pretend to be an expert on this procedural set of issues—is that again there can be considerable delays, which conflict with the idea that there is a time limit and that everyone will proceed quickly.

I have not given the Solicitor-General notice; I am not trying to trap her into a quick answer. She may not have thought about the issue or discussed it with her colleague, the Attorney-General, or with the Director of Public Prosecutions, but there is concern that there can be an indefinite delay to the current time requirements because people use arguments to do with inability to attend or to get translators or medical evidence. I ask the Solicitor-General to write to me and colleagues before Report, saying whether the Government are alert to those concerns, have received other representations and are minded to make a proposal to deal with the issue. In principle, proposals to deal with it would be welcome. I should be happy to be consulted, as I am sure Conservative Members would be, if the Government thought fit.

Harriet Harman (Labour, Camberwell and Peckham)

The clause looks a bit obscure at first sight, but its purpose is straightforward. It relates to the situation where the prosecutor appeals before the beginning of the trial.

Section 22 of the Prosecution of Offences Act 1985 allows the Secretary of State to set time limits, both general and, more specifically, relating to the custody of the defendant, which apply to the preliminary stages of criminal proceedings. The time limits do not apply to the trial itself. If the prosecution were to appeal against a terminating ruling made before the start of the trial, the time limits prescribed under section 22 of the 1985 Act would continue to apply. The time allowed for the preliminary stages, or for the defendant's custody, would expire, thus bringing them to an end or requiring the defendant to be released before the appeal had been concluded. The clause remedies that potential problem by suspending the time limits pending the outcome of the appeal.

I shall consider the hon. Gentleman's additional points about issues of delay. I give an undertaking to write to him, and we shall consult him if we consider making new proposals on Report or later.

Question put and agreed to.

Clause 58 ordered to stand part of the Bill.

Clause 59 - Restrictions on reporting

Harriet Harman (Labour, Camberwell and Peckham)

I beg to move amendment No. 953, in

clause 59, page 35, line 33, at end insert 'or'.

This is a simple drafting amendment. As it stands, the clause could be interpreted to mean that the judge can only make an exemption that covers both paragraphs (a) and (b) of subsection (2) simultaneously. The amendment makes it clear that the judge can make an exemption for the matters described in subsection (2)(a) or (b), or both.

Amendment agreed to.

Question proposed, That the clause, as amended, stand part of the Bill.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I have a minor point to make that is relevant to the clause, but also relates to other matters that we have debated elsewhere in the Bill and to which we shall doubtless return. There is real concern about the way in which arrests, charges and criminal trials are reported and we have discussed that in Committee. The matter relates to periods before proceedings in the courts and to those proceedings. I know that the Solicitor-General and her colleagues are alert to that and there has been a frank and perfectly reasonable discussion with Lord Falconer and the Under-Secretary of State for the Home Department, the hon. Member for Leeds, Central (Hilary Benn).

I want to make a constructive suggestion. In Committee, the matter has come into focus in the context of the double jeopardy debate, but it is also hugely relevant elsewhere. To put it bluntly, people increasingly feel that there is trial by media rather than trial by the courts. My suggestion is that, if the Government were minded to help us, we might have an opportunity for a discussion between the parties represented on the Committee—obviously, I include the hon. Member for North Down (Lady Hermon) in that—of the ways in which Government thinking has developed since the White Paper, so that better management of reporting might be achieved. Perhaps we could do that outside the Committee and before Report.

I do not have a final or theological view that there needs to be further legislation. As a Liberal, I instinctively react against laws restricting the freedom of the press. However, there has been abuse that prejudices fair trials. Such abuse could prejudice them in various directions and could relate as much to this type of proceeding as any other. Perhaps we might reflect on the reporting of proceedings and the restrictions on that in general and in the round, rather than compartmentally. I want to flag up the point that that would be a helpful discussion. I am sure that the issue will not go away during the passage of the Bill through this place and the House of Lords. The sooner we see whether there can be consensus and we can move the management of the issue on in the advancement of justice, the better.

Harriet Harman (Labour, Camberwell and Peckham)

The hon. Gentleman raises what, as he acknowledges, has been a recurrent theme in Committee. As he rightly says, the issue relates to what happens before proceedings, as well as during them, which is what we are addressing. I think that we all agree that nothing must be done that interferes with the administration of justice, but we also all agree that we want to defend the freedom of the press. The difficulty lies in balancing those two things. I know that any Department bringing forward proposals for change in law or practice would carry out a wide consultation and consult the Liberal Democrats and the official Opposition. The issue is difficult, but it is certainly not party political.

At this stage, I cannot say anything beyond that in relation to the hon. Gentleman's points. As he has identified, the clause deals with the issue of reporting restrictions. It sets out very simply what can and cannot be reported. Obviously, alarm bells go off whenever any possible limitation on the press's right of freedom of expression is mentioned. Perhaps I can explain why the restrictions in the Bill are necessary. We had a long discussion about double jeopardy. The principles are the same, but the considerations in practice are slightly different.

The purpose of the restrictions is to prevent juries from learning of matters that may bias them for or against a defendant. In short, the restrictions are necessary to uphold the integrity of the trial process. Of course, as we have discussed, it might well be the case that that jury is actually waiting for the case to come back. There are particular reasons why reporting restrictions are required in the context of the prosecutor's right of appeal.

It is important that a jury, or a future jury, do not learn about the substance of a ruling or the appeal against it. The reasons for that are obvious. If the judge rules, for example, that the trial should be brought to an end as an abuse of process, it would be prejudicial to the prosecution case for the jury to learn of the reasons for that ruling. Conversely, if the prosecution wins its appeal, it would be prejudicial to the defendant for the jury to learn why the terminating ruling has been thrown out by the Court of Appeal.

The reporting restrictions are particularly necessary in that they cover an interlocutory appeal, made under circumstances where a resumption of the trial may be ordered before those very jurors. It is not just a matter of potential future jurors, but those still empanelled. We want the trial to remain fresh in the jury's mind, but we do not want them to be prejudiced by reading reports in the newspapers about what has happened in the Court of Appeal.

The detailed approach taken in the clause is based closely on the precedent of the reporting restrictions applied to preparatory hearings under the Criminal Justice Act 1987 and the Criminal Procedure and Investigations Act 1996. We are unaware of any suggestion that those restrictions have worked other than very well in practice.

To sketch in the main features of the scheme, the restrictions are not complete. They do not prevent the reporting of the basic facts of the case, including

details of the court, judge, defendant and lawyers involved, and the offences at issue, and they are automatically lifted at the conclusion of the trial.

The clause allows the judge, the Court of Appeal or the House of Lords to lift the restrictions, either in part or completely. In addition, subsection (6) allows the defendant to make representations against such an order. In such circumstances the Court would then have to consider whether lifting the restrictions was in the interests of justice.

The clause also deals with potential conflicts of interest relating to reporting restrictions in cases where there are a number of defendants. Subsection (8) deals with the issues that may be reported, and sets them out in detail. The attempt is to be as open as possible, to allow as much to go on the record as possible, not to throw a cloak over the process to the point of being mysterious and to protect the situation until the end of the trial as far as the current—or any future—jury are concerned.

Question put and agreed to.

Clause 59, as amended, ordered to stand part of the Bill.

Clause 60 - Offences in connection with reporting

Harriet Harman (Labour, Camberwell and Peckham)

I beg to move amendment No. 954, in

clause 60, page 37, line 44, after 'of', insert—

'(i) before the relevant date,'.

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss Government amendment No. 955.

Harriet Harman (Labour, Camberwell and Peckham)

The amendments are straightforward and wholly consequential upon part 2 of the Justice (Northern Ireland) Act 2002. Section 22(1) provides that the Attorney-General for England and Wales shall no longer be the Attorney-General for Northern Ireland. Clause 60(10)(b) of the Bill provides that prosecutions for breaches of reporting restrictions can only be brought in Northern Ireland with the consent of the Attorney-General for Northern Ireland. Therefore, the subsection is no longer apt.

We have decided that any prosecutions under this clause should be brought in Northern Ireland instead, with the consent of the Director of Public Prosecutions for Northern Ireland. That will provide sufficient safeguard on the use of the powers.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I hope that it is not arrogant or improper of me, but I know that the hon. Member for North Down, were she here, would greatly welcome the amendments. If I may, I should like to do so on her behalf. Having heard her hold forth on the subject, I will report back to her so that she can reprimand me if I am acting improperly. The provisions seem constitutionally proper, and it is important to get the matter right. There has been concern in Northern Ireland about the lack of integrity and separation of the system, given that the decision was taken some

time ago to have a separate prosecutorial process to maintain the independence of the criminal justice system in Northern Ireland.

Harriet Harman (Labour, Camberwell and Peckham)

I am sure that the hon. Member for North Down will be glad to hear that the hon. Gentleman has championed her cause in her absence.

Amendment agreed to.

Amendment made: No. 955, in

clause 60, page 37, line 45, at end insert

'or

(ii) on or after the relevant date, the Director of Public Prosecutions for Northern Ireland.

(11) In subsection (10) ''the relevant date'' means the date on which section 22(1) of the Justice (Northern Ireland) Act 2002 (c.26) comes into force.'.—[Ms Harman.]

Question proposed, That the clause, as amended, stand part of the Bill.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

This is my fourth and last contribution of the day, and it goes back to my debate with the Solicitor-General on the previous clause. It is welcome that proceedings for an offence under the clause require the consent of the Attorney-General in England and Wales or of the equivalent officer for Northern Ireland, and that is clearly proper. However, the clause raises a number of substantive issues.

First, the penalty envisaged in subsection (9) is a fine on summary conviction, which will not exceed level 5. Given that we are talking about a corporate offence, that seems unduly lenient. I take a hard view of those who interfere with the criminal justice system, and we must reserve significant penalties for them, including imprisonment.

That raises another issue, on which the hon. Member for Beaconsfield (Mr. Grieve) touched when he made a parallel with health and safety legislation. Indeed, other colleagues also made similar points a couple of weeks ago. The provisions are quite properly intended to ensure that individuals are held liable, and there can be no escape from liability simply because everyone in an organisation says ''It's nothing do with us, guv.'' If that happens, responsibility can be passed up and down the management tree and across the boardroom, only to go out of the window at the end of the day.

The provisions are welcome, and I ask the Solicitor-General simply to note and reflect on the punishment point and to seek a more agreeable consensus. However, will she ask her Home Office colleagues—it is they who will be leading on this issue, although there will be other departmental interest—what has happened to similar proposals on corporate manslaughter? The Government are committed to them in principle, and they would provide for us to hold firms responsible for the most serious crimes in a way that is realistic and makes people take notice. You will recall, Mr. Cran, that that was the major issue after the ''Herald of Free Enterprise'' incident, and it arose again after the ''Marchioness'' incident, which occurred much closer to the Solicitor-General's home and mine.

I have three questions in that regard. First, will the Government look again at the appropriateness of the maximum fine? It is too low, and imprisonment should be permitted. Secondly, will they look at the issue in the context of punishment across the board for those who interfere with the course of justice to ensure that penalties are tough enough for breaches? Thirdly, will the perfectly proper way of holding corporate Britain to account under the system before us be reflected in an early announcement and early progress on corporate manslaughter? That could be adequately reflected in the Bill if the Government were minded to introduce such an offence, although I appreciate that consultation would be needed and it may not possible to introduce it before Report, because that would raise concerns about there not having been proper debate.

Harriet Harman (Labour, Camberwell and Peckham)

It is interesting that the hon. Gentleman mentions corporate manslaughter, and I readily acknowledge that there are difficulties in prosecuting it. Indeed, the first example that I sent him of terminal rulings that had finished a case but were not currently appealable was that of a corporate manslaughter case. Rulings in corporate manslaughter cases, as with all other rulings, will be able to be appealed against under the Bill.

The hon. Gentleman also asked whether we are planning any changes with regard to corporate manslaughter. As he knows, my fellow Ministers have made statements about the issue being under continuous review. However, I take the point, as will my colleagues, that he is pressing for progress.

I think that my colleagues will also reflect on the point about the £5,000 punishment. That, again, has been a recurring theme, and as we draw to the twilight of the Bill, I can say that there has been consistency with all the other times that the Committee has voted on penalties at this level, on many of which concerns have been expressed. We want consistency, but the points made stand.

Clause 60 imposes sanctions for breaching the reporting restrictions set out in clause 59. Obviously, there cannot be restrictions without a sanction for breaking them. The clause defines in detail in subsections (2) to (4) who is guilty of an offence if clause 59 is breached.

Subsections (5) to (7) deal with situations when the breach has been committed by a body corporate. That

is required because any media containing a breach of the restrictions are likely to be operated by companies.

Subsection (8) applies the same general principles as subsection (5) to partnerships under Scottish law. The restrictions and the offences are United Kingdomwide so there is no question, for example, of a breach of English reporting restrictions being lawful in Northern Ireland.

I draw particular attention, as did the hon. Gentleman, to subsection (10) as amended. Proceedings in England and Wales under this clause may not be instituted without the permission of the Attorney-General. Proceedings in Northern Ireland may not be instituted without the permission of the Director of Public Prosecutions for Northern Ireland.

A person who is guilty of the offence is liable on summary conviction to a maximum of a level 5 fine which is, as the hon. Gentleman said, currently £5,000.

Question put and agreed to.

Clause 60, as amended, ordered to stand part of the Bill.

Clause 61 - Interpretation of Part 9