Criminal Justice Bill

House of Commons, 18 November 2003.

Clause 41 — Application by Defendant for Trial to be conducted without Jury

David Blunkett (Labour, Sheffield, Brightside)

I beg to move, That this House disagrees with the Lords in the said amendment.

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

With this it will be convenient to take the following: Lords amendment No. 33 and the Government motion to disagree thereto, Government amendments (a) to (f) to words restored; Lords amendment No. 34 and the Government motion to disagree thereto, amendment (c) to words restored, Government amendments (a) and (b) to words restored; Lords amendment No. 35 and the Government motion to disagree thereto; Lords amendment No. 36 and the Government motion to disagree thereto, Government amendment (a) to words restored, amendment (c) to words restored and Government amendment (b) to words restored; Lords amendment No. 37 and the Government motion to disagree thereto, Government amendment (a) to words restored; Lords amendment No. 38 and the Government motion to disagree thereto, Government amendment (a) to words restored; Lords amendment No. 39 and the Government motion to disagree thereto; Lords amendment No. 40 and the Government motion to disagree thereto, Government amendments (a) and (b) to words restored

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

On a point of order, Mr. Deputy Speaker. For the sake of clarification, may I confirm that you intend us to debate Lords amendment No. 32, not Government amendment No. 32? As the former entirely contradicts the Government's view, we should clarify the point. I hope that that is helpful.

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

I believe that the House understands what we are doing.

David Blunkett (Labour, Sheffield, Brightside)

Thank you for that clarification. I seek to reinstate part 7, with minor alterations that I shall mention later. On Second Reading, I said that we would respond to sensible debate and suggestions and that we would be prepared to listen to reasoned argument. It was therefore a surprise to discover that we faced neither sensible debate nor reasoned argument on part 7 of the Bill. The House of Lords chose simply to delete it, not to attempt to reflect on it, revise it or respond to my request.

I wish, therefore, to make one or two matters clear at the beginning of this debate. First, the time for posturing is over. Our amendments respond to the debates in Committee and in the House of Lords. They respond to the sensible observations that were made despite the Lords' pyrrhic victory in deleting part 7 completely. The amendments therefore respond to the will of Back Benchers in this House and to the reflections of the more sensible people in the upper House. I should make it clear, therefore, that we will make no further amendments to part 7. When the Bill goes back to the Lords, their lordships should consider whether they would like to see the Bill fall on the issues considered in part 7. I say that because it is time to make it clear that we are talking about some of the most organised and desperate criminals that this country has to deal with. We are not talking about people who have committed a minor crime or who have been accused of shoplifting. We are talking about organised criminality on a grand scale.

We challenge the Opposition parties on whether they mean what they say. For example, in a Sunday paper this week, Lord Strathclyde anticipated the introduction of measures to tackle criminality in the Queen's Speech. It is blinding cheek—if I may use that term—for the Leader of the Opposition in the House of Lords to talk about the need for further legislation to tackle crime and criminals, when we are trying to tackle the most organised criminals in our community with this Bill.

Dominic Grieve (Conservative, Beaconsfield)

The Home Secretary mentions organised and desperate criminals. I hope that as he develops his arguments he will explain how clause 41, which he seeks to reinstate and which would give a defendant the option to elect for trial without jury, has any relevance to the comments he has just made.

David Blunkett (Labour, Sheffield, Brightside)

I am happy to address clause 41. As the hon. Gentleman knows, I was addressing the issue of trial by jury, in relation to those who have intimidated or sought to abuse juries, and in serious fraud cases. We sought to offer a choice in clause 41. All those political parties and individual Members of Parliament who enjoin the Government to provide choice should be in favour of choice on this occasion, given that we have faith in judges and in juries. Indeed, various elements in the House have declared their undying commitment to both juries and judges. As we trust them both, providing choice is a sensible proposition.

Edward Garnier (Conservative, Harborough)

I am amused by the Home Secretary's remark that he has faith in judges. One of the most prominent characteristics of his time as Home Secretary has been his total lack of faith in the judiciary and his desire to make that clear. That aside, will he tell me—so that I may put this group of amendments into context—how many times a jury has been nobbled and a trial aborted as a result since the Government came to power in 1997?

David Blunkett (Labour, Sheffield, Brightside)

I will happily obtain that detail for the hon. and learned Gentleman during the course of the afternoon. However, we are not weighing numbers. As a barrister would know, the scales of justice are not about how many trials—and there have been enough—but about truth and justice. It has been erroneously suggested that we are reintroducing the Criminal Justice (Mode of Trial) Bill, which fell in the previous Parliament. I read in The Independent this morning the voices of vested interests parading their support for the House of Lords in eliminating part 7 of the Bill. I do not know which side those members of the legal profession think that they are on, but this House is on the side of the innocent—those who are innocent of unwarranted charges, and the innocent in our communities, who see the perpetrators of crime go free because they dislocate, interfere with and disrupt the legal and judicial systems.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Does the Home Secretary realise that in relation to two of the three proposals he makes to restrict jury trial—that which would allow a defendant to choose to go before a judge alone and that which would allow complex or lengthy cases to be heard by a judge alone—the argument against is not only that we might end up with a two-tier justice system, but that trial by jury is not the cause of the public's current lack of confidence in the criminal justice system? Trial by jury is what gives many people confidence in the system, because 12 ordinary people decide guilt or innocence, not one extraordinary judge. Losing trial by jury risks losing the confidence of a great number of ordinary citizens in the present jury system.

David Blunkett (Labour, Sheffield, Brightside)

We already have instances where, for all sorts of good reasons, a citizen is able to choose whether to appear before a magistrates court or before a jury. Allowing people a choice seems perfectly reasonable, as they are the ones being tried. It is in their interests that we are having this argument about what is the best method of ensuring that we convict the guilty and not the innocent.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Are we not in the business of trying to say where the presumption should lie? For the sort of reasons expressed by the hon. Member for Southwark, North and Bermondsey (Simon Hughes), should not the presumption be that a jury trial is the norm? Yet clause 41 makes it clear that, if a single defendant applies, the trial will be held by a judge, save in exceptional circumstances. In other words, the presumption is not in favour of jury trial.

David Blunkett (Labour, Sheffield, Brightside)

It is a trifle strange, then, that appeals—when the most detailed points of law are addressed—should be heard by judges, not juries. Those judges are presumed to be wise and capable enough to hear appeals. This is not a matter of interfering with our judicial system, but of providing checks and balances.

Robert Marshall-Andrews (Labour, Medway)

Will my right hon. Friend give way?

Edward Garnier (Conservative, Harborough)

Will the Home Secretary give way?

David Blunkett (Labour, Sheffield, Brightside)

I will, but I am just checking whether someone behind me wants to get in. I always like to have my opponents in front of me, not behind me.

Edward Garnier (Conservative, Harborough)

We are all in front of the Home Secretary.

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

Mr. Robert Marshall-Andrews.

Robert Marshall-Andrews (Labour, Medway)

Will not the amendments proposed by the Government mean that all serious and complex cases may be tried without a jury, and not just long and complex fraud cases?

David Blunkett (Labour, Sheffield, Brightside)

No, the proposals before the House are specifically intended to deal with long and complex fraud cases.

Robert Marshall-Andrews (Labour, Medway)

Where is that made clear?

David Blunkett (Labour, Sheffield, Brightside)

I refer my hon. and learned Friend to the text of the amendments under consideration. His point follows on from the point made by the hon. Member for Southwark, North and Bermondsey (Simon Hughes). In the light of previous debates, the Government are altering the Bill to exclude cases—apart from those that involve serious fraud—that are long and complex. We have responded to the view that it is difficult to judge what sort of cases, apart from fraud cases, would warrant such designation and treatment.

Dominic Grieve (Conservative, Beaconsfield)

I am listening to the Home Secretary carefully. I hope that he will help the House in respect of that particular proposal. He will appreciate that I have not had much time to consider the matter, but my impression is that one consequence of the Government amendments would be that judicial discretion as to what constitutes a long and complex fraud case would be removed. It is envisaged that the prosecutor will serve a notice, but as far as I can see, that notice will not be open to challenge, and there will be no opportunity for a judge to exercise discretion in respect of it. It would be useful for the Home Secretary to deal with that important matter.

David Blunkett (Labour, Sheffield, Brightside)

It is an important point, but the debate on this clause is confined to long and complex fraud cases, for the reasons that I have enunciated. As has been spelled out before, the matter is open to challenge. The Serious Fraud Office would investigate such cases, and the presumption put forward by the Crown Prosecution Service would be open to challenge. No one has indicated anything to the contrary, but the proposals are designed to ensure that we can get to the truth.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

This is very important territory, and I concede that the Home Secretary has moved to limit the proposal to fraud cases. However, there are two strong arguments against his case. First, there is a much higher conviction rate in most long and complex fraud cases than elsewhere in the jury trial system, and the SFO has testified to that. Secondly, almost everyone who has participated in such trials understands that there is normally only one fundamental and simple issue—is the person honest or dishonest? That question can be understood by a cross-section of the population in a jury of 12 as well as it can be understood by a judge who, by definition, is a jury of one.

David Blunkett (Labour, Sheffield, Brightside)

We have been through all this on previous occasions. We are talking about the existing Highams cumulative test. The amendment restricting the proposals to serious fraud trials was designed to ensure that juries in those cases did not have to deal with a range of issues. We want to ensure that people found guilty on a simple test case cannot walk away, and that jury members in trials that last a long time do not end up being discharged because they cannot serve for that length of time.

On Second Reading, I gave the example of the Maxwell trial, in which 750 people were discharged before it was possible to elect a jury. People need to hold down jobs and have a life, and cannot be tied up for a year, or even longer in some cases. It is very difficult to get a jury of 12 good men and women of true origins and citizenship who reflect the community. We have been through all that before, and people either agree or disagree that we must get to grips with cases that otherwise are likely to end in acquittal. Such cases include the Levitt case and the Blue Arrow case when the courts themselves expressed concern about the threat to justice posed by the way that they were conducted.

Dominic Grieve (Conservative, Beaconsfield)

Only a week or a fortnight ago, the Government indicated to Opposition parties that they were minded to introduce the Law Commission's proposals on multiple offending on Third Reading in the Lords. That would enable specimen counts to continue to be brought, but it very often happens in fraud cases that multiple identical matters need to be taken into consideration. In such cases, the Law Commission proposals mean that it would be possible for a judge alone to determine those matters at a Newton hearing following conviction on the specimen counts. We made it clear that we supported the Law Commission's initiative, but the Government chose not to introduce those proposals on Third Reading. Should not those proposals be closely linked to any reconsideration of whether juries should try fraud cases? Is not the uncoupling that the Government have performed regrettable?

David Blunkett (Labour, Sheffield, Brightside)

Let us be clear about this: we are in favour of those proposals. From what the hon. Gentleman has said, I take it that the Conservative party also agrees with them. However, there is no timetabling of debate in the Lords—and the recent Division in this House shows that the Opposition would vote against the establishment of any such system in the other place. Extending Report stage to a fifth day would have extended the debate and disrupted consideration of other clauses. We would then have had to take the Bill even closer to the wire when it comes to the Queen's Speech. We do not want any posturing this afternoon about whether the Opposition would have negotiated a timetable for acceptance on Third Reading of the Law Commission proposals. I repeat that the Government are in favour of them, and we will introduce them at the earliest opportunity, but we cannot have games in respect of this matter. There is no procedure in the House of Lords for any sort of timetable or closure mechanism, nor any provision for the operation of the Speaker and Deputy Speaker system that is normal in the House of Commons. Until we have such a system in the Lords, we cannot take anyone's word that that House will be in favour of anything that we propose.

Gwyneth Dunwoody (Labour, Crewe and Nantwich)

I am not a lawyer, and I listen in some bemusement when those of my colleagues who are lawyers discuss the finer points of law. My involvement in this matter is very basic, therefore. I believe that any loss of trial by jury, regardless of what is said in the House, will lead almost inevitably to the removal of rights that have been enshrined in this country for many hundreds of years. I am sorry to say that it is not clear to me what my right hon. Friend is saying. Is it that we have to go ahead with this very basic change because the House of Lords does not proceed in a way that he finds acceptable? If so, that is extremely worrying.

David Blunkett (Labour, Sheffield, Brightside)

I shall try to clarify matters for my hon. Friend. In response to the intervention from the hon. Member for Beaconsfield (Mr. Grieve), we are talking not about the amendments that I am moving this afternoon but about multiple cases where, at present, we have to take a specimen case when dealing with complex and serious fraud. The official Opposition pointed out that they were prepared to support the Law Commission's recommendations, which we support, that would allow those multiple provisions to be dealt with on the back of a specimen case. We are not dealing with that matter this afternoon and it is not material to the amendments under discussion, but it was material to the point that I was making to the hon. Member for Southwark, North and Bermondsey. I would hate there to be any misunderstandings about that.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Will the Home Secretary confirm that all the legislation that has come from his Department this parliamentary year has received a huge amount of co-operation from the House of Lords? The Government have accepted that owing to the lack of timetabling in the Lords, the upper House has been able to consider matters that the Commons has not been able to consider and has made great improvements, for example to the rape provisions in the Sexual Offences Bill. The Government have fixed the deadline—the backstop of the date of the Queen's Speech—and they are setting the limits to our debate. If the Lords do not agree tomorrow to what the Government propose on jury trial today, it will be the Government's insistence on such matters that will derail the Bill and not the insistence of the Opposition.

David Blunkett (Labour, Sheffield, Brightside)

I do not accept that at all. I paid tribute on Third Reading of the Sexual Offences Bill to the work that had been done in both Houses, to which the House of Lords contributed. The same is true of the Extradition Bill, the Crime (International Co-operation) Bill and, to a lesser extent, the Anti-social Behaviour Bill; it is not true of the Criminal Justice Bill. We are debating the reinstatement of part 7. How can the hon. Gentleman suggest that the Lords did a superb job of scrutiny and revision when they simply knocked that part out altogether? It does not bear thinking about.

Furthermore, on the serious risk of jury tampering—I want to get to clause 43—trials that fail are a major worry throughout the country. People see those accused of the most serious crimes going free not because the system worked, but because it was tampered with so as to make a conviction impossible. One of our most senior judges wrote to my noble Friend Baroness Scotland, just before he was elevated to the Appeal Court, to describe his experiences. He was talking about an organised crime case that took more than three years. Each year, the jury was nobbled—it was discharged twice—although the case was finally concluded. He said that it was surely not a coincidence that the key players were acquitted after those three years and only the minor ones convicted.

If we do not change the law, we will end up with such situations over and over again. We will end up with what is happening in Merseyside with Operation Dolphin, where serious and organised criminality is taken to court again and again but the juries are tampered with—people are either threatened or bribed—and discharged. Would it really be sensible to say in such circumstances that the judge could not carry on with the trial, which is what the Opposition amendments suggest? Given that the original jury have been tampered with and the next jury would know that, it would be difficult to get another jury and they would be under constant threat too.

I was asked how many trials had been discontinued because the jury had been threatened or intimidated. In London alone, we are spending more than £9 million on constant 24-hour surveillance for a large number of trials. Of course, 24-hour surveillance, support and protection will continue, but we will ensure that the course of justice can take shape—clause 43 deals with this—in such cases. It will not be whispering in the ear of the judge, as was mentioned, because we have tightened the criteria for the evidence of serious risk—the real and present danger—which echoes the common-law test for police protection in those cases to ensure that we get it right.

Dominic Grieve (Conservative, Beaconsfield)

Those figures are important. The fact that £9 million has to be spent in that way is regrettable, but it is necessary and it is a drop in the ocean compared with the overall bureaucracy costs of the Home Office. However, the Home Secretary did not answer the question, which was how often juries had to be discharged because of nobbling, which is not the same as having to provide them with protection.

David Blunkett (Labour, Sheffield, Brightside)

That will be in the hands of the judge, who has to agree to the discharge of a jury because of what we will describe from here on in as jury nobbling. He has to determine whether the jury should be reformed and the case passed on or whether he should continue with it, and it is right that he should do so. We should not allow those who want to disrupt, dislocate and destroy the course of justice to succeed. When the end of a trial approaches and they fear conviction, they intervene. Let me be clear about this; let us get into the real world—the world not of inciting people to commit judicial murder, but of injecting a little common sense into the debate. People do not disrupt and intimidate juries, threaten their lives and those of their families, telephone them or email them if they believe that the accused is about to be acquitted; they do so for one reason only—because they think that those in front of the judge and jury will be convicted. They do so to ensure that the jury cannot continue and will not convict. We are dealing not with innocents abroad—we appear to be doing so in here, but not out there—but with the real world of people who are determined to threaten other people, and in some cases to take their lives and liberty.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

May I take the Home Secretary back to clause 41, which enables a defendant to make an application to be tried by a judge and not a jury? Are we not simply giving a defendant the right to choose the tribunal that, in their opinion, is most favourable to their interests? That would simply make life easier for the sort of people that the Home Secretary is busily criticising.

David Blunkett (Labour, Sheffield, Brightside)

I would hardly do that if I thought that a judge sitting alone was an advantage to the organised criminal, would I? I do not believe that it is. As I spelled out, I believe that in cases where a jury has been intimidated for the sole purpose of getting an acquittal or disrupting a trial so that the jury has to be discharged, a single judge should take the case forward. I have confidence that the judge would not be intimidated and that that system would lead to a fair trial, with the innocent being acquitted and the guilty convicted. I can hardly be expected to contradict that belief by contradicting myself on clause 41. In other words, I think that judges are in a position to make those judgments sensibly.

Vera Baird (Labour, Redcar)

I can see the merit and strength of my right hon. Friend's arguments about clause 43. May I ask him about two points? First, in Committee, we were given the assurance that the provisions would be used only as a last resort and that, for instance, attempts would be made to move the trial to a different location, or juries would be offered taxis to and from court so that knowledge about the place in which they lived would not be readily available. We were assured that all those steps would be taken and that the provisions would be engaged only as a last resort.

Secondly, my right hon. Friend talked about not pouring nonsense into the judge's ear and said that he was trying to tighten up the measure to deal with that concern. I am grateful for that. However, the difficulty has been raised that the prosecution might want to say things to the judge, to persuade him to try the case alone, that could not be disclosed to the defendant. Has my right hon. Friend applied his mind to that problem?

David Blunkett (Labour, Sheffield, Brightside)

On the first point, yes, every measure should be taken to ensure that due protection is provided, including relocation where appropriate. In fact, we have gone further by setting out examples to show where we believe it would be necessary to invoke the new provisions, such as retrial, following tampering in previous proceedings involving the defendant, or where such disruption had taken place and where intimidation or attempted intimidation was shown to have occurred in the light of the strict requirements that I set out earlier. We have gone further by including such provisions in the Bill. I shall give way to my hon. and learned Friend again so that she can explain the latter part of her lengthy question.

Vera Baird (Labour, Redcar)

I thank my right hon. Friend for his assurance that trial by judge alone would be used only as a last resort.

My second point was that in order to persuade a judge that he should try a case on his own, it might be necessary for the prosecution to say to that judge, "We have intelligence of the following kind". It might not be in the public interest to disclose such material to the defendant, but how is the defendant to argue for his right to jury trial in that situation? When I raised a similar point on an earlier occasion, my right hon. Friend thought that there might be a possibility of appointing special counsel, such as those he is familiar with at the Special Immigration Appeals Commission, so that someone can represent the interests of the defendant in challenging that ex parte evidence without the obligation to report back to the defendant what he has heard. I hope that I have made the position clear.

David Blunkett (Labour, Sheffield, Brightside)

I am familiar with my hon. and learned Friend's point about public interest immunity. She will be familiar with the case of Edwards and Lewis, where the judgment was unclear. We think that there is a need for clarity and, unusually, we have referred the matter to the Grand Chamber and we shall be prepared to look at and take the necessary steps to ensure that safeguards are set up. The point is serious, but there is not yet sufficient clarity for us to be able to deal with it this afternoon.

Clause 45 includes further provisions to deal with discharge due to tampering. I am at something of a loss in relation to the Opposition proposition and its relationship to clause 43. Our proposition is twofold: to make it clear that jury tampering must be the prime cause of discharge; and to insert provisions to make it clear that the judge must be absolutely satisfied that jury tampering has taken place before continuance without a jury.

We are mystified by the Opposition's proposal as it seems to confuse several issues in respect of the risk of tampering and where tampering has already taken place. They appear to be ratcheting up the conditions so that the threshold is higher. They appear unsure whether they want the excessive burden of 24-hour police protection to be a condition, and they do not appear to want the judge to carry on with a case when he or she has discharged the jury because tampering has occurred. I am at a loss to understand either how that relates to their amendments to clause 43 or how it would assist us to find a way forward. I presume that is why, in their wisdom, the Lords chose to throw the whole lot out rather than assisting us in finding a solution.

Dominic Grieve (Conservative, Beaconsfield)

I am sorry that the Home Secretary cannot understand two perfectly simple concepts in respect of clauses 43 and 45. Where it is suggested that there should be no jury because of a risk of nobbling, but in fact no such jury tampering has taken place, we believe that an extremely high test should be applied before such a measure is implemented—if indeed it is implemented at all. We take the view that the question whether juries require police protection is not material at that point; the question is whether tampering would still take place. Where tampering has already taken place we think that there should be a different test because we accept the principle that it is extremely important that justice can continue to be done. Nevertheless, we think that the Government's proposals on clause 45 are far too loose and should be tightened up, which is what we have tried to do.

David Blunkett (Labour, Sheffield, Brightside)

I certainly concede that the Opposition want to tighten up the proposals—they want to tighten them so much that they would be difficult to operate. My point is that we have a common-law test—I referred to it earlier—and we also have the new presumptions that I am setting out in the Bill. In addition, the judges will have to apply a test in respect of the protections that are being offered, such as the requirement for 24-hour protection—is it possible to protect the 12 members of the jury on an ongoing basis, week by week, or has the perceived and real threat of intimidation reached the point where it is impossible to secure a fair trial? In the cases that I have cited this afternoon, that was clearly not so.

I am sure that everyone in the Chamber wants to ensure that serious criminals do not go free when they are guilty simply because they have been able to exercise intimidation. If we believe that, the argument between us is about the point at which we can be secure in our minds that the tests have been passed and that it is better to have a judge sitting alone rather than a mistrial when criminals walk free. That is what we are talking about.

Our proposals do not threaten the basis of jury trial. The then Lord Chancellor, the Attorney-General and I discussed and agreed my suggestion that we should not proceed with the previous mode of trial Bills, and we are not doing so. As I said on Second Reading, the suggestion that we are doing that is an outrage—it distorts the situation beyond belief and misleads people of very good will into believing that we are doing something that we are not. We seek to protect justice, to get to the truth and to ensure that the amendments that we are putting back, and to which we are asking the House of Lords to agree, both reflect the debate over the Bill that has taken place over the past few months and secure the original intention—to ensure that we protect the public in those circumstances.

In the end, justice is about securing protection for the innocent in the community as well as for the accused, but it is also about getting to the truth and protecting ourselves. It is no good the Opposition presenting themselves as reinvigorated with the desire to demonstrate their commitment against criminals and their belief in the protection of the public if they come here this afternoon, go to the Lords tomorrow or come to the Commons tomorrow evening to suggest that our measures are not proportionate to ensure that we achieve that goal. They are proportionate. People will be asking a serious question: whose interests would we be following if we gave greater protection to organised criminals before the court than to the communities that we represent? That is why I am moving the amendments.

Dominic Grieve (Conservative, Beaconsfield)

I am sorry that the Home Secretary seems to have adopted a tone of irritation, rather than rationally discussing the matters that the House must consider. I am also sorry that, in doing so, he seems very keen to cast aspersions on the motives of others and to be quite unable properly to envisage why the other place took such exception to the proposals on jury trial. He does not help his case by being unable or, apparently, unwilling to distinguish between the extremely different issues that surround the Government's proposals to fetter jury trial.

The debates on Second Reading and in Committee in the other place were extremely interesting, but from reading the report of the Second Reading debate I was most forcefully struck by the words of Lord Clinton-Davis—a stalwart member of the Labour party:

"To remove juries in allegedly complex cases supposedly too complex for them is utterly wrong. I agree with those in another place that what the Government are prescribing could end with the abolition of jury trials altogether. That may not be their present intention—but it remains a real risk."—[Official Report, House of Lords, 16 June 2003; Vol. 649, c. 613.]

If the Home Secretary wants an explanation of why the Lords took such a hostile view, let me say that it was because of that very real and justified fear.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Does my hon. Friend agree with the rather unpalatable truth that the views expressed in the other place are a more genuine expression of the will of the participants in the debate than the views expressed in this House, because the whipping system in this House has the effect of undermining the legitimacy of the views expressed in a vote?

Dominic Grieve (Conservative, Beaconsfield)

I am sure that my right hon. and learned Friend is right. Of course, there is a lot of experience, freedom and loyalty in the other place, and I am sure that Lord Clinton-Davis would not have lightly expressed a hostile opinion on the Home Secretary's proposals, given his affection for the party in which he has spent most of his career. Furthermore, I am sure that he would not have done so unless he was expressing deeply held beliefs.

I ask the Home Secretary, rather than making general comments on the totality of the proposals, to consider each Government proposal in turn. He made great play of the fact that we are dealing with serious, organised and desperate criminals, but he must accept that clause 41, which he seeks to reintroduce and which gives a defendant the option of being tried in front of a judge alone, undermines the principle of jury trial, which I thought the Government supported, and has no relevance whatever to tackling serious and desperate criminals.

The chances are that many of those who will choose that route are everyday, tuppeny-ha'penny criminals. Interestingly, the Government propose a distinction in clause 41: they appear to be worried that, in some cases, the general public might feel great anxiety about certain criminals having the option of being tried by judge alone, so they seek to fetter that discretion under subsection (6).

I hope that the Home Secretary will repeat this afternoon that the Government believe, as we believe, that the principle of trial by jury is one of the hallmarks of our participatory democracy and that, therefore, if there are good and sound reasons for change—as in Northern Ireland, where the Diplock courts became necessary because of the security situation—that is one thing, but that it is quite another arbitrarily to undermine that principle for no good reason. That, however, is what clause 41 would achieve. I have never understood its logic, unless the Government are looking ahead to a time when jury trial starts to wither on the vine.

I believe in jury trial, precisely because it is a process by which not the state but the public at large bring condemnation on individuals' conduct because they wish to be protected from those individuals. It is an absolutely central concept, and I am sorry that the Home Secretary seems to have completely lost that view of it.

David Winnick (Labour, Walsall North)

Is the hon. Gentleman aware that, to a large extent, he has expressed a view that I, as one of the few non-lawyers in the Chamber, share? Although the Home Secretary has stated that the purpose is not to undermine trial by jury in general, potentially, if not inevitably, there is always a fear, which is in my mind, that once the proposal has been enacted it could be applied to other cases and in future only a minority of cases will be heard by a jury. Although I am not sure whether I shall vote against the Government, I would find it very difficult to vote for what the Home Secretary is recommending.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the hon. Gentleman for that intervention, and I take seriously the views that he expresses. Once one undermines the concept and principle of jury trial, as envisaged in clause 41, siren voices will soon be heard in the Treasury and elsewhere saying how much cheaper it is to have trial by judge alone. In those circumstances, why go to the bother of all those poor people being empanelled and being put upon to serve on juries? Why have all those funny processes by which funny points have to be argued in the absence of the jury? Of course, juries are less convenient, but I believe that, in a country such as the one in which I wish to live, they are an inconvenience worth paying for over and again.

Edward Garnier (Conservative, Harborough)

Was not one of the most telling remarks that the Home Secretary made during his somewhat un-put-together defence of this part of the Bill his reference to £9 million? When my hon. Friend and I have asked him about the number of juries that have been nobbled he has not been able to provide us with an answer, yet he has come up with the fact that a trial is costing £9 million to protect. Frankly, so what? [Hon. Members: "It is an annual figure."] It may be an annual figure, but it is tiny.

David Blunkett (Labour, Sheffield, Brightside)

It is not a tiny figure.

Edward Garnier (Conservative, Harborough)

It is a tiny figure when one considers the fact that the cost of criminal justice is measured, I would guess, at about £1 billion a year. If one additionally bears in mind the police budget and judges' salaries, £9 million is a tiny figure compared with the overall figure that the state is required to pay for the justice system. Is it not interesting that the Home Secretary seems more terrified of the Treasury and the paltry figure of £9 million than he is of failing to defend the interests of justice for the public overall?

Dominic Grieve (Conservative, Beaconsfield)

I agree with my hon. and learned Friend. The Home Secretary has given that figure and, yes, I very much wish that juries did not have to be protected, but that is a price that we have to pay in a difficult environment to ensure that justice is done in the way that we think is right. Adducing that argument is completely different from saying that it is impossible to protect juries, and it is the mixing of those two things that I find so worrying in the Home Secretary's approach, because there have been a series of propaganda utterances, rather than a rational discussion of the issues.

I do not want to take up too much of the House's time—I am aware that other hon. Members wish to speak—so I shall turn to the next issue in which the Government wish to fetter the right to trial by jury: certain complex or lengthy trials. I was somewhat charmed—I suppose that is how I should describe it—to hear that the Home Secretary felt that the original Government text had to be amended at this late stage, given the risk that the scope of those trials might go well beyond fraud to other types of case. I remember pointing out that risk very gently in Committee. I said that the only area in which I practise—health and safety at work—would fall squarely within those provisions, and the Minister told me that I was completely wrong. That does not exactly raise my confidence in the Government's competence.

The other point that the House must consider very carefully is that, even by the Government's standards of drafting, clause 42, whatever flaws it may have contained, previously provided a measure of judicial discretion. As I understand it, however, under the new proposal, by having trial on the back of a notice under section 51B of the Crime and Disorder Act 1998—which I had considerable difficulty finding until I realised that it is inserted by the Bill and exists only as a figment of the drafter's imagination—there will be no discretion. If I am wrong, I hope that the Home Secretary will correct me. The question of judicial discretion runs right through these proposals. The Home Secretary might recall that when this matter was debated on Second Reading, Lord Woolf, the Lord Chief Justice, forcefully expressed the most grave concern about the totality of these proposals:

"I recognise that many strong and sincere opposing views will undoubtedly be advanced to your Lordships. In those circumstances, instead of becoming involved in the matters which will be well ventilated before your Lordships, I propose merely to stress that if these powers remain part of the Bill, it should be made clear that they can be exercised only when it is in the interests of justice for this to happen. That should ensure that there is the minimum risk of the exercise of those powers resulting in injustice."—[Official Report, House of Lords, 16 June 2003; Vol. 649, c. 573.]

If this measure fetters judicial discretion, it runs contrary to the tenor of that argument.

David Blunkett (Labour, Sheffield, Brightside)

I want to make it absolutely clear that I agree entirely with the Lord Chief Justice's comments. As far as I am aware, the new clause's provisions on discretion reflect the tenor of the hon. Gentleman's amendment—that, taking clauses 43 and 45 together, the discretion would be removed because there would be no power for a judge to decide to continue to sit in prolonged trials; there would have to be a fresh trial and a jury reconvened.

Dominic Grieve (Conservative, Beaconsfield)

If the Home Secretary will allow me, I shall return to that point when I come to clauses 43 and 45, because I think that he is wrong on that issue, and I shall explain why.

The Opposition do not believe that the proposals on complex or lengthy trials are necessary. In the current year, the Serious Fraud Office, which deals with the most complex cases, has achieved a conviction rate of 92 per cent. Since it was set up, it has achieved a conviction rate of 84 per cent. That simply does not support the Home Secretary's view that juries are unable to deal with long and complex trials.

The Home Secretary knows of the Law Commission's recent proposals on multiple offending, which is closely linked to fraud. In many instances, a trial for fraud will involve specimen counts, with many other offences being taken into consideration. I fully accept that the mischief at the moment is that, short of having a lengthy trial, it is difficult to deal with those offences if a defendant who has been convicted does not accept them. That is why I was delighted when the Government suggested that they intended to incorporate the proposals on multiple offending in this Bill. I believe that such a proposal would be given a fair wind were it ever to come before this House. It is precisely because such procedures may exist that the House should be so cautious about, in the same breath, getting rid of juries for lengthy and complex trials. I do not believe that is necessary. The need will certainly be reduced, and, as I asked the Home Secretary, where is the evidence that juries cannot deal with such cases? If the evidence is that they can do so, what possible good reason exists to fetter their right to hear those cases in exactly the same way as they deal with any other criminal who is alleged to have committed an indictable offence?

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Does my hon. Friend also agree that a jury is much more likely to be able properly to consider a case if substantive offences are charged rather than the Crown coming forward with a charge of conspiracy?

Dominic Grieve (Conservative, Beaconsfield)

Speaking from personal experience, my right hon. and learned Friend is absolutely right on that point. Keeping matters simple is in the interests of justice and of achieving the conviction of the guilty, and my experience is that fraud trials tend to go wrong when the prosecutor overloads the indictment and fails to keep matters simple. Oddly enough, when matters become muddled for the jury, they also become muddled for the public, so the risk with trial by judge alone in long and complex fraud trials is that matters will appear so esoteric that, even if a conviction is recorded by the judge, the public will fail to understand the full extent of the criminality of the person concerned, which we should avoid.

David Blunkett (Labour, Sheffield, Brightside)

Is the hon. Gentleman's proposition that it is more important that the public should understand what went on, even if a guilty man is found innocent, than it is to get a conviction, even if the public were not absolutely clear about the exact nature of a trial that lasted for 18 months or more? Does not that fly in the face of the Roskill report of 1986, with which he will be familiar as a lawyer?

Dominic Grieve (Conservative, Beaconsfield)

Justice must be done and be seen to be done. It is desirable that both those things should happen, and I believe that both those things can happen. In the light of the Serious Fraud Office's excellent work in simplifying fraud trials and bringing them to a conclusion, and of the Government's proposals on multiple offending, which could be of great benefit, I do not believe that the proposed measure is necessary. If necessity could be made out, I am sufficiently pragmatic to listen carefully to what the Home Secretary has to say. Where is the necessity for this measure?

I want to deal finally with the issue of jury tampering, on which there are two distinct clauses. One provides a mechanism by which a judge may try a case without a jury when he considers that there is a risk of jury tampering but none has occurred. The second deals with instances in which jury tampering has taken place, such that a jury must be discharged in the course of a trial. If I may say so to the Home Secretary, those are two very different concepts. There is, however, one thing on which he and I can entirely agree: it would be a disaster if a state of affairs were ever to exist in this country whereby trials could not take place at all because of jury tampering, and justice could not be done. That was what underpinned the decision to set up Diplock courts in Northern Ireland, and I fully understand the rationale, even if I regret that a state of affairs arose that made that necessary.

Clause 45 deals with jury tampering. I say to the Home Secretary, as I said in Committee—and, heaven knows, as I said to the Prime Minister one day in Prime Minister's Question Time—that I understand what the Government are trying to achieve. If, as the Home Secretary says, the evidence is such that this is a deteriorating situation that is gravely inhibiting the processes of justice, we are prepared to co-operate with the Government to try to arrive at a formula that would allow for trial without a jury in those exceptional circumstances. The Home Secretary told me earlier that the amendment that I tabled to tempt the Government into dialogue was flawed because it did not envisage the judge continuing with the trial on his own. If he cannot understand why it would be impossible for a judge to continue with a trial on his own after the discharge of a jury, he does not understand some of the basic and elementary features of the criminal justice system. That situation might cause the utmost unfairness. It could not rationally be done, so there would have to be a retrial in front of a judge, if that was the exceptional course that had to be adopted.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

May I reinforce my hon. Friend's point by putting an example to him? In the first trial, there could have been a whole class of evidence that is not used in the second trial. In such circumstances, the trial judge would inevitably have in mind material that was adduced in the first trial, but not in the second one.

Dominic Grieve (Conservative, Beaconsfield)

My right hon. and learned Friend is absolutely right. It would be impossible and undesirable for a judge to continue in such a situation. We would need a fresh trial with a fresh judge.

David Blunkett (Labour, Sheffield, Brightside)

I hope that this will be my final intervention on the hon. Gentleman's speech. Does he therefore agree, in the same vein, that where a jury had been intimidated it would be difficult for witnesses who had already given evidence to be called in the second trial? That situation is not impossible, but it would be difficult, as the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) pointed out. One must compare witnesses who put their necks on the block with judges making judgments or the need for a jury to hear evidence presented in a new way.

Dominic Grieve (Conservative, Beaconsfield)

I accept that there might be difficulties. I have been involved in retrials, where witnesses have been put to the inconvenience of returning.

David Blunkett (Labour, Sheffield, Brightside)

Threat.

Dominic Grieve (Conservative, Beaconsfield)

The Home Secretary says "threat", and there are occasions when witnesses are threatened. Equally, however, it is not possible to hold a fair trial if the procedure shifts from trial by jury to trial by judge alone halfway through a case. It is as simple as that—it is not procedurally possible.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I agree with the hon. Gentleman. Would the provision not be in breach of article 6 of the European convention on human rights, because there could not be a fair trial in such circumstances?

Dominic Grieve (Conservative, Beaconsfield)

I agree with the hon. Gentleman. The provision would be in breach of article 6. It is a non-starter. Leaving aside everyone else's views about the Bill, all the lawyers who practise in the courts to whom I have spoken regard the measure as nonsense and completely unworkable.

Edward Garnier (Conservative, Harborough)

May I give my hon. Friend a further example to help him to destroy the Home Secretary's non-argument? No one in their right mind would think it right to allow a retrial to take place in front of the original jury who had heard prejudicial evidence against the defendant. Simply transferring the tribunal of fact from the jury to the original judge would not cure the position. I would have thought that Ministers might have got their heads around that much.

Dominic Grieve (Conservative, Beaconsfield)

I agree with my hon. and learned Friend, although part of the Government's idea is that the judge continues seamlessly, which is equally impossible.

I hope that the Home Secretary will consider our amendment to clause 45. Of course, it is drafted using tighter language than his provision because I want the courts to make examinations in minute detail if applications are made for a retrial without a jury, because juries can often consider cases after jury nobbling has occurred. I hope that the way in which we have drafted the amendment—it includes the word "sure" and relates to a great risk—would help to achieve that.

I turn to applications by the prosecution for a trial to be conducted without a jury if there is a danger of jury tampering. The Home Secretary expressed surprise that our amendments were differently worded, but that is because they address two completely different situations. [Interruption.] The amendments are not contradictory, and if the Home Secretary wishes to intervene, I shall give way. There is no contradiction because we say that before a jury is empanelled, there must be an overwhelming risk of jury tampering in order to show that a fair trial could not take place. A court should not consider how long a trial will last or issues of protecting juries at that time. It should decide on a simple question: if a jury were given protection in the usual way, would there be such an overwhelming risk that jury tampering would take place that it would justify an exception to the rule that there should be a trial by jury? I hope that the Home Secretary will think about that further.

Robert Marshall-Andrews (Labour, Medway)

Will the hon. Gentleman put his mind to one thing that relates to both his amendment and the Government text, because it appears to many Labour Members that they suffer from the same danger of causing an injustice? If one defendant, however minor, in a case with, say, five, six, seven, eight, nine or 10 defendants is, or may be, guilty of jury nobbling, all defendants would lose their right to jury trial. Furthermore, under the Government's proposed subsection (7) to clause 43, which gives examples, all defendants would lose their right to jury trial in any future trial, as would anyone they were tried with in that future trial. I welcome the hon. Gentleman's views on that because I agree with much of what he says.

Dominic Grieve (Conservative, Beaconsfield)

I have no difficulty agreeing with the hon. and learned Gentleman. That said, in a spirit of constructive dialogue with the Home Secretary, I am prepared to work my mind around to the possibility that one could end up with a case, although I find such examples far-fetched, in which it was apparent from preceding events that the ability of a jury to try the case without being tampered with, intimidated or prevented from returning a true verdict was such that it would be proper to adopt a Diplock court approach. The hon. and learned Gentleman is right that that would raise a concern about future trials. A fresh look should be taken at future cases and they should not be tainted by what happened before. That is undoubtedly one problem with the Government's proposals.

I do not want to take up more of the House's time. Others wish to speak. I simply say to the Home Secretary that I hope he understands how the Opposition see the problem. We want a constructive engagement on jury tampering, if that is possible. Beyond that, however, I had hoped that the Government would adopt a more flexible approach to the issues, which have caused great anxiety across parties, but I regret to say that they have not done so. Even at this late stage, I hope that the Home Secretary will revise his approach.

John Denham (Labour, Southampton, Itchen)

I want to make an observation on the amendments and to put them in the context of debates in and outside the House on the development of the criminal justice system. It is striking how often we are told that we face an unstoppable rise in crime, with criminal gangsters dominating the country and our communities and acting with impunity. Yet whenever there is an attempt in legislation to focus on the shortcomings of a part of the criminal justice system, we almost always end up in a debate like this one, which suggests that not much is wrong with it and little needs to be fixed.

Buck-passing is common when it comes to the failings of the criminal justice system, by which I mean the failure to deliver a system in which the public have confidence that those who are guilty will be caught, convicted and dealt with appropriately, and those who are innocent will go free. The police often blame the Crown Prosecution Service and the courts; the courts often blame the police and the CPS; and the CPS often feels like the meat in the sandwich between the two.

Throughout the criminal justice system, there is an unwillingness to recognise that there are flaws in each part of the system that have to be dealt with proportionately and appropriately. The Government are not claiming that everything that is wrong in the criminal justice system lies within the courts, but that, as part of the overall reform of the system, appropriate adjustments need to be made to the way in which the courts operate.

Edward Garnier (Conservative, Harborough)

There is a problem with the line that the right hon. Gentleman is taking. Nobody suggests that the entire criminal justice system is perfect; plenty of it could do with reform. However, if parts A, B and C need reform, the answer is to amend them, not to reform parts G, H and J. Yet the Government are lumping together in the jury system all their prejudices and anxieties about the failure to produce enough convictions when there may be other matters that require consideration.

John Denham (Labour, Southampton, Itchen)

I am tempted to say, "I rest my case." The hon. and learned Gentleman has made precisely the sort of intervention about which I complain. People in all branches of the criminal justice system say, "It's not my bit that causes the problem." However, there are problems in all parts of the system. Police performance is not as good as it should be; the CPS does not always get it right; and parts of our court procedure are wrong. We need to tackle each part of the system. It is too easy for the police to say that the CPS and the courts are the problem, and that they are let down by them. We have all had that conversation with some part of the police service. It is also not right to claim that the courts are fine and that everything goes wrong in the process that leads up to court proceedings.

Gwyneth Dunwoody (Labour, Crewe and Nantwich)

Does my right hon. Friend accept that those of us who are uneasy about the changes are motivated not by any worry about lawyers' views but by something more fundamental? If one changes in law a right that has existed for a long time for men and women in this country, one has to be certain that the change is not only justifiable but needed, and that it cannot be achieved in any other way. If I am worried about the amendments, I emphasise that it is precisely for those reasons.

John Denham (Labour, Southampton, Itchen)

I accept that hon. Members might be worried about the changes for those reasons. However, in the past, I have had some opportunity to examine the criminal justice system and I am sufficiently convinced that there are enough problems, especially intimidation of juries, to warrant changes in the limited cases that will, I hope, result from the Bill. Every hon. Member must make that judgment.

John Burnett (Liberal Democrat, Torridge and West Devon)

rose—

David Winnick (Labour, Walsall North)

rose—

John Denham (Labour, Southampton, Itchen)

I shall give way first to the hon. Member for Torridge and West Devon (Mr. Burnett) and then to my hon. Friend.

John Burnett (Liberal Democrat, Torridge and West Devon)

The right hon. Gentleman enjoys considerable respect in the House. Will he be specific about his criticisms relating to the three matters that are under discussion—lengthy trials, defendants' rights to opt for jury trial and jury tampering?

John Denham (Labour, Southampton, Itchen)

I did not intend to speak about those three points at great length. Intimidating juries and jury nobbling or tampering causes me the greatest anxiety because of the impact on the public's confidence in the criminal justice system in communities where those who are involved in organised crime believe that they are invulnerable to the law and where that belief is shared by others who live there. We all know that such communities exist. My right hon. Friend the Home Secretary has set out concerns about jurors in complex fraud cases, and the case, which seems to me arguable, for allowing individuals to choose mode of trial. My greatest personal concern is the danger of intimidation.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

rose—

John Denham (Labour, Southampton, Itchen)

If the hon. Gentleman will forgive me, I promised to give way to my hon. Friend the Member for Walsall, North (David Winnick).

David Winnick (Labour, Walsall North)

I ask, in the friendliest possible way, what my right hon. Friend would say if we were the Opposition and a Conservative Government were making such proposals. I listened carefully to Opposition speeches, and I fear that a future Conservative Government, however distant that prospect may be, could build on these proposals, and that we, as the Opposition, would be all the more determined to oppose them. That is an irony of the proposals.

John Denham (Labour, Southampton, Itchen)

I am pleased that my hon. Friend is a fellow member of the Select Committee on Home Affairs, partly because we share an interest in strengthening the House's ability to scrutinise legislation properly on the basis of the facts rather than having everything automatically polarised on party political lines. He may be right that some of us would in the past have reacted to the proposals purely on an oppositionalist, party political basis. I believe, however, that we should consider these matters on the strength of the arguments, and that the case should not be taken forward on the basis of the slippery slope argument, or of the argument that the other party might do something different. I shall take one more intervention, then I must finish; other hon. Members wish to speak.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

As an ex-Home Office Minister, the right hon. Gentleman will know that the Home Office collects statistics on everything. Why are there no reliable statistics on jury nobbling?

John Denham (Labour, Southampton, Itchen)

Despite the hon. Gentleman's contention, such statistics are obviously not collected by the Home Office. However, I was convinced of the extent of problems in specific areas of the country involving jury nobbling and—a separate issue—tampering with witnesses.

Geoffrey Robinson (Labour, Coventry North West)

I would be very grateful if my right hon. Friend would give way.

John Denham (Labour, Southampton, Itchen)

I will take one last intervention.

Geoffrey Robinson (Labour, Coventry North West)

My right hon. Friend has rightly identified this as a crucial area, and one that is important to him. Surely, however, the system cannot be brought into disrepute because of a problem of intimidation. The problem that needs to be tackled is the intimidation. The system, which is so good, is threatened by that. Surely he must see that he is putting the cart before the horse, and that we should tackle the underlying cause of the problem. The threat to a jury cannot be accepted, and we have to deal with that.

John Denham (Labour, Southampton, Itchen)

I agree that every effort must be made to protect a jury from intimidation, but my hon. Friend puts forward another example of the argument that says, "If only we did something else, we would not have to tackle this problem." I believe that changes are needed throughout the criminal justice system. Now, having taken more interventions than I ever did when I was a Minister, I shall sit down.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

This is a really important debate, and we are not going to have enough time for it today, so I shall try to describe briefly why the Liberal Democrats seek to uphold what the House of Lords did in relation to clauses 41, 42, 43 and 45, albeit for different reasons, but while following the same basic principle. I want to reinforce a point that has been raised on both sides of the House, including by the hon. Member for Crewe and Nantwich (Mrs. Dunwoody). I would say to the right hon. Member for Southampton, Itchen (Mr. Denham) that we are talking about an element of the criminal justice system that commands great respect and has been seen to do a very good job for 800 years. We are talking about a mini-democracy, a mini-Parliament. The fact that the public come into the criminal justice system as lay magistrates and jurors from all walks of life means that their decisions about guilt and innocence are taken far more representatively than they would ever be by a single judge. That is the fundamental principle.

As the hon. Member for Coventry, North-West (Mr. Robinson) intimated, a second principle is that, while we should of course look at the criminal justice process and at whether the courts do their job properly, there is no significant evidence that the element of the system that fails most—or even comes close to doing so—is trial by jury. In fact, the parts of the system involving catching and deterring criminals, bringing them to court and ensuring that the trial starts all have flaws, as does the prison system, which does not rehabilitate properly. The part that stands up to the greatest test in terms of its success is the jury trial system. There is no suggestion that lots of guilty people are always getting off—that is not a criticism that is being made. There is also no suggestion in any part of the country that women, men, old people, young people, black people, Asian people or white people think that the system does not work for them; they all have confidence in it, more than in any other part of the criminal justice system. That is the strongest reason for not changing it unless there is overwhelming evidence to suggest that, for a particular reason, we should do so.

Having made the general proposition, I appreciate that there are four different proposals before us that we have to consider separately. First, should we allow people the right to choose to do without juries? Secondly, should we do away with juries in long and complex fraud cases? Thirdly, should a person be deprived of the right to a jury trial halfway through a case in which there has been jury tampering, or, fourthly, in a prospective case, where there is a prospect of jury tampering? I am not naive about the fact that there are different cases, and we must examine each of them on its merits.

Dominic Grieve (Conservative, Beaconsfield)

We know, do we not—the hon. Gentleman might agree—the statistic that upwards of 90 per cent. of all recorded crime is never prosecuted in any court of law? If he is looking for a solution to the problems of crime and criminality, that is the first aspect to which we need to address our attention.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I agree absolutely. Most cases that go to the magistrates court result in a guilty plea, and a conviction is therefore secured.

May I deal with a second set of paradoxes about the Government's position that I find confusing? I do not blame the Home Secretary for the first of them. In the first term of the Labour Government, there were proposals, as he has referred to them, to restrict people's right to choose jury trial. They were put forward twice and defeated twice. Now we are being presented with the tempting proposition that we should allow people to choose to do away with jury trial. Although that is superficially appealing, may I put one argument as to why it would be a dangerous road to go down?

The argument was most effectively put by the hon. and learned Member for Redcar (Vera Baird)—I pay tribute to her—when she said, "Take a white defendant on a racial attack charge. Would he not find it a better prospect to appear before a white judge than a mixed jury? Take a male defendant on a sexual assault charge. Would he not perhaps choose to appear before a male judge rather than a mixed male and female jury?" Juries do not have reputations—they cannot, by definition—but judges do. If we go down this road, the choice of whether to elect for a judge will often be made by someone saying, "I'm going for the judge because they are thought to be soft and lenient." Those things cannot be predicted in a jury. Juries are much more uncertain. They do not have a reputation, and they have none of the disadvantages of a single judge who comes to every case with a reputation.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

The hon. Gentleman has given examples of individuals who might wish to be tried before a judge rather than by a jury, but classes of case are also relevant here. For example, one can imagine that when railway crashes are dealt with under health and safety legislation, the defendants—directors of a large company—might prefer to be tried by a judge alone, not by a jury. Is that in the public interest?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

That is one of the strongest arguments against giving serious fraud cases to the judge alone. It would look much more often as though the white-collar defendant was getting the white-collar judge—the single judge—whereas the blue-collar defendant, who represents the much more common non-fraud case defendant, would get the jury. These are really important matters.

I get confused about another thing. In the Bill, the Home Secretary is saying, "Trust the judges," but I have heard him say—or I and a lot of other people think that we have heard him say in other cases—that we should not give such great trust to judges. If there is a choice, although I trust them both, I believe that juries receive more trust from the public than judges do. Juries are not paid by the state. Even though they are independent, they are not seen to be part of the establishment. They are real people doing a voluntary service as part of their civic duty, and they do it very honourably.

Furthermore, the Government appear to be a bit confused because later in the Bill, in relation to previous bad character, they say, "Trust the jury. Put the evidence before them, and they can decide." We say in this context, "Put the evidence before the jury—they are well equipped to decide." I also wonder whether we are considering these proposals because juries are more unpredictable than judges and more out of the Government's control.

David Blunkett (Labour, Sheffield, Brightside)

The hon. Gentleman is moving on to pastures new, but is he seriously suggesting that any Government, not just this Government, or any Executive, not just this Cabinet, control judges and their decision making in court?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Of course not, which is why I have never taken the view that the Home Secretary appears sometimes to have taken, which is that the judges should not be allowed to get on with their job and be properly independent. I have always taken the view that they should be allowed to do that. The great thing about juries is that they are far less predictable and manageable because they are far more independent. They are 12 people who have come together to form a collective view. That is bound to be more persuasive than any other method of deciding right and wrong, and guilt and innocence.

Robert Marshall-Andrews (Labour, Medway)

Would it be fair to add to that list of advantages of the jury system the incorruptibility of the system? Talk of nobbling, threatening or corrupting juries reveals one of the strengths of the system, not a weakness in it. It is almost impossible to subvert a jury of 12: in a lifetime of crime, I have never known it to happen. The placing of one judge in the firing line, who could be either bribed or nobbled, is surely much greater cause for concern.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I agree—although I suspect that the hon. and learned Gentleman meant "in a lifetime of dealing with crime".

If something works, we should not try to replace it unless there is an overwhelming argument for doing so. Secondly, the public are involved to an extent that we reduce at our peril. Thirdly, a jury contains people who do not arrive with a reputation and can therefore be entirely impartial. Fourthly, the jury system requires cases to be outlined in language that the public understand. There is no elite performance by lawyers for lawyers; this is publicly accessible justice, and we really ought to defend it.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

May I respectfully add to the hon. Gentleman's list the fact that it is always preferable to have 12 judges of fact, rather than one?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

That must be true, and any dogged and obstreperous individual can be dealt with now that majority verdicts are permitted, and frequently used.

In the other place, my noble Friend Lord Dholakia pointed out that minority communities in particular—black and Asian communities—have great confidence in the jury system. They believe, as all the research and other evidence shows, that they will be given a much fairer trial by a mixed-race jury than by a single, normally white, judge. The Commission for Racial Equality has advanced strong arguments in favour of the jury system, on the grounds that it is race-proof and much more equitable.

Many others argued points of principle in the House of Lords. Probably the strongest speech was made by a Government supporter, although she did not support the Government in this instance. On 15 July, Baroness Kennedy of The Shaws presented the central arguments in favour of jury trial.

Let me deal with the four propositions in turn. The first I have already dealt with: although, superficially, the amendment constitutes an appeal for people to be allowed the right to opt out of jury trial, it is likely to give the impression of creating a two-tier system, and a system in which people tend to use their own judge. A case in which a terrible sex offender, for instance, ought to be tried by his or her—normally his—peers might turn out to be the case that cannot be considered by a jury.

Secondly, there is the issue of serious fraud cases and very lengthy cases. I accept that the Home Secretary has made a concession in limiting his proposals to fraud cases, but my colleagues and I have not remained static. We have suggested an arrangement that would allow juries to be representative, but to be selected in a way that would make it practical to ensure that their members could remain on duty for a year, or for nine or six months. The Government rejected our suggestion.

Our view is simple. We do not think there should be a two-tier justice system, in which what happens depends on the nature of the charge and the offence being considered by the court. The fact that a case is long and complex in terms of paperwork need not mean that the issue is difficult for a jury to deal with. As the hon. Member for Beaconsfield (Mr. Grieve) reminded us, all the evidence suggests that there are much higher conviction rates in such cases than in the other cases with which courts must deal.

Finally, there is the question of jury tampering. I understand the arguments, and the most appealing are those in favour of a system allowing the courts, if necessary, to take steps to deal with such tampering. The hon. and learned Member for Medway (Mr. Marshall-Andrews) said that we must not allow that part of the system to be put at risk. The hon. Member for Coventry, North-West referred to all the other measures that must be taken to show that we will not allow people to interfere with the criminal justice system, and that those who do so will experience the most extreme punishment.

My colleagues and I prefer to take the road embarked on by the hon. Member for Beaconsfield and his hon. Friends. We are willing to work with the Government to ensure that we do not have half a trial with a jury and half a trial without, as that is a ludicrous proposition. We are also, in serious cases of jury tampering, in which the defendant could not have a fair trial in any circumstances, willing to look at alternatives, but only if there is a high threshold. However, we are not considering that this afternoon. If we have time in the following days and weeks, we may reach an agreement. We are willing in the next 48 hours to work to come to an agreement, but we are not willing to compromise on the principle, against a guillotine and a deadline in the House that are not of our making.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I agree with much of what the hon. Gentleman has said, but on jury tampering, if there is a retrial or further trial after the discharge of the jury, does he agree that the second judge—a judge of fact in a judge-only trial—must be different from the judge in the first trial, because otherwise there is a danger that the judge in the second trial will have heard evidence not adduced in that trial.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I agree.

In a matter of hours, the President of the United States will make a state visit to this country. The constitutional settlement of the United States of America includes many good things. In the Declaration of Independence, one of the objections to the King concerned the fact that he was

"depriving us in many cases, of the benefits of Trial by Jury".

That concern resulted in the right to trial by jury being protected in article III.2 of the United States constitution. I am not aware of any circumstances in any of the jurisdictions in the United States in which defendants in serious cases can be denied the opportunity to trial by jury—[Interruption.] The Home Secretary has rightly mentioned Guantanamo Bay, and he knows that Members on both sides of the House believe strongly that it is a no-go area, which is entirely unacceptable. There is also the issue of military tribunals, but on the US mainland, the jurisdictions have upheld the right to jury trial.

The right to jury trial is precious, and it works well. Parliament will not give up without a fight the right for it to be used as the usual and regular course of action for most defendants. If we have to fight the Government, we will.

Vera Baird (Labour, Redcar)

Many speeches have been made during the passage of the Bill about the importance of jury trial as a principle. My right hon. Friend the Home Secretary has always said that he values jury trial in principle. It is hugely important in a democracy that the fresh air of public scrutiny is applied to decisions about the guilt or innocence of our fellow citizens.

My concern is primarily about clause 41, which may result in the end of jury trial as we know it. If my right hon. Friend does value that precious right, as he says, will he think further about that provision, which may undermine it? It could also be undermined by people who do not value it as he does or by sheer force of circumstance if clause 41 is brought into force. The new right for the defendant to opt for trial either by jury or by judge will inevitably be abused. For instance, in the north-east, it is well known that some judges are liberal and soft and that others are harsh. I have said so many times before, but if anybody asked me whether I would be tried by judge alone, I would say, "Which judge?" There will be forum shopping by defendants of the worst imaginable kind. Local witnesses waiting to go to court to give evidence will know that a defendant has opted at the last minute for judge X because he is soft, or has opted for a jury trial because judge Y, who is on the list of judges, is hard. That will rightly scandalise the public, victims and witnesses.

The Bill includes a provision specifying that there must be early exercise of the option, but it is unenforceable. Common sense dictates that if someone says that they want a jury trial, but the case comes to court and he decides that he is fine without a jury trial, nobody is going to compel him to go through the lengthier, more complicated and expensive process of empanelling a jury just because he asked for that at an earlier stage.

David Blunkett (Labour, Sheffield, Brightside)

I am very sympathetic to my hon. and learned Friend. I understand from the previous contribution that she rightly made in the House, how strongly she feels. However, is it her proposition now that that is not possible when people are faced with a magistrates court or being able to opt for jury trial—that at that point that option is fixed and is the one that prevails, whether they want to go back to a magistrates court or not?

Vera Baird (Labour, Redcar)

It is very difficult to envisage a situation such as the one that I set out. The defendant may say, "All right, six months ago, I thought I needed a jury to try my case. I now realise that the judges here are all absolutely fine and fair and I do not need to put you through the extra expense, the extra complexity and a lengthier trial, so I do not want a jury trial." Is it seriously suggested that the judge should force him against his will to have a jury trial, when it will take a good deal longer and cost a good deal more? Of course not. The judge will say, "All right, if no one wants a jury trial here, no one need have one here."

In practice, therefore, the right will be capable of being exercised at the end. Of course, if it is going to be exercised that way at the end, it is going to be exercised the other way at the end, if it is wanted, as well. There will be no possibility of excluding forum shopping. It is an appalling prospect and will bring the criminal justice system into disrepute. The jury system will be a tool to be used by clever criminals. Very soon, not only the Home Secretary but I and many others will say, "This has to stop. The system cannot be abused like that."

What will happen then? Will we go back to everyone having a compulsory jury trial? Of course not. By then, it will be clear that trial by judge alone can be quicker, slicker, more efficient and cheaper, so why wipe out the right to trial by judge alone? What will happen is that the right to decide whether a trial is by judge alone or by jury will be moved to the judge, and that will be a nail in the coffin of the right to jury trial. It will be at the judge's discretion.

Of course, the point I have just made—that non-jury trial is bound to be cheaper, quicker and more efficient than jury trial— will in itself be a nail in the coffin of jury trial. A robbery trial in court one at the Old Bailey will be carried out in two weeks by a judge, whereas, a robbery trial involving a very similar case in court two at the Old Bailey will be carried out over six weeks by a jury. Perhaps the man who had the two-week jury trial will be acquitted. The argument will be obvious. Why on earth should we allow defendants to have six weeks' worth of legal aid for these dreadful lawyers when they could perfectly fairly be tried in two weeks by a judge? Again, that argument will start to militate against jury trial.

Edward Garnier (Conservative, Harborough)

May I reinforce the hon. and learned Lady's point about judicial pressure in due course to encourage judge-alone criminal trials? In the civil field in which I work, defamation, there is still a right to jury trial, but the judge is given discretion to take it out of the hands of the jury and to try it himself, if he thinks—the wording almost reflects the wording in the Bill—that the case is going to be very complicated or take too long. However, increasingly, judges will begin proceedings by saying, "Do you not think that it would be better for all concerned if we just dispensed with the jury?" That is before we have even got into deciding whether it will be a complicated trial. The pressure will be on the parties to the trial to accede to the judicial request, because the judge will be under pressure from the management—that is to say, the Lord Chancellor's Department—to keep the through-put of trials going at a speedy rate. The Treasury pressure on the judge will be to keep the process going as quickly as possible. That is why the hon. and learned Lady is right to highlight that point.

Vera Baird (Labour, Redcar)

I am grateful for that intervention. If somebody is acquitted in a couple of weeks, instead of being convicted after spending six weeks in front of a jury, people will start to say, "What's good enough for defendant X—being tried and acquitted by a judge—must be good enough for defendant Y. Why should we allow them that option?" As has just been said, judges are under pressure in terms of turnover and disposal rates. They are almost certain to think that they can try cases just as well as a jury, so why should they not exercise their right to decide that they will do so?

And what about the little cases—those that are just a few pounds' worth—that find their way to the Crown court, in which the defendant wants to opt for trial by jury? They will—[Interruption.] Does my right hon. Friend the Home Secretary want to intervene, or just get in the way? [Interruption.] He is muttering into his beard—he does so, I am sure, with great charm—about district judges already trying without juries, but there is a principle in this country that serious cases go before juries. Although I am talking about the less serious cases that a judge will consider as not meriting jury trial, it is obvious that they constitute the bottom end of the serious stuff that the Crown court deals with. There will be pressure for smaller cases at the bottom end of the Crown court's tariff to be tried by judge alone, and for the option of trial by jury not to exist.

I foresee that, for those two reasons, we shall soon have the forum shopping and abuse that none of us wants, and the obvious cheapness, slickness and efficiency of trial by judge alone. The defendant's right to opt for trial by judge alone will go and will be passed into the hands of the judge, which will be the end of any kind of right to trial by jury. Here, I am expressing a very real fear. I do not intend that my comments should have a querulous sound; rather, they are expressing a serious concern. My right hon. Friend the Home Secretary says that he, too, is concerned about safeguarding the principle of jury trial, but if he wants to do so, he cannot allow it to become optional. Once it becomes optional, the reasons why the option is exercised will bring the principle into disrepute. That is the slippery slope on which we are starting today with clause 41.

David Kidney (Labour, Stafford)

It is fanciful for my hon. and learned Friend to suggest that if some accused can choose a judge-only trial, all of them will. So that we can see whose opinion is right, I should point out that Lord Justice Auld's report commented on the widespread use in other common-law jurisdictions of what he called the "jury waiver"—in other words, the giving up of the right to trial by jury. Is it not true that the jury trial is still strong in all those jurisdictions?

Vera Baird (Labour, Redcar)

I do not seem to have made myself clear—at least to my hon. Friend. In no way did I say that if we give everybody the right to non-jury trial, all will opt for it. I said that the way in which that option is exercised will be subject to criticism, and people will say, "If they're going to exercise the right to jury trial in that way, we will take it away from them and let somebody sensible decide what mode of trial should follow." If my right hon. Friend the Home Secretary is concerned about jury trial, I ask him to consider that that process will inevitably follow from what happens today. I seriously invite him to consider that that is not what he wants. Please reconsider clause 41.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I have just two minutes, so I shall be extraordinarily brief. I want to begin by telling the Home Secretary something that is not palatable to many Members of this House: that we should listen with respect to what is being said in the other place about part 7. The plain truth is that we in this House will be having whipped votes on this issue, and that what we are hearing today is the Home Office's view. What we heard in the other place was a largely free and unconstrained debate, with views being expressed by people who have a great deal of knowledge on the subject—we should therefore listen with respect to what they say.

Like the hon. and learned Member for Redcar (Vera Baird), I start from the presumption that jury trials are desirable: they have, as my hon. Friend the Member for Beaconsfield (Mr. Grieve) said, very wide public acceptability, and they tend to give a more just result—partly because jurors are better judges of fact than are judges, many of whom have spent too long in the criminal courts hearing too many lies.

On clause 41, I absolutely agree with the hon. and learned Member for Redcar that we are creating a presumption against jury trials. That will be the thin end of the wedge, and ultimately they will be discontinued on that basis alone. As the hon. Member for Southwark, North and Bermondsey (Simon Hughes) said, many individuals will try to get a judge-only trial because they think that it suits them. Moreover, certain classes of trial will come before judges only, and that will displease the public at large.

As regards long and complex trials—this relates to clause 42—the single issue is normally one of dishonesty—

Clause 42 — Applications by Prosecution for Certain Complex or Lengthy Trials to be Conducted without Jury

Clause 43 — Application by Prosecution for Trial to be Conducted without Jury where Danger of Jury Tampering

Clause 4 — Use of Telephones for Review of Police Detention

Caroline Flint (Labour, Don Valley)

I beg to move, That this House disagrees with the Lords in the said amendment.

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

With this it will be convenient to take Lords amendment No. 4 and the Government motion to disagree thereto, and Lords amendment No. 8 and the Government motion to disagree thereto.

Caroline Flint (Labour, Don Valley)

Deleting clause 4 places an unnecessary restriction on a practical and efficient way of overcoming some of the resource and logistical problems of arranging reviews while people are held in detention. The Police and Criminal Evidence Act 1984 allows a range of safeguards and protections for a person in custody, including access to legal and medical advice, health care, recognised meal and refreshment breaks and, when appropriate, access to a suitable adult.

A key factor in ensuring that the suspect's rights are protected lies in the further safeguard of the detention review process and the role of the review officer. Reviews of detention must be carried out frequently by an officer of at least the rank of inspector. The clause will maintain the application of those important safeguards but will broaden the capacity so that telephone reviews can be conducted when they are considered the most practical and efficient approach.

The provision will provide the review officer with straightforward alternatives of reviewing in person or by telephone. The choices continue to exist. When reviewing, the officer must consider each case individually and determine the most appropriate way in which to conduct the review, taking full account of the needs of the person in custody. The review officer will provide the opportunity for telephone representations by the detained person, the detainee's solicitor if available at the time and, if relevant, an appropriate adult, if available.

We have made it clear in guidance that specific consideration must be given in the case of vulnerable suspects, including juveniles. We have developed that guidance with the valued support of key stakeholders, including the coalition of children's charities, which comprises the Children's Society, Barnardo's, ChildLine, National Children's Bureau, National Children's Home, the National Society for the Prevention of Cruelty to Children, the National Council of Voluntary Child Care Organisations and the National Association for the Care and Resettlement of Offenders. The clause follows the recommendation of the joint Home Office and Cabinet Office review of PACE that allowing the use of telephone reviews in a wider set of circumstances would better serve the needs of the police and ensure the rights of suspects. It will help the police overcome the resource and logistical problems of arranging reviews, especially at night, and will save a great deal of valuable inspectors' time, particularly in terms of travelling to conduct reviews in remote rural areas.

On Lords amendment No. 4, at present the law allows the police the discretion to retain fingerprints and non-intimate samples taken by them during the investigation of an offence from persons suspected of having committed a recordable offence. I am sure that my hon. Friends are aware that under PACE 1984, as amended, the police have the discretion to retain that information in respect of persons who have been charged with an offence, irrespective of whether that person is subsequently convicted of the offence. That important provision—I shall outline shortly just how important that power has proved to be—was introduced by an amendment to PACE in the Criminal Justice and Police Act 2001 in May of that year. Those amendments were subjected to close parliamentary scrutiny and Parliament concluded that the changes were compatible with human rights legislation.

Lords amendment No. 4 would not only require the police to destroy the fingerprints and samples taken from persons arrested for a recordable offence and not subsequently charged, but would put the law back to the position it was in before the changes made in 2001.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Will the Minister deal with an argument that the Government have never yet adequately answered? Why are people who are arrested and then released, without any charge or conviction, automatically put in a different category from people who are never arrested by the authorities? Why should somebody have their DNA or fingerprints kept by the state when they are just as innocent and free from convictions as anybody else?

Caroline Flint (Labour, Don Valley)

If the hon. Gentleman will allow me, I will expand on that point during my contribution. The danger is that not accepting the present situation would have an impact on what we want to achieve, which, as he rightly says, is the ability to retain fingerprints and DNA data from those who are arrested. It would also put the law back to the position it was in before the changes made in 2001. There was extensive discussion about whether it is right to retain information when someone has been charged but not convicted.

I remind hon. Members that the changes were made as a result of two cases, one involving a murder and the other a rape, in which information held on the national DNA database linked the offenders to those offences. The Court of Appeal held that that information could not be used because, as the law then stood, it should have been destroyed when the offenders had been acquitted of the earlier offences for which the samples had originally been taken. The Court of Appeal therefore held that the evidence linking the offenders to the rape and the murder was inadmissible. Although the decision of the Court of Appeal was later overturned on appeal, Parliament decided, as the House of Lords had urged, to make the law clear and allow the police the discretion to retain all fingerprints and samples lawfully taken in the course of an investigation. As I said earlier, that change to the law has proved extremely important.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Will the Minister give way?

Caroline Flint (Labour, Don Valley)

I would like to expand on this point. If the hon. Gentleman is going to repeat the same question, I would like a chance to answer it first.

The change to the law has proved extremely important, and will be important in relation to the retention of data following arrest. The custodian of the national DNA database tells us that there are approximately 103,000 DNA profiles on the database that would previously have been removed under PACE. Of those, approximately 4,600 profiles of individuals have been linked with crime scene stains involving 4,760 offences. Those offences include 26 murders, 15 attempted murders, 27 rapes, 13 sexual offences, 14 aggravated burglaries and six offences related to the supply of controlled drugs. All those offences were committed after the person had been acquitted of an earlier charge. We do not want to change the law in that respect, which is what the Lords amendment, as it stands, would do.

The Lords amendment would seriously inhibit the investigation, detection and prevention of crime. It might also delay the elimination of an individual from suspicion of having committed an offence, because DNA and fingerprints can equally be used to help the police to determine who did not commit the offence under investigation.

Lynne Jones (Labour, Birmingham, Selly Oak)

Is not my hon. Friend arguing that DNA samples from every individual ought to be taken? Otherwise, she is saying that people who have been arrested and had their fingerprints or DNA samples retained are more likely to be guilty of a crime than people who have not been arrested and had their samples taken. What evidence is there for that? Surely the Government ought to be legislating to compile a national database for everybody's DNA.

Caroline Flint (Labour, Don Valley)

No, we are not moving to a national database. Fortunately, in the UK it is still a minority of people who commit offences and therefore a minority who are arrested.

We understand the concerns about the retention of samples and fingerprints taken from individuals who have been arrested and not charged, or charged and not convicted, but we believe that retaining that information is proportionate to the benefits of society and the prevention and detection of crime. Law-abiding citizens have no reason to be concerned about their fingerprints and samples being retained on the database. The law is already quite clear that their use is restricted to the prevention and detection of crime, the investigation of an offence or the conduct of a prosecution. In fact, arresting somebody is open to guidelines and procedures on the grounds for arrest.

To those who say that we are creating a third class of person, neither innocent nor convicted but merely "under suspicion", I say that that is not the case. Where taking and retaining fingerprints or DNA samples is the norm, there is no stigma attached to the individual concerned and we would say no discrimination. These proposals are about having the means by which we can retain data not only to consider somebody if they have taken part in an offence, but to rule them out of offences that have been carried out.

In relation to amendment No. 8, as originally drafted, clause 12 provided for the Secretary of State to alter by order made by statutory instrument the minimum age at which persons in police detention may be tested for specified class A drugs—crack, heroin and cocaine. The clause also provided for the order to be subject to the affirmative resolution procedure. Such delegation and scrutiny were considered appropriate by the Regulatory Reform Committee, as reported in its 21st report. Noble Lords in the other place expressed particular concern that the clause did not provide a requirement for public consultation. I hope to assure the House that there will be sufficient safeguards before any change is made to the minimum age and that clause 12(3)(c) should be reinstated.

Those provisions are to be introduced in limited areas on a pilot basis initially. We maintain that it is important that the Secretary of State should have the ability to change the minimum age, either up or down, should evidence emerge to suggest either that we would be justified in extending the clause to include persons under 14 or, for that matter, that testing those aged 14 and over should be increased.

Reinsertion of clause 12(3)(c) would enable us to take action, as appropriate, in the light of any such evidence from the pilot evaluation findings or from other relevant research evidence. We believe that that flexibility is available in the case of pre-sentence drug testing, to which noble Lords in another place did not object. I can assure my hon. Friends that, as we indicated in the memorandum submitted to the Regulatory Reform Committee, it is our intention that any decision to change the minimum age for drug testing will be made only after full consideration of all the available evidence and will take account of the views of relevant bodies. We also believe that it is sensible for the clause to be entirely consistent in this respect with that on pre-sentence drug testing.

In all the areas that I have outlined, the proposals are about more effective policing to deal with situations that the police have to face in their day-to-day responsibilities. In some areas, that involves cutting bureaucracy; in others, it involves ensuring that we have information available.

Graham Allen (Labour, Nottingham North)

Will my hon. Friend congratulate those in the police, not least in the Nottinghamshire force, on making the proposal in Committee that there should be testing at 14? Indeed, that will now be in the Bill. Will she also consider having an age limit that goes down to 10, which, although it sounds draconian, would stop some 10-year-olds who are class A drug users—crack cocaine users—and get to them before they develop a habit that could last the rest of their lives?

Caroline Flint (Labour, Don Valley)

I thank my hon. Friend for that contribution. It is a reality that we have to face up to that there are young people who are using class A drugs. The evidence suggests that that is more prevalent among those aged 14 and above, which is why we want the testing, but having the opportunity to revise that figure up or down is important so that we can take action as soon as possible to get treatment to those young people and get them off the drugs. We disagree with the amendments.

Humfrey Malins (Conservative, Woking)

I think the House will agree that when the Opposition parties have less than a minute to discuss such important issues the situation is shambolic, and a real reflection on the way of parliamentary life nowadays.

I have 20 seconds in which to discuss each group of amendments. We all agree that the issue of personal liberty is fundamental, and that an attempt should always be made to review detention, in person if possible. We understand that a balance must be struck between review of detention in person and the freeing of officers for operational duties, but I hope to goodness that reviews by telephone will be not the norm but a rarity, and that every effort will be made to ensure that the reviews are conducted by a very senior officer in person—or, second best, by means of a video link. I am glad that that is being introduced; it is working very well in the courts in which I operate. The need to protect younger and vulnerable defendants is very important.

It being two hours and forty-five minutes after the commencement of proceedings, Mr. Deputy Speaker proceeded to put forthwith the Questions necessary for the disposal of business to be concluded at that hour, pursuant to Order [this day].

Lords amendment No.2 disagreed to.

Clause 78 — Authorisation of Investigations

Paul Goggins (Labour, Wythenshawe and Sale East)

I beg to move, That this House disagrees with the Lords in the said amendment.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

With this it will be convenient to take Lords amendment No. 101 and Government motion to disagree thereto.

Paul Goggins (Labour, Wythenshawe and Sale East)

One of the important safeguards that the Bill provides in respect of retrials for serious offences is that the personal consent of the Director of Public Prosecutions will be needed to authorise the taking of certain steps by the police to reinvestigate a person previously acquitted of a qualifying offence. The Bill as originally drafted provides that the DPP will not be able to give his consent to reopen an investigation unless he considers that there is, or would be, new evidence as a result of a reinvestigation, and that a reinvestigation would be in the public interest.

To that requirement the Lords wish to add a further requirement that the DPP should seek the leave of a Crown court judge before consenting to a reinvestigation. I consider this amendment unnecessary. The DPP is sufficiently senior and experienced to take a decision on whether to allow the police, in reopening an investigation into an acquitted person, to take the steps set out in subsection (3).

Douglas Hogg (Conservative, Sleaford and North Hykeham)

But one question is, of course, whether it is in the public interest for the investigation to proceed. Surely the DPP is not an independent judge, in the same way as a judicial figure.

Paul Goggins (Labour, Wythenshawe and Sale East)

But perhaps the most important point about independence is that the DPP is sufficiently independent of the police, in terms of his ability to review their request for a reinvestigation. Independence is required, but independence from the police is most important.

The Government consider that the DPP's taking that decision provides the necessary safeguard to ensure that the acquitted person is not being harassed by the police—an issue that Members raised in previous debates. At the reinvestigation stage, it is quite proper for the decision to reinvestigate to be taken by the prosecuting authorities rather than by the courts. Involving a Crown court judge in proceedings at that stage would also make the process more cumbersome. Many layers of safeguards are already built into the exercising of the powers listed in subsection (3). I do not believe that requiring the DPP to secure the leave of a Crown court judge is necessary before a reinvestigation can proceed.

The safeguards on reinvestigation need also to be seen in context. Before an application for a retrial can actually be made, the DPP's consent is required again. He must be satisfied at that stage that there is new and compelling evidence, and that it is in the public interest for the application to be made. The Court of Appeal then determines that application, and it is at that stage that a judicial decision is properly required. As such, I invite the House to disagree to the amendment.

Dominic Grieve (Conservative, Beaconsfield)

This brings us back to a discussion that we had in Committee a very long time ago, in which we told the Minister that in our view, having judicial scrutiny before allowing the process to take place would be an extra and worthwhile safeguard. Such scrutiny would have been an important safeguard in precisely ensuring, as has been suggested, that the public interest and above all fairness, which the judiciary has a special role in ensuring, be taken fully into account. Of course, this process could be unfair and very onerous. It is therefore interesting to note that when the Bill went to the other place, the Lords seemed also to have been exercised and anxious about this issue.

The Minister will be reassured to learn that, because this is a small matter, I do not intend to divide the House on it. If the Government wish to remove the amendment, on their heads be it, but I remain mystified as to why they did not accept it a long time ago. My view has always been that it would provide an important safeguard that would reassure the public and those who will be put through this process—including those who may, of course, eventually be acquitted—that it will be gone through only for good reasons, and that there will be judicial scrutiny throughout; otherwise, the danger is that, even allowing for the independence of the DPP, the perception will be that an individual is being put through an administrative process that is deeply damaging to his liberties, and which involves no proper oversight.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I am not one to impugn the DPP or to criticise unnecessarily, but we must not overemphasise his independence—he is head of the prosecution service.

Dominic Grieve (Conservative, Beaconsfield)

My right hon. and learned Friend is right. That is why we tried to put the safeguard into the Bill at a very early stage. It was reading the Bill late at night—not some lobby group—that led me to believe that the amendment would be valuable. I remained puzzled throughout our proceedings that the Government would not accept a proposal that struck me as being so modest and so sensible. The ways of government are sometimes mysterious. I certainly do not wish to deny the Government their Bill on this one issue, so I shall, with some reluctance, keep quiet about it hereafter. I do not know whether their lordships will do likewise—that is a matter for them. I do, however, regret the Government's unnecessary removal of a safeguard that would have been of value.

David Heath (Liberal Democrat, Somerton and Frome)

I share the concerns expressed by the hon. Member for Beaconsfield (Mr. Grieve). I suspect that Liberal Democrat Members may be made of slightly sterner stuff on this issue. We believe that the safeguard is important, if small. I entirely agree with the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) that whatever personal merits we see in the Director of Public Prosecutions, and although he is a senior figure who is well capable of taking such decisions, we must recognise that he has one impediment that cannot be avoided—he is part of the prosecution system. As we are dealing with the rights of the individual not to be harassed or otherwise put to inconvenience unnecessarily by an over-mighty prosecution system, the intervention of the judiciary at that point is entirely appropriate.

In previous debates, the Government advanced the argument that judicial review at a later stage is capable of remedying any improper decision on the part of the DPP. That is even more cumbersome than the suggestion in the amendment, and has the considerable disbenefit of being too late to do the job properly. Given that this is an important departure from our previous practice, we want to ensure that the greatest possible safeguards are built into the system. It would be a very small step for the DPP to go to a judge to seek agreement by an ex parte application for an investigation or reinvestigation to proceed.

The noble Lady who speaks for Conservative Members in another place was absolutely right in her arguments, and I have heard nothing from the Minister this evening that persuades me otherwise. Until we hear a cogent argument to the contrary, we should support our noble Friends and others in another place who insisted on the amendment, and await the conclusion later this week.

Graham Allen (Labour, Nottingham North)

My hon. Friend the Minister will note that Opposition Front Benchers gave no welcome in principle to this improvement to our law. If it is brought in, I hope that he will not be backward in coming forward in reminding them of that in a year or so, when serious cases such as those that we discussed in Committee—for example, involving child killers who later confess to cellmates—have been brought before the law for retrial.

Dominic Grieve (Conservative, Beaconsfield)

I find that comment rather ungracious, especially in view of the Opposition's participation in the progress of the Bill. We have accepted throughout that there are grounds for allowing retrial for certain grave offences. We have worked with the Government to achieve a satisfactory outcome, and that has largely been achieved. I am grateful to the Government for that and I hope that this measure makes some small improvement to the criminal justice system. However, given the shortness of time available, I thought that I would concentrate on the issue before the House.

Graham Allen (Labour, Nottingham North)

I am grateful that my intervention has prompted the Opposition to put the record straight.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

In my opinion, the Lords got this matter about right. The hon. Member for Somerton and Frome (Mr. Heath) reminded the House that retrials are a major departure from established principle and practice. We have accepted that they are justified in a limited number of cases, but we must face the fact that the process of a retrial can be extremely oppressive for defendants. My hon. Friend the Member for Beaconsfield (Mr. Grieve) rightly pointed out that some of those offenders will be acquitted, but the process of retrial could involve much expense, trouble, concern and anxiety for people who were acquitted at the first trial. Therefore, we should be chary of embarking on a process that could give rise to those consequences.

I do not wish to be unduly critical of the post of Director of Public Prosecution. Indeed, I have no justification for being so, but that does not alter the fact that he is head of the Crown Prosecution Service. As such, the DPP has a vested interest in pressing forward with prosecutions, because that is his function. I am concerned that a director may give his or her consent to a retrial in circumstances that do not wholly warrant it, in part because of the internal pressures in the CPS to secure convictions. The Lords have put in a filter, whereby the application by the DPP has to be considered by an independent judicial figure. That is a filter, but it also drives the DPP to consider carefully the nature of the application that he is about to make and whether or not the evidence on which the application will rest is sufficient to satisfy the criteria. Not only is the provision a filter in itself, but it will also drive the DPP to make applications only in appropriate cases.

I hope that the Lords stick by this measure. If the matter is put to a Division, I shall vote to support the Lords. I know that my hon. Friend the Member for Beaconsfield will not press it to a Division, but others may, and they will have my support.

Paul Goggins (Labour, Wythenshawe and Sale East)

I am grateful to my hon. Friend the Member for Nottingham, North (Mr. Allen) for reminding the House of the wider context of our somewhat narrow discussion, which is that in future in those small number of cases that he mentioned justice will be delivered rather than denied, as it would have been in the past. I apologise to the hon. Member for Somerton and Frome (Mr. Heath) for my lack of cogency, but I see the issue as straightforward. The Bill includes safeguards in relation to this matter. Reinvestigation will require the personal approval of the DPP, who is a senior and experienced individual. He or she is independent from the police, and the Court of Appeal must give its approval if there is to be a retrial.

Graham Allen (Labour, Nottingham North)

Any trial is an onerous experience for a defendant, but does my hon. Friend agree that we should not forget how onerous it can be for a victim's family when new and compelling evidence comes forward and they are not allowed to bring the offender to book, however likely it is that that person is guilty?

Paul Goggins (Labour, Wythenshawe and Sale East)

As my hon. Friend knows—he was on the Committee and is assiduous in following up such issues—the Bill is about redressing the imbalance in our system in favour of victims. That is a theme that the Home Office is pursuing on several fronts, not least through this Bill.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Member for Nottingham, North made a potent point, but it is irrelevant to the matter that we are considering, which is simply whether judicial approval should be given for the reopening of an investigation. That does not affect the conduct of the reinvestigation—whatever the hon. Gentleman may blather from a sedentary position.

Paul Goggins (Labour, Wythenshawe and Sale East)

The point made by my hon. Friend the Member for Nottingham, North is important, but I agree with the hon. Member for Somerton and Frome that this is a straightforward matter. I ask the House to disagree with the Lords in their amendment No. 100.

New Clause

Paul Goggins (Labour, Wythenshawe and Sale East)

I beg to move, That this House disagrees with the Lords in the said amendment.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

With this it will be convenient to discuss the following: Lords amendment No. 115 and the Government motion to disagree thereto, Government amendment (a) to words restored; Lords amendment No. 116 and the Government motion to disagree thereto; Lords amendment No. 117 and the Government motion to disagree thereto; Lords amendment No. 118 and the Government motion to disagree thereto; Lords amendment No. 119 and the Government motion to disagree thereto; Lords amendment No. 120 and the Government motion to disagree thereto; Lords amendment No. 121 and the Government motion to disagree thereto; Lords amendment No. 122 and the Government motion to disagree thereto; Lords amendment No. 123 and the Government motion to disagree thereto; Lords amendment No. 124 and the Government motion to disagree thereto, Government amendment (a) to words restored; Lords amendment No. 125 and the Government motion to disagree thereto; Lords amendment No. 126 and the Government motion to disagree thereto, Government amendment (a) to words restored; Lords amendment No. 127 and the Government motion to disagree thereto; Lords amendment No. 128 and the Government motion to disagree thereto; Lords amendment No. 129 and the Government motion to disagree thereto, Government amendments (a) to (e) to words restored; Lords amendment No. 130 and the Government motion to disagree thereto, Government amendments (a) to (d) to words restored; Lords amendment No. 131and the Government motion to disagree thereto; Lords amendment No. 132 and the Government motion to disagree thereto, Government amendment (a) to words restored; Lords amendments Nos. 133 to 136.

Paul Goggins (Labour, Wythenshawe and Sale East)

We now come to the part of the Bill that deals with the admissibility of evidence, specifically evidence of bad character and hearsay evidence. These are highly important provisions.

Trials should be a search for the truth and the rules of evidence should help to ensure that that is the case. The present law in both of those areas has, however, been roundly criticised—from the royal commission on criminal justice in 1993 to the Law Commission's reports in 1997 and 2001 and Lord Justice Auld's review of the criminal courts. There is a wide consensus in favour of reform.

David Kidney (Labour, Stafford)

My hon. Friend mentions the Law Commission. The Lords amendment on bad character would import wholesale the Law Commission's draft legislation on bad character, which seeks to clarify and modernise the law. It is authoritative because it is based on the Law Commission's investigation, report and draft Bill. Why does my hon. Friend not just take what he has got and accept the Lords amendment?

Paul Goggins (Labour, Wythenshawe and Sale East)

I shall explain why we are not doing that. We give credit to the Law Commission for the work that it has done, but argue that we want to go further than it has recommended. I hope that during the next few minutes I shall be able to apprise my hon. Friend of why we want to go further than the Law Commission's initial recommendations.

This part of the Bill is intended to provide a new statutory framework for the admission of those two types of evidence. Amendments adopted in the other place would, however, reduce the efficacy of the reform that the Government propose. I shall deal first with the evidence of bad character. Amendments adopted by the other place would replace the Government's proposals with almost exactly the scheme drafted by the Law Commission, as my hon. Friend pointed out. We agree with much in that scheme. As my noble Friend the Minister of State made clear in the other place, the Government's proposals are based on the Law Commission's work and adopt many of its recommendations. However, we do not believe that those go far enough in rebalancing the system to ensure that the rules promote the admission of relevant evidence, subject, of course, to considerations of fairness. Without such rebalancing, courts and juries will continue to have withheld from them important evidence that could give them the full picture of a particular case.

In our view, a different approach is required—one of inclusion, which makes it clear that relevant evidence is admissible. It will of course be for the prosecution to demonstrate in the course of proceedings how the evidence relates to the particular case.

Dominic Grieve (Conservative, Beaconsfield)

Let us take just one example: previous convictions. It is accepted—I think that the Government would accept this—that if someone has a previous conviction, that in itself cannot show that they are guilty of anything, unless there is a link between the previous conviction and the crime for which they are currently being tried. That is the classic example that shows why such evidence should be excluded unless there is a reason to include it—not the other way around. That is what the Law Commission wanted to do, but for some reason the Government do not want to do that.

Paul Goggins (Labour, Wythenshawe and Sale East)

It is because we are persuaded of the need for an inclusive approach. We are making the presumption that that kind of information is admissible as evidence. Of course, the defence has the opportunity to argue that such evidence is not relevant, and it could argue that it was more prejudicial than probative in a particular case, so there are safeguards in place—but the information referred to by the hon. Gentleman in his example may be relevant in a particular case.

We have always said that we will listen to constructive suggestions for change to ensure that our proposals are cast in the best possible form. We are aware that a number of concerns have been expressed over the way in which the Bill's scheme will work in practice and we are prepared to make improvements to reflect those. I am therefore moving several amendments to make three changes. The first concerns the definition of evidence of bad character. The definition that the Government originally proposed was that recommended by the Law Commission, but concern was expressed that that was too vague and would enable the admission of evidence that was too remote. We recognise that it is important to be as clear and precise as possible, so we have redrafted the definition to tighten the wording while maintaining a fairly wide ambit.

The second change is to ensure that the defendant has clear notice of the prosecution's intention to rely on evidence of his bad character. That reflects a concern that a more inclusionary approach would lead to the admission of evidence where it was not appropriate or safe for it to be heard. That is not our intention. We believe that the system needs to be rebalanced to ensure that relevant evidence is admitted unless good reason is shown for excluding it, but we recognise that there must be a clear opportunity for a defendant to apply to exclude the evidence and for that issue to be decided by the court. That will be facilitated by having a formal requirement of notice.

The third change relates to the admissibility of juvenile convictions in adult proceedings. At present, no mention may be made of those convictions. That is too restrictive an approach and our proposals will lift that absolute prohibition, making such evidence admissible subject to the general scheme of the Bill. Concern has been expressed that that goes too far, that a person's record at that age will not have the relevance of later offending, and that particular considerations apply in the context of juvenile offending. We have some sympathy with the idea that such admission should take place on a more restricted basis, so we propose that those convictions should be admissible only where the interests of justice specifically require it. We intend that test to exclude a sporadic record for minor offences while ensuring that continual or persistent offending or convictions for very serious offences are capable of admission.

Hon. Members will notice that there are a number of other amendments in the name of my right hon. Friend the Home Secretary.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

To what extent has the Minister addressed the following issue? He will understand that under existing law, a defendant will often refrain from attacking the character of a Crown witness for fear of his own character being disclosed. Under the Government's proposals, the presumption, broadly speaking, seems to be that the bad character of the defendant can be disclosed in any event. That being so, the restraint that operates at present on defendants not to attack the character of Crown witnesses will disappear.

Paul Goggins (Labour, Wythenshawe and Sale East)

I am becoming more familiar with some of those issues by the hour. I understand that the right hon. and learned Gentleman refers to "the shield". We believe that the shield should not be available with impunity to the defendant, and that he should not be allowed to make assertions without some accountability and responsibility for them.

John Denham (Labour, Southampton, Itchen)

On the question of bad character, does my hon. Friend agree that of all the provisions in the Bill that have caused concern—I share many of those concerns—this is where the risk of something going wrong is probably greatest, in terms of the import of particular evidence being misunderstood by the jury in the course of the trial? The case for moving in this direction is good, but how do the Government propose to examine how the law will work in operation to see whether any of the concerns that have been expressed are justified or whether it is working well?

Paul Goggins (Labour, Wythenshawe and Sale East)

It is good practice for the Government to examine the impact of their legislation in any sphere. Earlier today we discussed the Sexual Offences Bill, whose implementation we shall need to monitor carefully. The same will be true of this Bill. I accept what my right hon. Friend says about some of the dangers. We acknowledge that there would be dangers if the provisions were unrestrained, but I have already referred to the requirement for notice to be given and made the point that the defence has the opportunity, without the jury in the courtroom, to argue that a particular piece of evidence that the prosecution wants to bring forward is not relevant or is more prejudicial than probative. I think that we have put in place safeguards that will reassure my right hon. Friend, but I certainly note his concerns.

On hearsay evidence, the relevant amendment that we are discussing would remove clause 107. That clause is a key part of the new statutory scheme. It provides an overarching statement of the circumstances in which hearsay evidence is admissible, setting the context for the rest of that part of Bill. Those who opposed the clause in the other place did so for two very different reasons.

First, objections were raised in general to the scheme proposed in the Bill, to which clause 107 provides the gateway. We believe that those objections are misplaced. The Bill provides a clear scheme based on recognised and established categories of admissibility, but consolidates the current rules and restates them comprehensively and coherently. As the House will know, the Lord Chief Justice has suggested that something simpler is needed, akin to the civil rules of evidence. We have given that careful consideration, but do not believe that a complete relaxation of the hearsay rule, as in civil proceedings, would be appropriate for criminal cases where different concerns, such as the fairness of the proceedings, take precedence. In our view, it is important to provide a clear structure for the admission of hearsay evidence, and we consider that the best framework is based on clear and accepted categories of admissibility, with residual discretion to operate in the interests of justice.

That brings me to the second concern that has been expressed—the extent to which the courts should have discretion to admit evidence that does not fall within one of the recognised categories. That is dealt with in clause 107(1)(d). The Government remain firmly of the view that that is an important aspect of the scheme. Certainly, it was considered necessary by the Law Commission, which recommended a provision along those lines. It might be helpful if I give an example of why that sort of discretion is needed.

Let us take a case where a man is accused of murdering his ex-wife. His defence is that he was 200 miles away at the time of her death. He has only one alibi—a neighbour's seven-year-old child saw him when he popped out to walk his dog. The child gives a statement to the police the next day confirming the man's presence at home. She remembers the incident so well because he stopped to let her pet the dog. But by the time of the trial, she cannot remember anything about it at all. The jury cannot be told about her statement because it would be hearsay. Juries in other countries, such as Canada, are trusted to hear that type of evidence, so why can they not be trusted to do so in this country?

That example is not far-fetched—the Court of Appeal dealt with a similar problem in the case of Thomas, when it upheld the judge's ruling that the statement was inadmissible hearsay, but it allowed the appeal as a conviction obtained in such circumstances could not be regarded as safe. That illustrates the need for some form of discretion to admit evidence outside of the categories provided in the Bill.

We have listened carefully to the concerns that have been expressed about whether the discretion in subsection (1)(d) is insufficiently focused. Government amendment (a) to Lords amendment No. 132 will tighten that provision to ensure that evidence can be admitted only where doing so is in the interests of justice. That will allow other out-of-court statements to be used where they are cogent and reliable.

There is a wide consensus in favour of reforming those two areas of the law. This is not about securing convictions at the expense of defendants' rights. Clear safeguards have been built into the scheme to ensure that the burden of proof continues to rest on the prosecution and that trials are conducted fairly. However, this is about ensuring that the rules are clear and facilitate the admission of evidence of previous offending or other misconduct where doing so is appropriate and safe. Our proposals have drawn substantially on the excellent work undertaken by the Law Commission. We consider it important that the original proposals in the Bill, amended as I have outlined, are restored.

Dominic Grieve (Conservative, Beaconsfield)

Perhaps I can start in a conciliatory tone by dealing with hearsay evidence first, because the Government have gone a considerable distance towards meeting the anxieties about hearsay evidence that have been expressed in the House and in another place. There is general agreement that revisiting the hearsay rules is desirable and that there are good reasons why certain forms of hearsay should be admissible in front of a jury, who should be trusted with such information, with the judge providing guidance and explanation about the fact that it is not first-hand evidence and on how to approach it with caution.

As the Minister has rightly explained, the anxiety was that the safeguards were insufficient, particularly in relation to multiple hearsay. Government amendment (a) to Lords amendment No. 132, which relates to clause 107(1)(d), is very small, but it is of considerable significance. It goes a long way to meeting those objections, particularly as the anxiety in respect of subsection (1)(d) was that it clearly implied in its original form, as the Minister will appreciate, that such evidence would be withheld only in the most exceptional circumstances. It is clear that the interests of justice require a judge to weigh that on each occasion without pressure being put on him by the words:

"despite the difficulties there may be in challenging the statement".

It is precisely the difficulties in challenging the statement that make hearsay such a dangerous tool if it is not handled with a great deal of care.

The Government have dealt with that issue, and although I obviously cannot be sure what will happen when the Bill returns, I am satisfied that they have handled this matter correctly. I am grateful to the Minister, even at the eleventh hour and 59 minutes—or perhaps even beyond the twelfth hour—for the fact that we have succeeded in getting that right. The Government have come up with a number of amendments in respect of bad character that appear to be worthy and certainly represent an improvement.

Edward Garnier (Conservative, Harborough)

Perhaps this intervention comes about through slowness in my intellect. I have listened to what the Minister and my hon. Friend have said, but I am still not persuaded by their happy acceptance that Government amendment (a) to Lords amendment No. 132 will do what they think it is intended to do. I wonder whether my hon. Friend will be patient enough to explain to me in a little more detail why he thinks that that Government amendment will do what he hopes it will do.

Dominic Grieve (Conservative, Beaconsfield)

The Government intend that the amendment will provide far greater discretion to exclude such evidence where the judge considers that the interests of justice require that it should not be admitted, so the amendment will beef up judicial discretion. To that extent—I accept to that extent only—it represents a significant improvement, which may go some way to reassure those in the other place who were worried about the issue that the Government have taken their concerns on board.

There are other ways to approach that matter, and my hon. and learned Friend is right to suggest that substantial anxiety was expressed about hearsay evidence in Committee and in the other place. I am certainly not saying that the Government's proposal represents the panacea for all ills, but it is a significant improvement in the light of the previous criticisms. I do not think that I can go beyond that.

Edward Garnier (Conservative, Harborough)

I am most grateful to my hon. Friend for saying that, but I want to try to project myself forward. How would I sum up to a jury—

Graham Allen (Labour, Nottingham North)

Oh no.

Edward Garnier (Conservative, Harborough)

I know that the hon. Gentleman is not terribly interested in the practical consequences of such Bills, but we—[Interruption.] I do not think that he can intervene on an intervention. We have to be sure that the laws that we pass in the House are not only attractive to us as legislators but can be put into practical effect in the law courts. I am sorry for the hon. Gentleman, but the courts are where the law is applied when people are on trial for their liberty. I am not suggesting that my hon. Friend is getting this wrong, but perhaps I am being very dim about it. I just want him to be able to convince me that when we push the provision through into law and he and I have to apply it as either advocates or judges, it will do what we think it will do. I am yet to be convinced that it will do so.

Dominic Grieve (Conservative, Beaconsfield)

My hon. and learned Friend makes a perfectly good point. One of the anxieties consistently expressed about the Bill was that it would make judges' lives more difficult in summing up cases to juries. Some of the issues that will be presented become more complex. Perhaps, in fairness to the Government, I should say that the mischief might not lie entirely with them, because the argument that more hearsay evidence should be admitted is a pressure that has come from a number of areas outside Government as well. Indeed, I think that the Minister alluded to the fact that the Lord Chief Justice has expressed views about the desirability of admitting more hearsay evidence—the Minister may confirm that or correct what I say—and a belief that more hearsay evidence should be available to juries, but balanced, of course, by judicial explanation.

I have no doubt, however, that my hon. and learned Friend is right to suggest that judicial explanation puts more difficulty and pressure on judges and, of course, there is a greater of possibility of getting it wrong. If they get it wrong, there will be appeals. If there are appeals, verdicts may be overturned because judges failed to direct juries properly on the weight to be attached to certain evidence. My hon. and learned Friend is in no sense wrong in asking whether I have got it right. I have to accept that a bit of a wing and a prayer is involved.

Nevertheless, the point made by the Minister about the denial of hearsay evidence sometimes being greatly to the prejudice of a defendant is absolutely correct. It seems to me that that is a correct analysis of the current state of the law. In relation to saying that hearsay should be left squarely as it is, it has in fact been eroded in a number of directions, as my hon. and learned Friend knows, and practising in the criminal courts one notices how it creeps in almost by agreement between the prosecution and the defence with increasing regularity, when it is felt that, in the interests of justice, that should happen.

In response to my hon. and learned Friend, if this had been my Bill—or the Opposition in government's Bill—we would not have started from here. Having started from here, however, and having had some serious discussions with the Minister—we have never had disputes, and we have had remarkably good relations—I accept that the current drafting goes some way towards meeting the objections that have been raised previously. That is the best way that I can leave the matter.

To turn to the nub of the issue, bad character—I want to allow others to speak on the matter—their lordships read the clauses drafted by the Government, which are of some complexity, and concluded that they were seriously flawed. To see that, one needs only to read the debate in the House of Lords, in which the Minister acknowledged that the participation and level of the discussion had been of a very high quality. They were so exercised that they took the original proposals of the Law Commission and—to remind the Minister of what happened—the then Home Secretary, who is now the Leader of the Opposition, being concerned about the issues surrounding bad character, referred the matter to the Law Commission, which spent about four years taking evidence, discussing the issue and trying to come up with a satisfactory outcome that could codify the rules on admissibility of previous convictions and bad character. Having done that, it could try to ensure that a marked reluctance by judges, which is widely accepted, to admit such evidence—because of the absence of guidelines and the fear that it would be overturned on appeal if they did—might be alleviated to an extent and that more of this evidence could come in when it was relevant and helpful to achieving justice. That is why the Law Commission came up with its report. Having done so, it even came up with a model Bill that could be presented to the House and turned into law.

Those in the other place were concerned because the Government had departed radically from the Law Commission proposals. Above all, as the Minister has admitted, that was because the Law Commission always envisaged that the basic rule would normally be that such evidence is excluded unless there is a good reason to include it. The Government's view, for reasons that I have never found satisfactory, is that it should be included unless its exclusion can be justified. That is a very important difference, which, as I tried to take up with the Minister earlier, is nonsense. One has only to consider that that category of evidence is irrelevant unless it has a connection to recognise that saying that it should normally be included turns the whole argument on its head.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Under clause 93(3), the evidence will be admitted unless the defendant can show that

"the admission of the evidence would have such an adverse effect on the fairness".

Once statute provides for the admission of this evidence, however, it is difficult to see how it can ever be struck out under that subsection.

Dominic Grieve (Conservative, Beaconsfield)

My right hon. and learned Friend is right that it is put in a statutory form, although there is a caveat that enables a judge to exclude it in the interests of fairness. To return to my point, why should it be put down in statutory form that some forms of evidence should be admitted when the basic rule, and the obvious common-sense approach, is that it will be largely irrelevant to the matter at issue? It is on that matter that the Government and those in another place have drifted apart. That is why the Bill was amended to include the Law Commission's proposals and nothing but the Law Commission's proposals. If the Minister wants my opinion as to which is the better approach, I will say now, and over and over again, that the Law Commission proposals are infinitely superior to what the Government have done. I also think that they will achieve the Government's desired objective, which is to ensure that, where relevant, evidence is included.

The Law Commission's report is excellent, and the Government's approach is worrying because it seems to me that they have pushed much further than the Law Commission ever envisaged in setting out a principle that a person's past character and previous convictions should automatically go before a court. The distortion to the system of justice that that threatens to introduce, and the risks of miscarriage that are attendant on it, are very serious.

Edward Garnier (Conservative, Harborough)

It is much more serious than we might initially think. I am delighted that the Government are no longer suggesting that they should hold on to clause 90(1)(b), which refers to behaviour that

"might be viewed with disapproval by a reasonable person",

which, for goodness' sake, could mean anything. They now think that they will improve matters with what is on page 3083 of the amendment paper:

"leave out from beginning to 'evidence' in line 2 . . . and insert: 'References in this Chapter to evidence of a person's 'bad character' are to evidence of, or of a disposition towards, misconduct on his part, other than'".

"Misconduct" could be well short of criminal conduct, yet the Government think that that is an improvement on what the other place has removed. I find that extremely worrying, and I wish that the Government would come clean and admit that they want to drive a coach and horses through this aspect of the criminal law and produce very strange results.

Dominic Grieve (Conservative, Beaconsfield)

The Minister will have to answer as to what the Government's intentions are. Certainly, however, the practical consequences of the Government's intentions are an unhappy state of affairs.

To move on, we have always indicated to the Government that we accepted the principle of the Law Commission's recommendations and we were therefore willing to engage in a dialogue with the Government to try to resolve this matter. We have been trying to do that at frequent intervals. We have been helped by some Labour Back Benchers who have highlighted some areas that remain of great concern. I shall touch on two of them. First, at clause 93(1)(d), the dreadful entry remains:

"In criminal proceedings evidence of the defendant's bad character is admissible if, but only if . . . it is evidence of the defendant's conviction for an offence of the same description, or of the same category, as the one with which he is charged".

That is a terrible clause. To say that bad character should be adduced from that in relation to the current trial has been a constant source of anxiety, unless it is important explanatory evidence, but in that instance it is kept totally separate from important explanatory evidence.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

It is worse than that, because there is no requirement that the previous offence should be in any way relevant or probative of the offence with which the defendant is charged at the relevant trial.

Dominic Grieve (Conservative, Beaconsfield)

Yes, indeed—perhaps I expressed myself badly. That is why I returned to the point about it not even having to be important explanatory evidence—important evidence of similar fact, which already happens, or something exceptional that provided a proper link between the previous convictions and the current matter. That is a serious issue.

Edward Garnier (Conservative, Harborough)

My hon. Friend is being very tolerant. Was it suggested in Committee or during other deliberations on the clause that no one should be convicted only on evidence of a previous conviction?

Dominic Grieve (Conservative, Beaconsfield)

Yes, indeed; the Government told us that that would not happen, but it remains an area of anxiety.

I return to clause 96—"'Matter in issue between the defendant and the prosecution'". Subsection (1) says:

"For the purposes of section 93(1)(e)"—

that is the bit that I read to my hon. and learned Friend the Member for Harborough (Mr. Garnier)—

"the matters in issue between the defendant and the prosecution include . . . the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence".

That is a completely circular argument. How can a matter in issue between the defendant and the prosecution, when considering whether a person would burgle a house, be whether the person has a propensity to commit offences of that kind—unless, and this is where my colleagues are right, we are reaching a point at which the Government will tell us that people may be convicted in the future on the basis of propensity alone?

We have been trying to sort out these problems. I noted that when the matter came up in the other place on 4 November, Baroness Scotland of Asthal said:

"We recognise that concerns have been expressed both here and in another place about how the clause operates. We are therefore prepared to look further at the issue to see whether we might achieve our aims in another more acceptable way."—[Official Report, House of Lords, 4 November 2003; Vol. 654, c. 739.]

I was waiting for the Government amendments to come through last night and I expected a radical approach and a response to what the hon. and learned Member for Redcar (Vera Baird) had said about the dreadful clause 93(1)(d). There was silence on that. I accept that the Government have addressed a few issues, with what I accept are more than minor changes, but the real nub of the concerns of one hon. Member after another since the earliest stage of the Bill has not been touched on.

I urge the Government to accept the Law Commission's proposals and find out how they work. If they do not work as the Government intend, because there is a continuing problem that evidence that should be admitted is not admitted, they can say, "Look, we need to do some more here." We are all sensible people who have a pragmatic approach, so I am sure that they would get a sensible response. Failing that, will the Minister and the Government please take on board representations that have been made on these important matters, if they really intend to restore the clauses in such a way? The situation remains unsatisfactory, so I tell the Minister with some regret, because I had hoped that we could resolve the problem sensibly, that we shall vote against the Government's motion to disagree to Lords amendment No. 114.

David Kidney (Labour, Stafford)

I shall speak briefly about bad character. Evidence of bad character has been admissible under Acts of Parliament for more than 100 years. As the hon. Member for Beaconsfield (Mr. Grieve) said, the Law Commission became involved because the application of previous statute law was unsatisfactory from case to case. There is certainly a good argument for reform. We are faced with a choice between the Government's reform and that of the Law Commission, which the hon. Gentleman strongly advocated, as I have done before and shall do today.

My hon. Friend the Minister announced three welcome alterations to the system. First, he announced greater caution when dealing with convictions of juveniles, which is very welcome. Secondly, he gave us the definition of bad character. The hon. Member for Beaconsfield said that the definition was unsatisfactory, but in fairness, the Law Commission had equally great difficulty finding an acceptable definition. I do not think that everyone would dance in the streets about its definition either, but people are prepared to support it. The third announcement was that the Government will require a prosecution intending to admit evidence of bad character to give notice so that a defendant may object and ask the judge to rule that such evidence should not be admitted. I have not seen the text of the amendment that will implement that, but I accept what he said.

Eight categories of evidence were admissible as evidence of bad character in the original clause 93, which the Government wish to restore to the Bill. However, the judge has the power to exclude the evidence on the defendant's objection for only three categories, so no such power applies to five categories. Two of those five categories would be admissible only with the defendant's agreement—if all parties agreed to the evidence being admissible, or if the defendant adduced the evidence. Therefore, there is no power for a defendant to stop evidence being admitted, no matter how unjust his or her legal representatives think that is, under three categories.

That brings us to the great divide on whether the basic rule should be either that evidence is admissible unless there is a reason to object to it, or that it is admissible only if the judge first gives leave for it. The Law Commission is mostly in the second camp, although, to correct the hon. Member for Beaconsfield slightly, it says that there are core issues for which evidence should be admissible without leave.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I support what the hon. Gentleman is saying. Will he make the point, as did my hon. Friend the Member for Beaconsfield, that a draft Bill was attached to the Law Commission's report? The draft Bill was a form of pre-statutory consultation, and its provisions, which form the basis of the Lords amendment, received a wide welcome in the profession.

David Kidney (Labour, Stafford)

I am happy to agree that there was wide consultation on the draft Bill and that many positive responses were made to it. That is one reason why I think that it would be acceptable legislation.

I prefer the Law Commission's formulation, because a judge should give leave for the admission of such evidence in circumstances outside the core situations to ensure that there is a fair trial and a link between bad character and the probative value of the case. The Bill provides for more pre-trial management of a case, such as the defence's requirement to provide more disclosure at an earlier stage, so a judge will intervene at early stages to ensure that evidence is in order. It is simple and convenient to sort out such issues before a trial to allow it to proceed smoothly, so the Law Commission's formulation is the more acceptable of the two.

David Heath (Liberal Democrat, Somerton and Frome)

The subject of the group of amendments is extremely important and has been one of the principal areas of contention during consideration of the Bill. However, that should not have happened, because if the Government had been more conciliatory and had approached the subject more constructively from the start, we could have secured agreement among all parties that there is a need for codification and reform of the present arrangements on bad character because they do not work well—that is common ground among us. We could have reached a satisfactory conclusion for all at an early stage. It is sad that the issue has been a major barrier between the Government and not only the Opposition in the House and the other place but other voices outside the House, because it was entirely unnecessary.

I do not want to repeat what the hon. Member for Beaconsfield (Mr. Grieve) has said about hearsay evidence. We all treat hearsay evidence and its admissibility with much caution because of the inherent dangers of a witness giving a report of what someone else said to them as evidence in a court of law. The problems with that are manifest. There is no way of determining satisfactorily in court that a person said what a witness reported had been said or whether what was reported to have been said was based on truth. Although hearsay evidence can be valuable in some cases, it must be treated with caution.

I agree with the hon. Member for Beaconsfield that the Government's proposals are better than those that we have considered before, but I still have worries, which were amply expressed by the hon. and learned Member for Harborough (Mr. Garnier). I remain to be convinced that the Government have proposed a watertight solution, but it is clear that movement has been made in the direction of the arguments that we put in Committee and on Report and that my noble Friend Lord Thomas of Gresford made in another place. I am content to leave things at that and to see how the measure works in practice. I am clear in my mind, however, that we must monitor it carefully and may have to return to it if the safeguards prove insufficient.

On the more serious issue of bad character evidence, Ministers need to do a better job of persuading us that their judgment is to be preferred to that of the Law Commission, which spent four years looking carefully at the issue, took a great deal of evidence and reasoned its conclusions in a way that satisfied most people who have a professional interest. Many of us think that its proposals were satisfactory for dealing with the current state of the law. For the Minister simply to assert that his approach is better is unlikely to win many friends in this House who are not already persuaded.

It is clear throughout the Law Commission's report that it took great care to consider the result of its proposals. It said:

"If we had taken the approach of recommending that previous convictions should, as a rule, be presented to the fact-finders, however marginally relevant they might be and regardless of how prejudicial they might be, or, conversely, of recommending that they should never be adduced save where it would be an affront to common sense to exclude them, then we might have been able to answer such a question"—

whether it would increase the number of convictions—

"with confidence."

It went on:

"In our view we would simply have been mistaken to take either of these approaches. Their apparent attractive simplicity ignores the complexity and variety of factual situations to which they would have to apply."

That is evidence of the balanced view that the Law Commission took in making its proposals.

Our argument is not complex. The basic premise in British law is of a presumption of innocence. A person on trial for a specific crime should be judged on the basis of the evidence that pertains to that crime, not to previous circumstances, which are irrelevant. That is why we were cautious at an early stage about the definition of bad character. It is clear that the earlier definition was unacceptable. We could all think of people whom many reasonable people might view with disapproval but who do not have a higher propensity to commit criminal offences. The new definition of misconduct is also lax, which worries me.

The big issue relates to the exclusionary approach, favoured by the Law Commission, or the inclusionary approach, favoured by the Government. We differ on how to achieve a result that we share as a common objective. That is a foolish position to be in at this late stage of a protracted and complicated Bill. If we share the same objective, the Law Commission has provided us with an objective way of achieving it. In that case, why on earth are Ministers holding out for their own interpretation of the best way forward? They can adduce no particular evidence of superiority for that approach, which poses clear dangers as identified by the Law Commission in its evidence.

The Law Commission states in paragraph 6.65 of its report:

"Not all evidence of bad character is relevant to the issue of guilt. The admission of irrelevant bad character evidence might not matter if it were not prejudicial; but often it is. It can lead to a person being convicted on inadequate evidence, or where the fact-finders are not in fact sure that the charge has been made out. Therefore, bad character evidence which is not relevant should in our view be excluded as a matter of course, not merely as a matter of discretion."

We agree with that approach, as do many people outside the House. The Minister has amendments from another place that are directly in line with the draft legislation. As I said, we are in the interesting position of having draft legislation prepared by the Law Commission. He wants to remove its recommendations and replace them with a much less satisfactory and less supported idea of the appropriate solution. It is not acceptable.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Does the hon. Gentleman agree that if we were to rely on the Law Commission's language contained in the passage that he just read out, it would enable a defendant who faces evidence of previous convictions to contend that his trial cannot be fair? That brings into play article 6 considerations of human rights legislation.

David Heath (Liberal Democrat, Somerton and Frome)

The right hon. and learned Gentleman is much more expert in such matters than I am. I accept his contention that the sentiment behind the language could form the basis of a submission under human rights legislation. I have no way of knowing whether the words of the Law Commission's report would be held to be relevant, but the sentiment expressed is pertinent to the debate. I suspect it will not be long before such a matter is challenged in the courts. We would all prefer to avoid that, which we can do if we have the bedrock of a group of proposals from the Law Commission on which we can depend. That is why the Liberal Democrats support the opinion of the other place and will continue to reject the Minister's view unless he provides better arguments for what he proposes.

Eric Forth (Conservative, Bromley and Chislehurst)

On a point of order, Mr. Speaker. Given the Government's ridiculous and vicious timetabling of this part of our considerations, do you share my concern that we will almost certainly not reach proper consideration of Lords amendment No. 137, which I characterise as the Bishop of Chester provision, dealing as it does with controversial and sensitive matters? A large number of Christian folk are worried about the measure's implications. Can anything be done at this stage under your good offices, Mr. Speaker, to give us a chance at least to hear what the Minister has to say about the provision so that we can find out what is in the Government's mind and what they intend to do? The issue is sensitive and contemporary. I just hope that something can be done even at this late stage to allow us to deal with it properly.

Michael Martin (Speaker, Glasgow Springburn)

The right hon. Gentleman knows that I serve the House. It has decided on a programme motion and I am bound by its terms.

Vera Baird (Labour, Redcar)

In the unhappy tussle between the Law Commission's proposals and the current proposals in the Bill, there is excellent room for compromise. Is it really critical whether the presumption of bad character is all admissible or all inadmissible so long as it is all within the ambit of clause 93(3), which allows the judge to exercise a decision on whether evidence is admitted or not? In particular, now that the Minister has said that there will be notice of every application to admit previous bad character, everyone has ample opportunity to prepare a case to argue that even if the bad character falls under the categories set out in 93(1)(a) to (h), none the less it should be excluded or included according to subsection (3). It does not matter which way around it is. All it is necessary to do—the Government give nothing away by doing it—is to allow the judge to exercise a decision over paragraphs (c) and (g).

Douglas Hogg (Conservative, Sleaford and North Hykeham)

There may be merit in that approach, but surely it is the business of Parliament to set out the criteria that will enable the judge to determine the question of fairness.

Vera Baird (Labour, Redcar)

I appreciate the point but I believe that the judge would simply make up his mind about any application under clause 93(3). There would be no burden of proof either way; the judge would decide either that the evidence should be admitted or that it was unfair and should be excluded. That has everything to commend it as a compromise course that gives nothing away. My hon. Friend the Under-Secretary and my right hon. Friend the Secretary of State are at pains to exhort us to trust the judges, not least to try issues of fact instead of juries. Why cannot they simply trust the judges in the case we are considering and allow them to make the decision about every application?

Edward Garnier (Conservative, Harborough)

The hon. and learned Lady knows that the relevant section of the Police and Criminal Evidence Act 1984—it may be section 74—gives the judge discretion to exclude evidence. Has she applied her mind to the way in which the Bill will sit with that power? We appear to have two conflicting measures that deal with inclusion or exclusion of evidence, and the Government may not have tackled the matter. Can she help me?

Vera Baird (Labour, Redcar)

I believe that the hon. and learned Gentleman is thinking of section 78 of PACE, which is couched in similar terms to clause 93(3). If its criteria add anything to the test in section 78, it would be on top of the test. Section 78 applies across the board to all sorts of evidence and cannot be excluded by another provision.

Let me deal briefly with paragraph (d) of clause 93(1), because it is the nub of the issue. It allows evidence of previous convictions to be admitted simply because they are there. What is the provision for? If the convictions are probative—if they prove or tend to prove something—they would be admitted under paragraph (f). If they are even slightly relevant to the case, they would be admitted under paragraph (e). What, therefore, is the purpose of paragraph (d)? It can only be to include them even though they are irrelevant and do not prove anything. That is unfair. I do not understand why the Government want to be in a position to do that.

How will the discretion be exercised? Opposition Members asked that question. Evidence that can currently be included under paragraph (d) is subject to the discretion. Clause 93(1) provides that evidence is admissible, and under paragraph (d) it is admissible simply because it exists. The court has to decide whether to exercise its discretion to exclude it if it is unfair, but it is always unfair to admit irrelevant and non-probative previous convictions. How will the judge exercise his discretion? He will have to say to himself, "Parliament says that it is admissible but it's obviously unfair so I must exclude what Parliament has said in statute must be included." That does not hold together. The paragraph is unnecessary. It is also bad, dangerous and pointless, and I urge Ministers to reconsider it.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I agree with the analysis of the hon. and learned Member for Redcar (Vera Baird). Her points are correct. The clause already provides for admitting probative and relevant evidence. Paragraph (d) will have a simple effect: in cases where there are previous convictions, they will be admitted. Like her, I cannot understand how the trial judge can exclude something that Parliament has expressly authorised.

The effect will be twofold. First, many miscarriages of justice will occur because of the previous convictions. The second point is slightly different but the consequence is much the same: the police will arrest and charge many people simply because they know of similar previous offences. That will lead to considerable injustice. I suspect that the courts will eventually decide that the paragraph offends against article 6 of the European convention on human rights because it prevents an individual defendant from receiving a fair trial on the basis of the evidence for the single offence with which he is charged.

We have a choice between the Law Commission's proposals, which are incorporated substantially in the Lords amendments, and the Government's. The House should clearly prefer the Law Commission's proposals. They were the subject of considerable consultation and of a draft Bill, which was published and examined at great length. Many noble Lords, who know much about the subject, voted authoritatively for the proposals. I commend them to hon. Members. My hon. and learned Friend the Member for Harborough (Mr. Garnier) is anxious to speak and I shall therefore sit down to enable him to do so.

Edward Garnier (Conservative, Harborough)

I have a suspicion that anything I say may undo what my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) and the hon. and learned Member for Redcar (Vera Baird) said. I could not agree more with their comments and I hope that the Government take them on board. Their points are self-evidently good and should have been accepted earlier.

There are two simple points about bad character evidence. It is said, first, that it suggests that the person is likely to have committed the crime with which he is currently charged, and secondly, that it tends to undermine his credit. I have never been convinced by either of the arguments, although I have ritualistically had to recite them when summing up evidence to juries. However, I am more dismayed by the Government's approach to bad character in the Bill. Nobody of sound mind could believe that the original drafting of clause 91, which dealt with behaviour that would be viewed with disapproval by a reasonable person, was sensible. Despite having the advantage of the advice of the other place and the Law Commission report, the Government devised an amendment that refers to "misconduct" on the part of the person who is alleged to have a bad character.

Misconduct means nothing in criminal legislation. Until the Government define it more seriously, the relevant part of the Bill, if not others, will be treated with great scepticism and, on my part, much contempt. I urge them to apply their mind to the matter with greater seriousness.

Paul Goggins (Labour, Wythenshawe and Sale East)

I am grateful for the welcome that the hon. Member for Beaconsfield (Mr. Grieve) gave to some of the movement that has happened through scrutiny in both Houses. During his remarks, there was an interesting discussion about the flexibility that interests of justice discretion provided. I was interested in his comments. Of course, safeguards are provided, but it is ultimately for the court to decide whether evidence is admissible. I believe that it is better to know about evidence that may be admissible and decide to exclude it than not to know about the existence of possibly relevant evidence.

We have debated at length the difference between the inclusive and exclusive approach to the matter. For most people outside the justice system, the difference between evidence that "is admissible if" and evidence that is "not admissible unless" is perhaps a rather fine point. However, it certainly does not mean that evidence is automatically included. Indeed, as I said to my right hon. Friend the Member for Southampton, Itchen (Mr. Denham) there are safeguards in place, and the defence can argue that certain evidence is irrelevant and could be more prejudicial than probative. It is for the court to decide.

I do not agree with the view of the hon. Member for Beaconsfield that the inclusive approach tends to distort. It is important that we should send out a message from the House in our debates on the Bill that we want to encourage the admission of evidence that could be admitted even now, but sadly, all too often is not. There has been a great deal of debate on clause 93(1)(d), and that has continued here this evening. I return again to the safeguards that are in place, which I have mentioned on previous occasions. I would say to the hon. Member for Beaconsfield that there would be no conviction solely on the basis of bad character. It would be open for the defence to argue that evidence was more prejudicial than probative.

My hon. Friend the Member for Stafford (Mr. Kidney) asked which amendments I was referring to earlier. It was amendments (a) to (e) to Lords amendment No. 29—

Clause 146 — General Limit on Magistrates' Court's Power to Impose Imprisonment

Paul Goggins (Labour, Wythenshawe and Sale East)

I beg to move, That this House disagrees with the Lords in the said amendment.

Michael Martin (Speaker, Glasgow Springburn)

With this it will be convenient to take the following: Lords amendment No. 139 and the Government motion to disagree thereto; Lords amendment No. 167 and the Government motion to disagree thereto; Lords amendment No. 173 and the Government motion to disagree thereto; and Lords amendment No. 235 and the Government motion to disagree thereto.

Paul Goggins (Labour, Wythenshawe and Sale East)

When it left this House the Bill did not impose any restrictions on the timing of the increase in magistrates' sentencing powers, which allowed a flexible approach to implementation. The Lords have taken away that flexibility. Lords amendments Nos. 138 and 139 would prevent the increase of magistrates' sentencing powers from coming into effect before the custody-plus provisions, thus blocking the transfer of business from the Crown court to the magistrates courts.

Because custody-plus will replace current sentences of up to 12 months, it will enable magistrates to deal with a substantial number of cases in which they would currently refuse jurisdiction. It is generally agreed that that would be a positive move. Dealing with such cases in the magistrates court rather than the Crown court would constitute a more efficient use of resources, and would reduce delays, as well as benefiting victims and witnesses.

The Government are committed to implementing custody-plus as soon as possible, but before we do so we will have to be sure that the National Probation Service has the capacity to fulfil the supervisory function that forms an important part of this disposal so that the new sentence can have the anticipated effect on prisoners' rehabilitation and resettlement. That means that the new sentences should not be implemented immediately. We do not, however, see why the greater sentencing powers should be curtailed, given the immediate benefits to the administration of justice.

Members of the other House argued that increasing magistrates' sentencing powers in advance of custody-plus would sharply increase the severity of custodial sentences passed in magistrates courts. Let me reassure the House that there is no conclusive evidence to support that theory. Any increase in powers would be accompanied by a thorough training programme to ensure that magistrates used their new powers appropriately. On the basis of that evidence, I urge the House to reject the amendment.

Let me now deal with Lords amendment No. 167. As originally drafted, the Bill provided for an indeterminate sentence to be passed if the offender was convicted of a trigger offence carrying a maximum penalty of 10 years or more, and if the court believed that

"there was a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences".

As we have said in both Houses, the purpose of the test is to establish whether an offender is dangerous. In making that judgment, the court must focus primarily on the degree of risk of harm that any future offending may pose. It was decided in the other place, however, that our definition of dangerousness set too low a threshold, and suggested that the court should believe there was a "substantial" rather than a significant risk. While the definitions may appear similar, I want to persuade the House that in the interests of public safety the original definition is preferable.

There are two difficulties with the alternative test proposed in the other place. First, it requires the court to find that there is a substantial risk of reoffending, and also that such further offending involves a significant risk of harm to the public. The original test is more flexible, in that the risk of reoffending must be present, but consideration of that risk is part of the overall "dangerousness" assessment that the court will carry out. The second difficulty is that the alternative test requires both a substantial risk of reoffending and a significant risk of harm. We think that that confusion could over-complicate the assessment by unhelpfully using terms that may be difficult for the court to distinguish, when in reality the assessment is a single exercise.

We fear that the combined effect of these changes will be that certain offenders who pose a significant risk of serious harm to the public may not come within the remit of the definition, because they are not found to pose a substantial risk of reoffending. As a result they will not be eligible for the new sentences for dangerous offenders, and will serve a determinate sentence, release from which is automatic, regardless of the risks that they pose to the public. I urge the House to reject the amendment.

I now turn to Lords amendment No. 173. As originally drafted, the Bill provided for the automatic release of non-dangerous offenders serving sentences of 12 months or more at the halfway point of their sentences. The Lords, however, decided that when the sentence was of four years or more, automatic release could not occur before the offender had served two thirds of his sentence in prison.

Under the current sentencing provisions, those serving short custodial sentences and those serving longer sentences of four years or more are subject to different release provisions. That is justifiable on grounds of public protection, ensuring that potentially dangerous offenders serving sentences of four years or more can only be released between the halfway and the two-thirds point, subject to thorough risk assessments.

Of course public protection remains a priority for the Government, and we would not wish to release any dangerous offender automatically when he had served only half a custodial sentence. For that reason offenders who are assessed as dangerous will not be eligible for the new custodial sentence of 12 months or more, but will be subject to one of the new sentences for dangerous offenders or to a discretionary life sentence.

The introduction of a single simple structure for all custodial sentences of 12 months or more for non-dangerous offenders, with automatic release at the halfway point, will have many benefits. It will make the sentencing framework more transparent and easier for the public to understand, providing more certainty in regard to release dates. It will enable the correctional services to plan the post-release packages much more effectively, and to establish a coherent package of interventions for the entire second half of the sentence. It will also give offenders a longer period under supervision in the community, during which they can address their rehabilitation needs and reduce their propensity to reoffend. I hope that, given those assurances, Members will be persuaded to reject the amendment.

The Lords have added a new clause to give chief officers of each probation area a duty to establish consultation arrangements with local magistrates court committees and local communities. The Government agree with the sentiment of the amendment and acknowledge the importance of encouraging joint working, but I hope to reassure the House that such a statutory duty is not necessary in the light of existing arrangements.

Current guidance promotes communication, understanding and mutual confidence between the courts and the probation service, and emphasises that joint working imposes a number of obligations on sentencers and probation staff to achieve those ends. The new local criminal justice boards bring together the criminal justice agencies to work towards meeting the public service agreement targets for narrowing the justice gap and increasing confidence in the criminal justice system. Furthermore, the national probation directorate has agreed with the Magistrates Association to establish a new national consultative group, which will help to give magistrates and other sentencers a clear, strong voice in the development of policy and practice.

The probation service has also developed closer links with local communities, and the new local probation boards have a more diverse membership and are more responsive to local needs than ever before. The involvement of the probation service in crime and disorder reduction partnerships allows it to tap into the concerns of the local community.

On the basis of that evidence showing the amount of work already under way to promote joint working, I encourage Members to reject Lords amendment No. 235.

Humfrey Malins (Conservative, Woking)

I want to say something about the last two matters raised by the Minister, relating to probation officers' duty to establish a consultation process with courts.

The Minister, like me, will know from practical experience that probation officers generally have a close relationship with courts. They do in my county of Surrey, anyway. The main problem for the probation service in carrying out its work is funding, and many head probation officers would be ambivalent about whether the measure should be introduced, as it would not affect their daily lives. However, the issue of funding is important, and I shall return to it in a moment.

Let me turn to release halfway or two thirds of the way through a sentence. Our system is rather complicated, and magistrates and judges have to use a particular formula when they sentence someone, saying that the defendant will be released after a certain period on licence, and if they reoffend during licence they will be recalled. However, as the Minister will know, that depends on the length of sentence. In our short debate, I should like to make a simple point. The Minister will agree that the critical issue is not whether someone is released halfway or two thirds of the way through their sentence but whether they are released only when they are fit to be released. Much more importantly, huge emphasis should be placed on the follow-up, which is absolutely essential. Far too many offenders are released from prison without that follow-up, which is critical to reoffending rates, not whether offenders come out after two years or two thirds of a four-year sentence.

Turning to Lords amendments Nos. 138 and 139, as we know, a new sentencing power for magistrates is introduced in clause 146, and custody-plus is introduced elsewhere in the Bill. The Minister will recall that, in Committee, custody-plus was generally thought to be a sensible development, but their Lordships have hit on the important issue of the order in which the sentencing power and custody-plus are introduced. The Minister will know that I serve as a part-time deputy district judge in stipendiary magistrates courts around London. The average defendant has 10 or 15 previous convictions, often low-level offences, perhaps including eight thefts in the past couple of years. How are they to be sentenced? I am sure that he will accept that clause 146, which provides the power to impose imprisonment for up to 12 months, will result in practice in much longer sentences being passed in magistrates courts. Very often, a district judge or magistrate sentencing somebody who they believe should get seven to 10 months in prison on a guilty plea or conviction will pass a sentence of four months. If, for example, there is a guilty plea, one has to give a discount, so a sentence of four or five months will be the maximum.

Under the clause, perhaps rightly—although this is not the point of our debate—a magistrate may say that the defendant has a rotten record and give them nine or 10 months, which I am sure will lead to a dramatic increase in the prison population. Most custodial sentences are passed in magistrates courts, day after day. At Camberwell Green, for example, sentences totalling 40 or 50 years can be passed in one morning in five different custody courts. Once the extra powers are used, there will be 30 per cent. on top of that total, so there will be a problem, to which the hon. Member for Southwark, North and Bermondsey (Simon Hughes) alluded in Committee.

If that proves to be the case, the Minister needs to deal with the worrying issue of prison numbers. Does he think that the provision, once implemented, will have an impact on prison numbers? I believe that it will, and our prisons are currently dangerously overcrowded. Later in the Bill, there is a clause on custody-plus. There is something to be said for custody-plus, which is a relatively short custodial sentence followed by an intense supervision period. Again, a lot of money is involved. Too often, intense supervision is missing, and people come out of prison without follow-up, which is essential if they are to have genuine discipline and find a home and job. Instead, they are simply left alone.

It is odd to introduce a provision under which magistrates can pass a sentence of up to 12 months before the national roll-out—I do not like the phrase, but the Minister knows what I mean—of custody-plus, which is a big change. I am happy to be corrected, but it is likely that defendants on their fifth, sixth or seventh charge of shoplifting will get a sentence of eight to 10 months. However, in a county where the custody-plus pilot is being rolled out, they would receive a much lower sentence. Their Lordships were right to want to introduce the custody-plus provision first. We should get it working across the country, then introduce the other provision. That view is shared by Opposition parties—we are worried about high prison numbers, and I think that the Government are right.

In conclusion, Lords amendment No. 167 would change the wording of clause 216. Their Lordships have again got it right. In Committee, we had a debate in February about the correct wording of the provision. Currently, clause 216(1)(b) states that the provision applies where

"the court is 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."

The Minister told me that under the Government proposal a significant risk has to be present. However, if one reads their wording carefully, the provision plainly means that the court will think that any further specified offences committed by the offender will cause a significant risk to members of the public of course. The significant risk to the public of a certain course of action is not set out clearly in the Bill, as the present wording implies that if further offences are committed, there would be a significant risk of serious harm to the public as a result.

I hope that the Minister and hon. Members understand the fine distinction that I am making. The significant risk of further offending does not have to be present under the provision as drafted, and their Lordships have the wording right. In February, I outlined that argument in Committee, and it has been repeated by their Lordships, who have introduced a much tidier wording.

To conclude, we shall not force a Division. In some ways, their Lordships have it right. We are concerned about the timing of custody-plus and maximum sentences. The Minister is a good man, so I know that he will focus on my two main pleas. First, the probation service needs to be properly funded to carry out all its work and, secondly, the Government and the rest of us must concentrate on what happens to prisoners when they come out of prison rather than the length of the sentence that they serve.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

We have six minutes left, which again shows how frustrating the guillotine is.

My hon. Friends and I will seek to divide the House on Lords amendments Nos. 138 and 167. If time permitted, we would seek to support Lords amendments Nos. 173 and 235 too, but we have to select, otherwise there would not be any debate on the next set of proposals.

On the first substantive point, the hon. Member for Woking (Mr. Malins) set out the view of the Lords. The Bill has some very good proposals, as the Minister knows, in terms of custody-plus and custody-minus. Put simply, the custody-plus proposal is meant to deal with the fact that, at the moment, if people get sent to prison for less than a year, the Prison Service is not able to do anything useful with them; that is the general view of prison governors and the Prison Service.

The measure says that the sentence will be in two parts: first, custody, and then rehabilitation and punishment in the community. That is a good proposal but, when my hon. Friend the Member for Winchester (Mr. Oaten) asked when the Minister expected to implement custody-plus, the Home Secretary said

"Final decisions . . . have not been made".—[Official Report, 10 November 2003; Vol. 413, c. 98W.]

The reality is, as he knows, I know and everyone knows, that the money is not available. Therefore, we are about to allow magistrates courts to have increased maximum sentencing powers, doubling their current sentencing powers. At the same time, we will not be able to implement the proposal on custody-plus.

Had custody-plus been in operation, the maximum 12-month sentence would have meant three months inside and nine months outside, and that would have been acceptable. Our belief that the magistrates will use those powers—Ministers say they do not believe it—is borne out by all sorts of facts. First, the figures show that magistrates are now twice as likely to send an offender to prison than they were 10 years ago: 13 per cent. of all cases now go to prison from a magistrates court compared with 6 per cent. in 1992, and twice as many people are imprisoned each year for short sentences as were imprisoned 10 years ago. Given that we have the highest prison population ever; given that prisons are hugely overcrowded; given that there are more than 70,000 people in prison; and given that we have more people in prison than any other comparable country in western Europe, we should not be giving that opportunity.

The second reason, based on the evidence, why the proposal is a bad idea is that there is no argument to show that, as the Minister asserted in the Lords, people are not sentenced more severely as compared with the Crown court. Professor Lee Bridges, whom the Minister respects and who is a widely respected authority, has made it clear that the majority of cases sent by the magistrates courts to the Crown court on the basis that the magistrates think that they do not have sufficient powers to sentence result in the sentence being one that it was within the magistrates' power to give. The magistrates courts often think that they do not have the power to give the appropriate sentence, and that suggests that they will give a higher sentence. Professor Lee Bridges makes the strongest case—I refer colleagues to it. He says that the increase in magistrates' sentencing powers will

"send entirely the wrong message from the Government to magistrates."

We fear, as the hon. Member for Woking does, that the proposal will increase the population in prison and increase the average sentence.

Another proposal is a significant proposal about life sentence prisoners. Basically, the Government have not followed the clear view of the Lord Chief Justice. The Lords sought to limit the circumstances in which people could be given much higher tariffs—the starting points. The Lord Chief Justice—I put it on the record—wrote in a memorandum that he put in the Libraries of both Houses on 16 June that he had given advice on the matter to the Home Secretary, which became a practice note in May 2002, in which he made it clear that the average sentence was of the order of between 12 and 16 years—12 years for the normal case, in practice, for someone who is given a life sentence, and 16 years for the most serious case. What these proposals will do, effectively, is significantly increase the time for which the people on the most serious charges are sent to prison. Again, as colleagues in the House of Lords made clear, this country puts far more of its sentenced prisoners in prison for life than any other comparable country. There were 5,352 prisoners serving life sentences in February 2003, a higher proportion than the whole of western Europe combined.

7.45 pm

We are walking into a new sentencing regime that is not justified on the basis of what all the judges have done and what the Home Secretary accepted only a year and a half ago. We should be particularly careful to ensure that we do not go down this road, and that young people—although the Government have made a small concession—do not have such a high minimum sentence.

The Liberal Democrats believe that it should not be for Parliament to set minimum sentences. That is why we set up the Sentencing Guidelines Council. We believe that advice should be given and respected. We are going down the wrong road if we set minimum sentences here.

Clause 216 — Life Sentence or Imprisonment for Public Protection for Serious Offences

Clause 254 — Determination of Minimum Term in Relation to Mandatory Life Sentence

Paul Goggins (Labour, Wythenshawe and Sale East)

I beg to move, That this House disagrees with the Lords in the said amendment.

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

With this it will be convenient to take the following: Government amendments (a) and (b) in lieu thereof; Lords amendment No. 431 and the Government motion to disagree thereto.

Paul Goggins (Labour, Wythenshawe and Sale East)

As we have said before, we believe that it is necessary to include juveniles in the murder sentencing framework laid down in schedule 19. We have considered the issue carefully, as we undertook to do in debate in the House earlier this year. Our conclusion is that the principles as they stand incorporate sufficient flexibility in respect of juveniles for appropriate tariffs to be reached in individual cases. As hon. Members will know, in the other place concern was expressed about the application of these provisions to juveniles, and juveniles were removed from the framework last week.

We do not accept that juveniles should be dealt with outside the sentencing framework. Their inclusion is desirable, both in providing the clear, simple and transparent sentencing structure necessary to maintain public confidence in the justice system and in ensuring consistency and fairness in setting minimum terms for murder.

Hilton Dawson (Labour, Lancaster and Wyre)

Does my hon. Friend accept that there is serious concern in this House as well about the minimum sentencing framework for juveniles convicted of grave crimes? There is only a very short time available for this debate, and further legislation on juvenile sentencing may be introduced in the next Session. Surely this would be a good opportunity to follow the other place and leave this issue until the next Session of Parliament.

Paul Goggins (Labour, Wythenshawe and Sale East)

I acknowledge that similar concerns have been expressed in this House, and my response to them is the same as to those expressed in another place. However, I shall conclude my remarks fairly quickly, and so give my hon. Friend and others an opportunity to contribute to this short debate.

We understand the concerns expressed about juvenile tariffs. To allay them, we propose to reintroduce juveniles into the sentencing system, but we will specifically set in the statute a lower starting point for juveniles, to recognise the special needs of that age group. The juvenile starting point will be 12 years, which reflects recent guidance from the Lord Chief Justice. We think that there is nothing in the proposal to detract from the court's ability to set appropriate tariffs in each case, given that there will remain flexibility to aggravate and mitigate upwards and downwards.

Dominic Grieve (Conservative, Beaconsfield)

The Minister describes 12 years as a starting point. Will he confirm that 12 years is not the minimum starting point but a median starting point that can be reduced as well as raised?

Paul Goggins (Labour, Wythenshawe and Sale East)

I am happy to confirm that to the House. Throughout the Bill, the starting points are just that—starting points, not minimum tariffs. They can be raised or lowered depending on the circumstances of a case. That is true for the 12-year starting point for juveniles. The actual tariff for a juvenile may be lower or higher than 12 years.

Hilton Dawson (Labour, Lancaster and Wyre)

Does not the Bill also introduce a new provision, whereby children under 16 could end up with a 12-year sentence? In the past, that has not been possible.

Paul Goggins (Labour, Wythenshawe and Sale East)

The Bill gives the court the power to deal appropriately with what may be a very serious offence, whether or not it is committed by a juvenile. It makes it very clear that there should be a starting point for juveniles, as there is for adult offenders, but at the lower level of 12 years.

Although hon. Members may wish to comment on that proposal, and even disagree with it, I hope that my brief remarks have made the Government's position clear—that we wish to reintroduce juveniles into the framework, with a starting point of 12 years.

Dominic Grieve (Conservative, Beaconsfield)

I am well aware, from our previous debates and especially from the debate on Report, in which the Home Secretary participated, that divergent views about the correct way to approach children under 18 who commit very serious offences are perhaps inevitable. Clearly, there is always public anxiety about the matter. As I said to the Home Secretary on Report, we may have to accept that a person at the upper limit of the age group who commits a very serious offence, with attendant cruelty and signs of a psychopathic tendency, will have to serve many years in prison. That person may have to serve as long as an adult for the offence, and may never be released. In such circumstances, I suppose that a 12-year starting point may have some relevance.

The Minister will recall that I spoke about children at the bottom of the age range, who have only just reached the age of criminal responsibility. However grave and serious their crimes may be, there is always the possibility that their personalities will change as they mature, aided by the active input of those looking after them. That will often mean that a 12-year sentence will be completely inappropriate.

I shall not criticise the Government for adopting this course of action. I am grateful that they have reconsidered the starting point. However, my slight concern about the provision is that I suspect that, in reality, the children who commit serious offences—for that is what they are, children—will serve nothing like as much as 12 years. The public may then express concern about why they are so far below the starting point.

I recall the Lord Chancellor saying, when he was a Home Office Minister in the other place, that he thought that no sensible judge would have difficulty discounting the starting point sufficiently to arrive at a fair outcome. However, that seemed to me to be a slight sleight of hand, as if we would be asking the judiciary to bend the rules to adapt to particular circumstances.

It is a personal view, but I remain somewhat troubled. Although I think that the Government are right to revisit the starting point, I worry that we may be creating a system that the judiciary will observe more in the breach, instead of following it. If that is so, this exercise will have been rather pointless. Worse still, people—who get very anxious about such matters—will criticise the provision and believe that the starting point is not being observed.

I hope that I am wrong about that. I do not wish to leave the matter on a bad note, as I accept that the Home Secretary has taken on board many of the anxieties that were expressed.

Hilton Dawson (Labour, Lancaster and Wyre)

I am afraid that I cannot accept this provision, and hope that the House will follow the sensible lead given by the other place. We are talking about children who have committed very grave crimes, but they are children in extraordinary circumstances. Invariably, children in that sort of predicament will have been victims themselves, often of the most gross and appalling abuse. They often have major issues to resolve in their lives, and face huge problems.

The House will recall the case of Mary Bell. When given the appropriate level of support she was able to change her life, and some of her very serious problems were addressed. We should acknowledge that children and young people are very resilient and can make huge changes. Often, when these children are given the intensive support that they invariably need, they can change fairly quickly.

It is wrong to present a tariff of 12 years as normal. It is inappropriate to take that decision away from judges, who will need every ounce of their wisdom, discretion, learning and sensitivity to these cases to decide on the appropriate sentence. There may well be cases where a judge decides that a much shorter sentence than 12 years is required. There may well be cases where the reform of and change in the young person under an intensive regime—no doubt, within a secure setting—will lead all those charged with their care to believe that they should be released from custody and helped back into the community much more quickly than any tariff set down in the wake of what was no doubt a heinous and appalling crime.

The Government are wrong on this matter. The other place is right, and I hope that my hon. Friend the Minister will reflect on that.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

This is a difficult and sad subject on which to end our debates on the Bill. It is extremely difficult for all those concerned. I share the view of the hon. Member for Lancaster and Wyre (Mr. Dawson) that the House of Lords was right in its decision. I also share the concerns expressed by those on the Conservative Front Bench in previous debates.

Clause 254 in chapter 7 provides for a determination of minimum term in relation to a mandatory life sentence. Lords amendment No. 203 states that that should

"not apply if the offender was under 18 when he committed the offence."

The Lords decided that on the basis of extremely good advice and practice.

I shall reinforce what the hon. Member for Lancaster and Wyre said by again quoting—I have quoted this in a previous debate—what the Lord Chief Justice said in the memorandum that he submitted on mandatory life sentences for murder on 16 June in connection with the House of Lords debate on the Bill. In paragraph 33 of that memorandum he says:

"I have, however, to assist the Home Secretary by making recommendations as to the minimum periods juveniles, who were in a transitional position, have to serve . . . The progress made in many of the approximately 140 cases I have examined is often very significant. The offenders were usually from a deprived background and when they received the attention that was provided in custody their attitudes to their offending and their behaviour were frequently transformed."

Later in the same memorandum, he says:

"For Parliament to set the guidelines and interfere with sentencing in this unprecedented manner at this time is particularly inappropriate since it is also setting up a new expert independent body which in turn has to act on the expert advice of the Sentencing Advisory Panel.

Sentencing, particularly in relation to murder, should be removed from the political arena. The present proposal will have the effect of increasing political involvement."

The Lord Chief Justice went on to describe what he had advised on juveniles in his practice direction of last year. He said:

"In relation to juveniles, that is young offenders, while it was appropriate to start with the normal starting point for an adult of 12 years, there was to be a reduction for the age of a child with the result that 'for a child of 10, a judge should be considering a starting point in the region of 5 years'."

He ended by looking at the proposals on young people and said in paragraph 62:

"I would now refer to the position of children. What is the justification for putting up their normal starting point by an equivalent of 6 years?"—

I accept that the Government have tabled an amendment that would make that three years, because they have brought down the starting point from their original proposal of 15 years to 12, but the principle still applies —

"I particularly emphasise this because if the Government's approach is right, juveniles will not again be considered until their minimum period has been served. Can it ever be right not to allow the Parole Board to consider his case at least when he becomes 18 and ceases to be a juvenile and so eligible for the adult prison system?"

For me, that has always been the issue. If one commits an offence, however terrible, as a juvenile, the moment one becomes an adult in the eyes of the law one's future and past should be reviewed. What one did as a 10, 11 or 12-year-old should not be regarded as an indication of how one is likely to behave as an 18-year-old. That is why there should be no minimum. There should be no inflexibility. The court should be able to make a decision based on the individual young person before it, which should be reviewed when he or she becomes 18.

The rest of paragraph 62 of the Lord Chief Justice's memorandum states:

"If you have had to read the files of the successive reports relating to juvenile murderers in the numbers that I have, you could not be but appalled by such a suggestion. Many of those involved, if not all, come from a disadvantaged background. Those who have responsibility for their upbringing after they are sentenced usually do a most remarkable job of bringing up those youngsters and they can be transformed in consequence. It is not either just to them or the public to ignore the scale of the change that can take place. Nobody suggests that in their case they should be detained for life. If they are not to be detained for life, it is important in their interests and the public's interest that they are released before what has been achieved for them while in custody as a juvenile is destroyed by their exposure to the adult prison system."

We all know of the public revulsion at murders committed by juveniles, and I completely understand that. However, they are juveniles and they must be given the benefit of a new start. On the Liberal Democrat Benches, we are clear that the principle should be left to the judge, advised by the sentencing council, in individual cases, and not determined by Parliament. We here cannot do that job fairly either for young people or for society, and we should not try.

Paul Goggins (Labour, Wythenshawe and Sale East)

I do not think that there is any contradiction between the belief, which I am sure we all share, that when a child becomes an adult they can reform and rebuild their life after committing a heinous crime, and the belief that there should be a starting point that judges will consider—

The rest of the debate is in Hansard.