§ Mr. Roger Sims (Chislehurst)
I beg to move amendment No. 13, in page 29, leave out lines 9 to 18.
The amendment raises a matter which has not been referred to earlier in proceedings in this House or another place.
In the administration of justice, the magistrates' courts face a difficulty in the impression that the public have of how they function. The police investigate an alleged offence, they charge an alleged offender, a summons is served on him to attend court — a court still known popularly as "the police court"—and in court the police conduct the case against the defendant.
Some defendants who are not familiar with the ways of the court—and some of those who are—are convinced that once the police have started investigations and pressed a charge, that is it, because the police and the court are part of one set-up to ensure that that person is convicted under the system.
We know that that is not so, that it is the job of the police to investigate a crime and to bring a case to court if they consider that there may be a case to answer, and that it is left to the court to decide—a magistrates' court or a higher court, all of whom form part of our independent judiciary. It is up to the court to decide guilt and to sentence.
Alas, that is not how it is always seen. This Bill is a very important step in clarifying the position by setting up an independent prosecution service—independent of the police and independent of the courts. They will be three quite separate entities.
138 My fear is that if the lines to which I refer remain in the Bill, that appearance of independence will be seriously prejudiced. That is not only my view, because I speak for the Magistrates' Association, which represents more than 90 per cent. of active magistrates in England and Wales — and its concern is shared by the Justices Clerks' Society and by the Association of Magisterial Officers, which I have the honour to advise.
As the Bill stands, in a case where there is a plea of guilty by letter, as frequently happens, the normal procedure will be for the clerk to read the prosecution statement. That will be the case even if the defendant appears in court having already pleaded guilty by letter, because presumably there will be no one present from the prosecution service, and the clerk will be expected to read the prosecution statement.
The magistrates and the court staff know that others have prepared that prosecution statement and that the clerk is simply the mouthpiece. But others who are not familiar with court procedures will not know that. What sort of impression will they get? What will be the impression of those sitting in the public gallery—the casual visitor, or those sitting waiting for their cases to be heard later in the morning? The impression will be given that the clerk is very much involved with prosecution procedure, and he will be seen to get up and apparently to present the case. This must undermine the image that we are trying to convey—that the prosecution service is independent.
I suspect that my hon. Friend will argue against this on grounds of expense, but I am not suggesting that it is necessary to have a highly qualified solicitor in court simply to deal with a strong of please of guilty by letter. However, an assistant in the prosecution service, or somebody from it who is not part of the court staff, should be seen to be presenting the case, even when it is a guilty plea by letter.
I hope that my hon. Friend will feel able to accept my amendment. If he is not, perhaps he can explain to the House the thinking behind the proposal in the Bill. Is it intended to cover exceptional circumstances? That is understandable, but if it is to be the general practice that the court clerk is expected to read out the prosecuting statement in the circumstances that I have described. that is regrettable, both in principle and in practice, and ii will impose upon the clerks a duty that they do not wish to have, and, for the reasons that I have set out, it is inappropriate for them to have.
§ Mr. Mellor
My hon. Friend the Member for Chislehurst (Mr. Sims) has considerable experience, as a justice of the peace, of Home Office matters. Therefore, it is with some care that I deal with his points. I know that he is putting concerns that are felt by the Magistrates' Association and the Association of Magisterial Officers. I reassure him that in most circumstances courts will be attended by members of the prosecution service, and that will plainly be in everybody's interests. However, there are circumstances, when a court is dealing with pleas of guilty by letter, when it would not be contrary to the interests of justice if the clerk were to read out the agreed statement of facts.
We would be sensitive to any suggestion that we were placing an officer of the court in an invidious position. We would not allow matters of economics to compel us to take that action if we thought that we were doing that. While 139 economics are relevant in this sector as in any other, and we must govern our actions to som extent by this, we would not do anything just for the financial aspect alone.
However, there is some sensitivity about this, and officers need not be as troubled as they are. After all, we are dealing in the main with traffic offences, relatively trivial matters by the standards of the worst crimes in the criminal calendar, which the defendant has decided is a fair charge, and should be the subject of a guilty plea by letter.
It has always been the case that when the guilty plea by letter arrives, it will almost certainly contain some passages of mitigation, and it has always been the case that the clerk reads out those passages of mitigation. All that we are suggesting that he will do under these arrangements is also to read out an agreed statement of facts, which will already have been submitted to the defendant, and about which he will know before making a plea of guilty. If he were unhappy about any of those facts, he would either have asserted that by way of his plea, or by mitigation in his letter.
As it has not been suggested, and it would be wrong if it were suggested, that the clerk of the court was entering the arena on behalf of the defendant by reading the defendant's letter to the justices, it would also be wrong to suggest that the clerk was entering the lists on behalf of the prosecution by reading out the statement of fact.
On a proper analysis, I believe that the statement of facts, once they are agreed by the defendant, becomes more than a partisan assertion. They become the agreed facts of the matter.
I hope that, on that basis, my hon. Friend will see that there is quite a compelling case for doing what we do. Although one is always reluctant to be at odds with any part of the magistracy or its clerks, it would be difficult for me to do as he asks. I hope that my explanation has been helpful and that on that basis he will agree to withdraw the amendment.
§ Mr. Sims
I am grateful to my hon. Friend for his explanation. I accept that the defendant would be well aware of the situation, and the statement being read out by the clerk would be an agreed statement. My concern was the impression that the general public might have as to the involvement of the clerk in the prosecution procedure. I have explained the fears that the magistracy and the magistrates' clerks have. My hon. Friend has done his best to put those fears at rest. I hope that in the event they will prove to be unfounded. In the light of what my hon. Friend has said, I beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Amendments made: No. 14, in page 29, line 36 at end insert—
'Contempt of Court Act 1981 (c.49)
3A. In paragraph 7 of Schedule 1 to the Contempt of Court Act 1981 (meaning of "discontinuance" in relation to criminal proceedings), the following sub-paragraph shall be inserted after sub-paragraph (a)—
"(aa) in England and Wales, if they are discontinued by virtue of section 23 of the Prosecution of Offences Act 1985".
3B. After paragraph 9 of Schedule 1 to that Act there shall be inserted the following paragraph—
9A Where proceedings in England and Wales have been discontinued by virtue of section 23 of the Prosecution of Offences Act 1985, but notice is given by the accused under
subsection (6) of that section to the effect that he wants the proceedings to continue, they become active again with the giving of that notice.".'.
§ No. 17, in page 30, line 6 leave out `(1)' and insert `(2)'.—[The Solicitor-General.]
§ The Solicitor-General
I beg to move amendment No. 15, in page 30, leave out lines 29 to 44 and insert—'(5) For paragraphs 6 and 7 there shall be substituted the following—6. Where the criminal division of the Court of Appeal makes an order as to costs to be paid by—This is a technical amendment substituting a new paragraph. It deals with the enforcement of cost orders made by the Court of Appeal. Cost orders made by the House of Lords will be enforced as part of the inherent jurisdiction of that House.
- (a) an appellant;
- (b) an applicant for leave to appeal to that court; or
- (c) in the case of an application for leave to appeal to the House of Lords, an applicant who was the appellant before the criminal division.".'.
§ Amendment agreed to.
§ Amendment made: No. 16, in page 31, line 13, leave out 'award' and insert 'order'. — [The Solicitor-General.]