HC Deb 28 June 1988 vol 136 cc290-5
Mr. John Patten

I beg to move amendment No. 226, in page 90, line 12, leave out from '5' to end of line 14 and insert '(notices of transfer-procedure)—

  1. (a) in subsection (4), for the words "without the person charged" there shall be substituted the words "in relation to a person charged without his";
  2. (b) in subsection (5)(a), for the word "charged" there shall be substituted the words "in question";
  3. (c) in subsection (6)—
    1. (i) for the words "the person charged" there shall be substituted the words "a person to whom it relates"; and
    2. (ii) for the words "examining justices" there shall be substituted the words "a magistrates' court";
  4. (d) in subsection (7)—
    1. (i) for the word "charged" there shall be substituted the words "to whom the notice of transfer relates", and
    2. (ii) for the words "examining justices" there shall be substituted the words "a magistrates' court";
  5. (e) in subsection (8)(b), for the words "whose written statement is tendered in evidence for the purposes of the notice of transfer" there shall be substituted the words "indicated in the notice of transfer as a proposed witness"; and
  6. (f) in subsection (9)(a)—
    1. (i) in sub-paragraph (i), for the words "the person charged" there shall be substituted the words "any person to whom the notice of transfer relates"; and
    2. (ii) in sub-paragraph (ii), after the word "the", in the second place where it occurs, there shall be inserted the words "place specified by the notice of transfer as the".'

Mr. Deputy Speaker (Sir Paul Dean)

With this it will be convenient to take Government amendments Nos. 227 to 236, 273, 237, 272, and 238.

Mr. Patten

These are drafting amendments. I am sure that one or two hon. Members have specific points to make, so perhaps I may listen to what they have to say before taking the House through the amendments.

Mr. Archer

That is a very handsome offer and it would be churlish of us not to take advantage of it. My simple mind finds it difficult to take in the amendments. It is virtually impossible to follow them without a visual aid. The Criminal Justice Bill that reached the statute book as recently as last year set out a new code of procedures for fraud trials based on the careful and thoughtful report of Lord Roskill's committee. Whether or not we agree with all its recommendations, no one can dispute the thought and expertise that went into the report.

The Government had second thoughts. With this Bill, they are already seeking to make changes to the procedures in the 1987 Act. To understand such changes, we need to refer to a copy of the 1987 Act and, alongside it, a copy of clause 137 of the Bill. The Government have now had third thoughts. They are making changes not only to the Act but to the changes. We need a wider table. We need the 1987 Act, clause 137 of the Bill, and the three amendments. Perhaps the Minister had the material in his mind, but some of us need to do it like that. I shall try to keep my remarks as brief as possible.

What are the relevant provisions of the 1987 Act? It states that the prosecuting authorities or the Secretary of State may decide that a fraud case shall proceed to the Crown court, without the necessity for committal proceedings by the magistrates court. The prosecution can unilaterally dispose of the committal stage. A few years ago, that proposition would have appeared to be startling, but that provision is already on the statute book. It is in the 1987 Act. I apprehend that it would be out of order to discuss its merits today.

Then the 1987 Act provides further that, if that is done, a defendant who has been bailed to appear before a magistrates court does not have to appear, which is not surprising, because that court is no longer dealing with the matter. But section 5(6) of the 1987 Act adds the words: unless the notice states that it"— it being the requirement to attend before the magistrates court— is to continue. There is no explanation of why, having ordained that a case is to leapfrog the magistrates court, a prosecuting authority should want to provide in the notice that, nevertheless, the defendant must attend before the magistrates court. But again, that is already on the statute book. It is in the 1987 Act.

Clause 137 provides that if the prosecuting authority states that a case must go to the Crown court without the necessity for committal by the magistrates, but that, nevertheless, the defendant must attend before the magistrates court, the magistrate shall have power to deal with bail. We have no complaints about that. Clause 137 passed through all stages of the Bill without having previously been mentioned because we thought that the Government got it right.

Amendments Nos. 226 and 227 exhibit all the symptoms of drafting amendments, and there Is nothing that I wish to say about them.

But amendment No. 228 is not an amendment to clause 137. It deals with quite a different matter. To understand it, we must again refer to the 1987 Act. If the prosecuting authority airlifts a case from the magistrates court and announces that the defendant shall go, if not directly to jail, at least directly to the Crown court, shall not pass Go and shall not collect £200, clearly there should be some judicial authority with power to examine the matter and decide whether there is enough evidence to warrant a trial at all. Section 6 of the 1987 Act so provides. A defendant may go to a judge of the Crown court and ask him to dismiss the case because there is not enough evidence properly to place him on trial. Amendment No. 228 seems to make some changes to that, although it does not actually change the provision.

Mr. John Patten

indicated assent.

Mr. Archer

I see from the Minister that, so far, even with all the visual aids that I must use, I have understood it.

The changes are largely procedural. But having drawn our attention to the matter and, particularly, having made his generous invitation. I hope that the Minister will forgive me if I ask a few further questions.

The 1987 Act does not state what evidence or statements are to accompany the notice of transfer. Section 5(9) simply states that the Attorney-General shall by regulations make provision requiring … a statement of the evidence. Presumably, that statement will be in the form of what we normally know as witness statements, made by witnesses to the police.

Mr. John Patten

indicated assent.

Mr. Archer

Again I am grateful to the Minister for confirming that that is right.

Section 6 of the 1987 Act provides that an application to dismiss the charge may be made and the judge may order the person who has given a written statement to supplement it by oral evidence. If that person does not comply with the order, it will not be admissible unless the judge gives leave. That, standing alone, is a little sharp. The judge may take the evidence from the prosecution although it has disregarded his order to have the witness in court to give oral evidence and, therefore, be available for cross-examination. That is a long way from the former position, when not only could a full committal be insisted upon, but the defence could insist that a witness be in court for cross-examination. However, at least under the 1987 Act that evidence would be disregarded unless a judge specifically gave leave to admit it.

Amendment No. 228 appears to reverse that position. The proposed new section 6 provides that if a judge orders a person to give oral evidence and he fails to do so—the prosecution fails to have him there—the judge "may disregard", not "shall disregard", it; not even that it "shall be disregarded" unless the judge positively orders otherwise, but simply that he "may disregard" it.

That raises a succession of questions that I wish to put to the Minister. First, why should the defence not have the right to require, in the magistrates court or elsewhere, that oral evidence be given? Secondly—even if that is left to the discretion of the judge—if he orders that oral evidence should be given, why should that not be enforced? Thirdly, if it is not enforced, why should the statement not automatically be disregarded? Fourthly—this relates speciifically to the amendment—even if it is not automatically disregarded, why should it not be disregarded unless the judge positively orders otherwise? Those four questions each logically follow the one before, and I should be grateful it' the Minister would answer them.

Mr. John Patten

That was a tour de force. I am becoming slightly nervous of the right hon. and learned Gentleman, for the first time during the passage of the Bill. During our recent debate he said that he would surprise me, and perhaps the House, by agreeing with me. A few phrases later, he began, ever so gently, to kneecap me with his arguments. He certainly did not agree with me at the end of that debate. He has now suggested that I have made a very generous offer. He has performed in such a way tonight that he could offer the Criminal Justice Bill 1988 as his subject on "Mastermind", should he ever appear on that programme. He had it absolutely right; there was no need for the visual aids and all the rest of it. He simply compared the 1987 Act with the Bill.

Amendment No. 228 replaces section 6 of the 1987 Act with a revised version that covers the same ground, but in clearer terms. It is important that the terms are as clear as possible. The proposed new section provides that, where an application to dismiss a transfer charge is to be made orally, written notice should first of all be given, which is important. That is to prevent the disruption of court listing schedules. There is also an explicit power to make court rules to cover such matters as the form of notices and other documents, time limits and the procedures to be followed. Finally, the proposed new section, which covers the same ground but in clearer language, improves the description of the documents that will accompany the notice of transfer.

The right hon. and learned Gentleman asked why we are changing the provisions under which a person charged with fraud—this is an important issue—whose case in transferred to the Crown court may apply orally or in writing to a judge for the charges to be dismissed. Amendment No. 228 does not effect the defendant's right to make such an application, orally or in writing. In drafting the rules, we realised that it would be sensible when the defendant decides to exercise his right to make an oral application that he should give notice in advance of his intention to do so. Amendment No. 228 simply allows the rules to include such a requirement.

Mr. Archer

The Minister, with his characteristic kindness, said how clearly I put the case—

It being Ten o'clock,. further consideration of the Bill stood adjourned. That, at this day's sitting, the Criminal Justice Dill [Lords]may be proceeded with, though opposed, until any hour.— [Mr. Maclean.]

Question again proposed, That the amendment be made.

Mr. Archer

The Minister, with characteristic kindness, complimented me on how I had put the case, and then proceeded to demonstrate how I had totally failed to make clear to him the point I was seeking to make.

I accept that, in most respects, amendment No. 228 is a restatement of section 6, but it does not restate it on one vital issue. Section 6 states that, if a judge makes an order that a witness shall attend to give oral evidence and he does not do so, the statement shall be disregarded unless the judge orders otherwise. Amendment No. 228 says that, if the judge makes that order and the witness does not attend, the judge may regard or disregard the statement. In a matter of evidence, what would be onus of proof is here onus of demonstration—if I may coin a phrase—and it has now been changed. That was the point I was trying to make.

Mr. John Patten

Perhaps the right hon. and learned Gentleman and I should appear on "Mastermind" together on this interesting issue.

In response to the right hon. and hon. Gentleman's question, the change that the amendments make is to give the judge discretion to disregard a written statement. I believe that it is right to give the judge such a discretion to make it clear that he is within his rights to disregard the evidence, but that he is not required to do so by the amendment.

Amendment agreed to.

Amendments made: No. 227, in page 90, line 17, leave out 'the person charged' and insert 'a person to whom the notice relates'.

No. 228, in page 90, line 25, at end insert— '(5) The following section shall he substituted for section 6—

"Applications for dismissal. 6.—(1) Where notice of transfer has been given, any person to whom the notice relates, at any time before he is arraigned (and whether or not an indictment has been preferred against him), may apply orally or in writing to the Crown Court sitting at the place specified by the notice of transfer as the proposed place of trial for the charge, or any of the charges, in the case to be dismissed; and the judge shall dismiss a charge (and accordingly quash a count relating to it in any indictment preferred against the applicant) if it appear; to him that the evidence against the applicant would not be sufficient for a jury properly to convict him. (2) No oral application may be made under subsection (1) above unless the applicant has given the Crown Court sitting at the place specified by the notice of transfer as the proposed place of trial written notice of his intention to make the application. (3) Oral evidence may be given on such art application only with the leave of the judge or by his order, and the judge shall give leave or make an order only if it appears to him, having regard to any matters stated in the application for leave, that the interests of justice require him to do so. (4) If the judge gives leave permitting, or makes an order requiring, a person to give oral evidence, but he does not do so, the judge may disregard any document indicating the evidence that he might have given (5) Dismissal of the charge, or all the charges, against the applicant shall have the same effect as a refusal by examining magistrates to commit for trial, except that no further proceedings may be brought on a dismissed charge except by means of the preferment of a voluntary bill of indictment. (6) Crown Court Rules may make provision for the purposes of this section and, without prejudice to the generality of this subsection—

  1. (a) as to the time or stage in the proceedigs at which anything required to be done is to be done (unless the court grants leave to do it at some other time or stage);
  2. (b) as to the contents and form of notices or other documents;
  3. (c) as to the manner in which evidence is to be submitted; and
  4. (d) as to persons to be served with notices or other material.".'— [Mr. John Patten.]

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