Criminal Justice Bill

HL Deb 12 May 1987 vol 487 cc575-606

5.15 p.m.

The Earl of Caithness

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Corn mittee.—(The Earl of Caithness.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD AYLESTONE in the Chair.]

Clause 1 [The Serious Fraud Office]:

Lord Elwyn-Jones moved Amendment No. 1:

Page 2, line 15, after ("him") insert ("on reasonable grounds")

The noble and learned Lord said: This is the first of a number of amendments which have been tabled by the opposition parties to Part I of the Bill. We would have greatly liked to have scrutinised the Bill thoroughly and taken it through its usual stages during which it would have been considered line by line. We are, however, in unusual circumstances. Because of our determination to take steps to combat serious fraud of the type which has been increasingly exposed and which has, also, been going unpunished, we have agreed that we shall support the steps to be taken to combat it by giving a fair wind to Part I of the Bill.

We have put down amendments and we believe that the debate will show that at least some of them, which the Government have indicated they may well be willing to accept, will improve the protection of the individual appearing before the courts. That is the motivation of identifying some of them, even in these exceptional circumstances. Nevertheless we face a risk in the procedures being followed today that constitutional harm may be done in an exercise of a kind which, in effect, drives a coach and four through our customary and necessary procedures and functions and our scrupulous care for the protection of civil liberties. That is a price which, alas, in these exceptional circumstances we have to pay.

Amendment No. 1 has, as its object, to require the Director of the Serious Fraud Office before mounting an investigation to have what appear to him to be reasonable grounds for doing so and only to act in those conditions. The amendment would harmonise with the conditions which are imposed on the exercise by the director of his Clause 2 powers. For example, under Clause 2 the director's powers are, under subsection (2), exercisable, but only for the purposes of an investigation under section 1 above, in any case in which it appears to him that there is good reason to do so for the purpose", of the investigation. Therefore the individual has that safeguard before he becomes subject to the strong powers which the director is given under Clause 2.

Similarly there is a limitation on the exercise by the director of the powers under Clause 2 to require individuals to attend before him and be questioned. The director must have "reason to believe" that the individual whom he requires to attend has relevant information to give. Thus, as Clause 1(3) stands, the director could mount his investigation without the amendment I move, even though he had no reasonable grounds for the belief that the suspected offence involved serious or complex fraud. It is true that he could not avail himself of the exceptional powers under Clause 2 unless it appears to him that there is a reason for doing so, but that would not prevent him investigating without having recourse to these powers.

In addition, the inclusion of the words in the amendment "on reasonable grounds", would be consistent with the limitations on the director of the exercise of his Clause 2 powers. It would make clear and express what was elsewhere indicated to be necessary by the use of the words: there is good reason to do so".

I submit that it is necessary to make that requirement clear and that the director should not exercise any of his powers under this part of the Bill unless there appear to him to be reasonable grounds for doing so. I submit that this is a useful, tidy, sensible and helpful amendment. I beg to move.

Lord Denning

I hope that the Committee will not accept this amendment. The words "to him" appear in our legislation time after time. They give a discretion which is not challengeable in the courts and which ought not to be challengeable. If the words "on reasonable grounds" are inserted, there will be challenges by way of judicial review and the like. This is a special matter for the director. After all, he is the director of the Serious Fraud Office and surely it is for him to decide. He must investigate only offences which appear to him to involve serious or complex fraud. Surely the decision whether or not to investigate can be left to him.

The Earl of Caithness

It is somewhat of a tragedy that, after the tremendous support given to me by the noble and learned Lord in respect of the previous legislation. I now seek to disagree with him. I fully understand the wish of the noble and learned Lord, Lord Elwyn-Jones, to ensure that SFO investigations are undertaken only on reasonable grounds. Our own fair assumption was that the director would, in any event, act reasonably and with circumspection before involving himself in investigations. However, we see no difficulty about making clear this foundation for action on the face of the Bill, and can accordingly recommend to the Committee that the amendment be accepted.

Lord Elwyn-Jones

I am- grateful to the noble Earl and it will give a fair wind to what will follow.

On Question, amendment agreed to.

[Amendment No. 2 not moved.]

Clause 1, as amended, agreed to,

Clause 2 [Director's investigation powers]: [Amendment No. 3 not moved.]

The Earl of Caithness moved Amendment No. 4:

Page 4, line 35, after ("him") insert ("(a)").

The noble Earl said: In the Second Reading debate on the Bill in this House the noble and learned Lord, Lord Roskill, criticised the inhibition in Clause 2(8) on using compulsorily obtained information in court against the provider of that information. I said then that in this respect we had not followed the precedent in companies' legislation and the Financial Services Act under which statements made to DTI inspectors in the exercise of their powers were admissible as evidence of those making them. However, I promised to reflect further upon what had been said, and in particular about any doubt which the terms of Clause 2(8) might raise about the admissibility of statements made to the Serious Fraud Office which are inconsistent with the account given by the accused in court. This amendment is the product of our reflections.

Under the present law, if a witness, including the defendant, gives evidence of a fact directly relevant to the subject matter of the charge he can be cross-examined on the basis that on some previous occasion he had made an inconsistent statement. As I understand it, this rule applies to statements of every kind, including statements not taken on oath or under caution.

We think that it is important to put beyond doubt the admissibility of statements made to the Serious Fraud Office in the same way. However, the primary safeguard of Clause 2(8) will remain. If a defendant chooses not to give evidence in court, or gives answers consistent with those that he gave during an early investigation by the Serious Fraud Office, no statement made to the SFO will be admissible in evidence against him.

This is not what the noble and learned Lord, Lord Roskill, called for. However, as I said on Second Reading, we are hesitant to adopt the course he suggested because to do so might appear to infringe the principle that the accused should not be required to incriminate himself. However, where the defendant gives evidence in court it seems perfectly sensible that his credibility should be able to be tested against lawfully obtained information supplied to the SFO under its statutory powers. Evidence of inconsistency will not of course tell the jury which story is true; nor is the jury obliged to believe either version. The purpose of the exercise will be to test the credibility of the witness.

In short, the purpose of these amendments—I should have told the Committee that I am also speaking to Amendment No. 5. and I apologise for not having done so earlier—is to remove any doubt that there may be about the admissibility of inconsistent statements so that suspects cannot play games with the SFO or the court, and to preserve the general safeguard against admissibility of statements made to the SFO by the accused, which Clause 2(8) provides. I beg to move.

On Question, amendment agreed to.

The Earl of Caithness moved Amendment No. 5:

Page 4, line 36, at end insert ("or (b) on a prosecution for some other offence where in giving evidence he makes a statement inconsistent with it.").

On Question, amendment agreed to.

[Amendment No. 6 not moved.]

Lord Irvine of Lairg moved Amendment No. 7:

Page 5, line 16, at end insert ("provided that where such failure is on the grounds of reasonable belief that compliance would or would tend thereby to incriminate him such belief shall constitute such reasonable excuse.")

The noble Lord said: The purpose of the amendment is to ask the Government to state their position unequivocally in relation to the privilege against self-incrimination. Clause 2 removes the traditional right to silence. Anyone suspected of serious or complex fraud can be made subject to questioning, as can anyone whom the director has reason to believe has relevant information. I refer to Clause 2(1) and (2).

5.30 p.m.

Under Clause 2(13), anyone who does not comply with any requirement under the clause—for example, anyone who fails to answer questions or give information—commits a criminal offence. I move this amendment in order to ask: where stands the privilege against self-incrimination? That privilege traditionally applies to a witness in court proceedings. He does not require the privilege before court proceedings begin because he has an absolute right to silence. However, the defendent's right to silence disappears under this part of the Bill. He can be compulsorily questioned.

Clause 2(8) provides that a statement by a person in response to a requirement imposed by virtue of this section may only be used—and I emphasise "only"—in evidence against him on a prosecution for an offence under Clause 2(14). That is the offence of failure, without reasonable excuse, to answer questions. The statement as such cannot be used against him on his prosecution for an offence of fraud. However, that in no way protects him from incriminating himself. The answer to a particular question may well immediately lead the director on to other information and other evidence which could without restriction be used against the defendant at his trial and have the effect of securing his conviction.

There is a question of principle here which I would submit should be determined in this Committee and not handed over to the courts for decision. The question is this. Is the individual who is being compulsorily questioned by the director, and compulsorily questioned under threat of criminal sanction, to be entitled to say at some point, "No, I will not answer that question because I say that the answer will have a tendency to incriminate me because of where it may lead"? Reading Clause 2(13), it provides that: Any person who without reasonable excuse tails to comply with a requirement imposed on him under this section shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale or to both".

The words, "without reasonable excuse" are there. I pose this question. Is it a reasonable excuse that the answer to the question may have a tendency to incriminate because it will lead the director to other incriminating evidence? I would submit that it is no answer to say, "Leave it to the courts to decide."

It is a question of principle for this Committee to decide whether a reasonable belief that a particular answer will tend to incriminate in the way that I have supposed and whether that reasonable belief should or should not constitute a reasonable excuse under Clause 2(13). I would think it should, but in any event I would invite the Government to state where they stand on this matter of principle which it appears ought to be decided in this Committee.

I would also make this prediction. If this provision remains as it stands, the courts may well say, "If Parliament had intended anything as well known as the privilege against self-incrimination, it would have said so in clear words. It did not say so and therefore it cannot have intended that and therefore we, the court, hold that 'reasonable excuse' comprehends no more than an inability to answer for some reason but not an unwillingness." I contrast inability with unwillingness to answer because of where the answer would lead the director. It seems that this is a question of principle on which we should have an answer.

Perhaps I may make it entirely plain before I sit down that I would not seek to divide the Committee on this amendment; but it is an important issue of principle on which a clear statement would be most welcome.

Lord Denning

I would be against this amendment. The privilege against self-incrimination has often been abused. A person often says he does not want to incriminate himself because he does not want to be incriminated. But in a way it is much better in this legislation to leave it simply on the ground, "without reasonable excuse", without making a special exception in regard to incrimination. Let that be dealt with by the judge who is always and ever dealing with the matter.

Lord Hutchinson of Lullington

I should like to support this amendment which has been moved so ably, if I may say so, by the noble Lord, Lord Irvine. "Any person" is the phrase used in this clause: Any person may be required to answer questions under pain of six months' imprisonment if he refuses to answer. It is not only the person under investigation who is concerned. The draconian powers given to the inspectors or the personnel of the director's office here are tremendous in their scope. It is not only the suspect or the person under investigation who has to answer questions under pain of imprisonment. It is "any person", and that "any person" may be a completely innocent potential witness who the director thinks has some relevant evidence. The discretion of the questioning is entirely and solely in the hands of the director. If he thinks reasonably, that any person has relevant information, that person can be brought before the inspector and interrogated, under pain of imprisonment if he does not reply.

The protection which will be put forward by the Government is to be found in Clause 2(8). There it is said that any statement made during this interrogation cannot be used in criminal proceedings. That of course is a very strong protection and one which this Committee will remember was objected to strongly by the noble and learned Lord, Lord Roskill, at Second Reading.

That is the only protection such a person has; but, as every lawyer in the Chamber will know, documents or information which may be disclosed as a result of this interrogation will not be covered by Clause 2(8). Documents and information will be held to be admissible on the precedents, with the greatest respect to the noble and learned Lord, Lord Denning, who has just said, "Leave it to the judge". If it is left to the judge, those documents and that information will be held to be admissible, and those documents and that information may be, on the face of it, incriminating or potentially incriminating evidence, not against the criminal but against the innocent person. Therefore I would support this amendment because it would appear that the documents and information that come from the interrogation have been lost sight of in this clause.

On the question of reasonable excuse, I would support what has just been said because certainly in criminal law the interpretation of the phrase "reasonable excuse" has tended more and more to be inability—not being able to comply—rather than ever having a discussion in court as to the inherent reasonableness of the excuse put forward. Therefore that is very small protection for the person being so interrogated. On those grounds, I should like to add to what has been said already in support of this amendment.

Baroness Phillips

The noble Lord, Lord Hutchinson, has again said, "Every lawyer in the Chamber knows". We are not all lawyers. I constantly find throughout the discussions on Bills such as this Criminal Justice Bill that the whole of the legally-trained Members of your Lordships' Chamber address everybody else as though they were equally part of that profession. Sitting here, remembering my experiences as a magistrate, I got the impression that many of the lawyers were there simply to confuse the people who sat on the Bench. I used to think at the beginning of a case that I knew what it was about. After I had listened for an hour to someone like the noble Lord, Lord Hutchinson, I did not know what it was about. I should just like to ask him to explain how an innocent person can incriminate himself. I cannot follow that logic. If one is innocent, any question that one answers cannot possibly be incriminating and result in being charged with an offence. Perhaps he can explain how that can be the case.

Lord Edmund-Davies

For the reasons that have already been stated, I venture to support this amendment. Apart from the very pungent point made by the noble Lord, Lord Hutchinson of Lullington, in relation to "any person" mentioned at the beginning of subsection (13), we have to postulate under Amendment No. 7 as originally drafted the grounds of reasonable belief entertained by any person, whether he is a party or not, and that if compliance would or would tend thereby to incriminate him such belief shall constitute such reasonable excuse". Yet when examining the matter, if some Olympian person or judge comes to the conclusion that the honestly held belief in point of actuality was not a reasonable excuse, notwithstanding that conclusion the accused is liable to be sentenced to six months' imprisonment. That does not seem to me to be justice, and accordingly I support the amendment.

The Earl of Caithness

This amendment goes to the very heart of one of the major difficulties that we must address in legislating for the Serious Fraud Office to have the powers which are effective in rooting out fraud but are not oppressive toward those whose affairs are investigated. It is understandable that there should be concern about the position of the suspect and the consequences of self-incriminating answers given in the face of the compulsory powers in Clauses 2(2) and 2(3). The Government have given much thought to this. Our starting point is that these powers are necessary if the SFO is to be able to clear the trail of a complex fraud. The accumulation of documents and answers to a wide range of questions is vital; that is why we have opted for compulsory powers with a criminal sanction for non-compliance on the model of the powers exercised by DTI inspectors under the Companies Act and the Financial Services Act.

But there is one significant respect in which we have not followed the approach in companies legislation. In my view it goes a good way toward meeting the concern that has been so well expressed by the noble Lord, Lord Irvine., which underlies this amendment.

Under the Companies Act 1985—and I refer to Section 447(8)—and the Financial Services Act 1986, Section 105(5), statements made in compliance with the compulsory requirements are in due course admissible as evidence against those making them. Under Clause 2(8) such statements will not generally be admissible as evidence against those making them, although, if they are inconsistent with an account that the defendant chooses to give in court, we believe that the normal rules about prior inconsistent statements might result in their admission.

The effect of all this is that in questioning suspects the SFO will be able to operate in two ways. If the suspect is willing to answer questions voluntarily, he will be formally cautioned by the police or perhaps a member of the SFO and his statement, subject to the usual rules of admissibility, will be able to be used in evidence against him. That can be done under existing powers without any need for new provision.

If he is unwilling to answer questions voluntarily, he will be required to do so using the powers in Clause 2 but his answers will not be admissible as evidence against him in any subsequent trial. That seems to us to be a sensible balance. It maximises the SFO's ability to obtain the information that it needs, including information from suspects, but it preserves the right of the suspect not to have incriminating answers used in evidence against him.

Of course, the defence of "reasonable excuse" can always be raised in an individual case. Indeed, the court has recently shown its ability to address the precise point on the facts of an individual case in relation to journalistic material held in confidence. It must be right to leave the courts free to take a view on these matters rather than to impose a blanket defence on those from whom the SFO must be able to require information if it is to do the job that we all want it to do. I am sure that on that point there is no disagreement between any Members of the Committee.

It is for the reasons that I have outlined that at the moment we are unable to accept the amendment that has been moved.

Lord Hutchinson of Lullington

I should like to ask the Minister a question. Throughout his answer he has referred to "the suspect". The whole point of this amendment is that it deals with the innocent person who is not a suspect but is simply interrogated because he is thought to have relevant evidence. That is the distinction that we have made.

The Earl of Caithness

Although I used the word "suspect", my arguments must of course run for the case that the noble Lord has mentioned just now.

Lord Irvine of Lairg

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2, as amended, agreed to.

5.45 p.m.

Clause 3 [Disclosure of information]:

The Earl of Caithness moved Amendment No. 8:

Page 7, line 17, at end insert ("(bb) the Accountant in Bankruptcy;").

The noble Earl said: I beg to move Amendment No. 8. Clause 3(6) lists those who are specified as competent authorities to which information may be disclosed by the Serious Fraud Office. The amendment adds to that list the Accountant in Bankruptcy who is the Scottish equivalent of the Official Receiver. I am hopeful that the noble Lord opposite will welcome this amendment. I beg to move.

On Question, amendment agreed to. Clause 3, as amended, agreed to.

Clause 4 [Notices of transfer and designated authorities]:

The Earl of Caithness moved Amendment No. 8A:

Page 8, line 18, leave out ("(4)") and insert ("(3) and (7A)").

The noble Earl said: I beg to move manuscript Amendment No. 8A, and at the same time I should like to speak to manuscript Amendment No. 8B. These are largely technical amendments. They ensure that the witness order provisions applying in committal proceedings are applied in similar circumstances to those whose written statements are included in evidence in transferred statements; that is to say that a magistrates' court may make a witness order for the witness's subsequent attendance at a crown court trial. I beg to move.

On Question, amendment agreed to. Clause 4, as amended, agreed to.

Clause 5 [Notices of transfer—procedure]:

The Earl of Caithness moved manuscript Amendment No. 8B:

Page 9, line 31, at end insert ("(7A) For the purposes of the Criminal Procedure (Attendance of Witnesses) Act 1965–

1. (a)any magistrates' court for the petty sessions area for which the court from which a case was transferred sits shall be treated as examining magistrates' and
2. (b)a person whose written statement is tendered in evidence for the purposes of the notice of transfer shall be treated as a person who has been examined by the court.").

The noble Earl said: I beg to move. On Question, amendment agreed to.

[Amendment No. 9 not moved.]

Clause 5, as amended, agreed to.

Clause 6 [Dismissal of transferred charge]:

Lord Hutchinson of Lullington moved Amendment No. 10:

Page 10, line 23, after ("written") insert ("or oral").

The noble Lord said: This is a very short amendment and concerns a very short point, which is to make sense of Clause 6(6). Clause 6 deals with the application by a defendant whose case has been transferred directly to the Crown Court under Clause 4 without any committal proceedings before the justices and it is an application which can be made to the judge to have the case dismissed on the ground that the evidence produced by the prosecution is insufficient to justify a trial. That is a submission which would normally be made to the magistrates. This is the shortened procedure and the submission is made to the judge in the Crown Court. This is, of course, an important right which, as I said, is normally made before the magistrates. It is particularly important in complex fraud where thousands of pounds in costs and months of suspense may be avoided by throwing out a weak case at that stage.

Under Clause 6(1), an application can be made orally or in writing. Under Clause 6(6), we find spelt out the considerations to which the judge should have regard when he is deciding whether or not to throw it out. It reads:

1. "(a) to the evidence tendered by the prosecution;
2. (b) to any written statement tendered by the defence … and
3. (c)to any oral evidence on behalf of the prosecution or the defence".

One does not see there any reference to an impassioned appeal by the advocate to the judge asking him to dismiss the case. Therefore I am submitting in this amendment that the word "oral" should follow the word "written" in subsection (6) (b) so that the paragraph will read, "to any written or oral statement".

I beg to move.

Lord Renton

This is a short but important point and the noble Lord, Lord Hutchinson of Lullington, has given very strong reasons in favour of it. I wish to support him.

The Earl of Caithness

I understand the concerns of the noble Lord, Lord Hutchinson of Lullington, who is supported by my noble friend Lord Renton. However, I am advised that the very fear that the noble Lord has is catered for by Clause 6(6) (c), to which he referred a moment ago. Therefore his amendment is unnecessary.

Lord Renton

No, with great respect that cannot be so, because there is a difference between evidence given orally and statements made orally but not on oath. Those advising my noble friend have obviously overlooked that difference.

Baroness Phillips

Perhaps one of these noble Lords who have all the explanations for every Act of Parliament could assist. The paragraph reads: to any oral evidence on behalf of the prosecution or the defence". What is the difference between a statement and evidence?

Lord Renton

If I may say so, there is a great deal of difference. One is made on oath and the other is not.

Lord Hutchinson of Lullington

I should be extremely upset if I made a submission to a judge and then was submitted to a sharp cross-examination by my opponent because I had given evidence which on the face of it was not true.

The Earl of Caithness

I hope that I can clarify the situation for the Committee. As I understand it, the procedure does not allow for oral application. The procedure should be in writing. Therefore the word "oral" does not apply.

Lord Hutchinson of Lullington

With the greatest respect to the Minister, if he looks at Clause 6 he will see (1) Where notice of transfer has been given, the person charged may at any time before he is arraigned apply orally or in writing to the Crown Court for the charge to be dismissed". That is precisely opposite to what the Minister has just said.

Lord Renton

As the noble Lord said, for years it has been the practice of the courts to allow oral statements to be made either by the accused or by an advocate on his behalf, whether a barrister or a solicitor. Are we really, by a backdoor method, going to change that long-established procedure? It would be sheer nonsense to try to do so and the noble Lord's amendment makes sure that we are not doing so.

Lord Edmund-Davies

It will add greatly to the complexity of the advocate's role if he is to be stopped from letting out all he has to address to the court. He would die of apoplexy. It is a great danger.

The Earl of Caithness

I think that the time has come to tell your Lordships that I have given this amendment very careful consideration. I feel that the noble Lord has a point and I am very happy to accept his amendment.

On Question, amendment agreed to.

Clause 6, as amended, agreed to.

Clause 7 [Power to order preparatory hearing]:

The Earl of Caithness moved Amendments No. 11 to 14:

Page 10, line 33, leave out from ("beginning") to ("it") in line 34.

Page 10, line 34, leave out ("of the offence charged") and insert ("on an indictment").

Page 10, line 46, leave out ("defence") and insert ("person indicted or, if the indictment charges a number of persons, any of them").

Page 11, line 8, leave out ("defence") and insert ("person indicted or, if the indictment charges a number of persons, any of them").

The noble Earl said: I beg to move Amendments Nos. 11 to 14 and, at the same time, will speak to Nos. 15, 17, 18, 19, 20, 21, 22, 24, 26, 27, 28, 29, 30, 31, 32, 33, 34 and 35. These amendments are mainly related to a single issue and arise from discussions with the Criminal Bar Association. It suggested that the use of the word "defence" throughout Clauses 7 to 10, which allowed a court to impose obligations at the preparatory hearing, meant that a defence lawyer could be facing conflicting orders from the court and his client. These amendments replace "defence" with "the defendant" and separate counsel and solicitors from such a conflict.

I am sorry that these amendments seem to be inordinately complex to achieve a single, though very important, distinction between the defendant and his lawyer. They must, of course, also take account of those cases where there are two or more defendants or several counts on the indictment. The last amendment is a drafting alteration to clarify the way in which periods of time may be set for compliance with orders for specific preparatory hearing work. I beg to move.

On Question, amendments agreed to.

Clause 7, as amended, agreed to.

Clause 8 [Commencement of trial and arraignment]

The Earl of Caithness moved Amendment No. 15:

Page 11, line 16, leave out ("The person charged shall accordingly be arraigned") and insert ("Arraignment shall accordingly take place")

On Question, amendment agreed to.

Clause 8, as amended, agreed to.

Clause 9 [The preparatory hearing]:

The Earl of Caithness moved Amendment No. 16:

Page 11, line 19, at end insert— ("(1 A) The judge may adjourn a preparatory hearing from time to time.")

The noble Earl said: This amendment simply puts beyond doubt the judge's power to adjourn a preparatory hearing as he could adjourn the trial once a jury is called in. I beg to move.

Lord Renton

I am terribly apologetic about taking up any time at this late stage of this Parliament, but I understand that judges have always had power to adjourn cases at any time and it surprises me that this amendment is at all necessary.

On Question, amendment agreed to.

The Earl of Caithness moved Amendments Nos. 17 to 22:

Page 11, line 25, leave out ("defence") and insert ("defendant or, if there is more than one, each of them")

Page 11, line 32, leave out ("each count") and insert ("any of the counts")

Page 11, line 37, leave out ("to the court and the defence in that form") and insert ("in that form to the court and to the defendant or, if there is more than one, to each of them")

Page I I, line 39, leave out ("defence") and insert ("defendant or, if there is more than one, each of them")

Page 11, line 46, leave out ("defence") and insert ("defendant or, if there is more than one, by any of them")

Page 12, line 2, leave out ("defence") and insert ("defendant or, if there is more than one, each of them")

On Question, amendments agreed to.

6 p.m.

Lord Hutchinson of Lullington moved Amendment No. 23:

Page 12, line 3, leave out from ("a") to end of line 6 and insert ("statement in writing setting out in general terms the nature of his defence and indicating the principal matters on which he takes issue with the prosecution:")

The noble Lord said: In our view, on this side of the Committee, this is by far the most important amendment affecting Part I of the Bill. It deals with the degree to which an accused person may be ordered by the trial judge to disclose the particulars of his case before his trial begins. Whereas we are totally committed to the efficient and effective investigation and prosecution of serious fraud, and are anxious to see Part I of this Bill on the statute book, we are equally committed to the maintenance of civil rights. Clause 9(4) raises fundamental questions affecting the right of silence and the onus of proof, which go to the very heart of a criminal trial. As drafted paragraph (i) is unacceptable to us. Therefore, we have tabled this amendment.

The amendment which is now tabled is a fresh version of the amendment we originally tabled; it replaces the original Amendment No. 25. If I understand the situation correctly following prolonged negotiations, it may well be that this amendment which I now move proves acceptable to the Government. If that is the case, we should be most grateful for their appreciation of our very genuine concern.

Clause 7 introduces a new power enabling a judge at trial to order what is called a preparatory hearing before the trial proper. The purpose of that is to identify the issues, settle matters in dispute as to the law and admissibility of evidence and generally to get the whole case into a clear, slimmed-down state fit for a jury to try and fit to present to a jury. That is in every way an admirable aim.

Clause 9 with which we are dealing, sets out the judge's powers at that preparatory hearing. Under Clause 9(3), he can order the prosecution to supply a case statement which should set out their case in detail. Under Clause 9(4)(b) he may order the defence to disclose a number of matters set out in that clause in paragraphs (i), (ii), (iii) and (iv). It is paragraph (i) that this amendment deals with.

The mischief lies in Clause 9(4)(b)(i), coupled, as it is, with the Sanctions in Clause 10 that arise for noncompliance with the order of the judge. The wording of the present Clause 9(4)(b)(i) is that a judge may order the defence: to give the court and the prosecution a written summary of the defence case in response to each of the principal allegations in the case statement". that is by the prosecution specifying the principal facts upon which the defence propose to rely".

The Government have reiterated that they have no wish to undermine the accused's right of silence nor to derogate from the fundamental principle of the criminal law that it is for the prosecution to prove the case to the satisfaction of the jury. But to demand of the defence before the trial begins those particulars which I have just read out is to make substantial inroads into the accused's right of silence. If those facts depend on the knowledge and the observation of the accused himself, must that not force him into the witness box? That would mean that the prosecution could trim their case before trial and put each item of the defence case to their witnesses, who might then adjust their evidence accordingly.

That matter was raised by the Roskill Committee—it greatly troubled them—at paragraph 6.75. I would suggest that it might put defence counsel into an impossible position if he has a duty to the court to disclose and to obey the judge's direction and also has a duty to the client to act on his instructions, which might be not to disclose. No advocate should be put in a position where he must indicate to the prosecution where lie the defects in the prosecution's case; nor should he be put under a duty to strengthen the case against his own client. Our system remains adversarial; it has not yet become inquisitorial. For example, if the accused elects to give no evidence, under the clause as at present drafted he might be convicted of the offence simply for failing to comply with the order of the judge under the sanctions in Clause 10. It would seem likely that the prosecution would soon concentrate on discrediting the defence case rather than on proving its own.

For all those reasons—and there are many others—in our opinion, this subsection is unacceptable. Nevertheless, we take the view that in the fight against serious fraud—which we support to the hilt—the defence should be expected to assist in the proper administration of justice. They should make a general disclosure of their case or, as the Roskill Report put it, at paragraph 6.82, disclose the nature of their case in general terms, thus avoiding the prosecution being taken by surprise when the defence put forward their case; but at the same time the right of silence and the duty of the prosecution to prove the case should be preserved in their entire integrity.

This amendment achieves both those ends. It means that the defence do not have to give a line-by-line detailed reply to the prosecution case statement, which statement can be made as detailed as the prosecution care to make it. It means that the defence must define in writing the general nature of their case and identify the principal issues which in their view will arise during the trial.

On that basis, I propose this amendment. I must add, however, that we take the view, and always have done, that Clauses 9 and 10 go together, for in Clause 10 we find the sanctions for failure to comply with the direction of the judge in Clause 9. In due course I shall be moving Amendment No. 37A which we believe follows on from this clause as amended. I merely say that in order to indicate now what is to come. In those circumstances, I beg to move.

The Deputy Chairman of Committees (Lord Alport)

I have to advise your Lordships that if this amendment is agreed to, I shall not be able to call Amendments Nos. 24, 25 or 26.

Lord Elwyn-Jones

I rise to support the amendment. I do so with absolute reliance upon its importance. In view of the stress which we place upon it—this was communicated to the noble Lord opposite—we made it clear that if there was no giving ground on this, it might put in peril our whole attitude towards Part I of the Bill. I feel I should say that. I am sure that the noble Lord, Lord Hutchinson, was not seeking to indicate that this was merely a brilliant suggestion emanating from the Alliance Benches, because we have made this a condition of our agreement. As the noble Lord, Lord Hutchinson, in his admirable speech indicated, the traditional principle of the criminal law has been that the defendant is under no obligation to co-operate with the police or the prosecuting authorities and that at the trial he can require the prosecution to prove its case beyond reasonable doubt without advance disclosure of the defence, which the prosecution learns only as it gradually unfolds during the cross-examination. However, we accept that in serious and complex fraud cases of the kind with which the Bill is concerned the defence should exceptionally make known in general terms the nature of its case in advance of the trial.

The reasons which have been adumbrated by the noble Lord, Lord Hutchinson, so clearly and so forcibly are overwhelming. The requirement in the clause as it now stands, which is that the defence may be ordered: to give the court and the prosecution a written summary of the defence case in response to each of the principal allegations in the case statement, specifying the principal facts upon which the defence propose to rely", would impose an intolerable and, I submit, an unfair burden upon the defence. The alternative now proposed in the amendment moved by the noble Lord, Lord Hutchinson, remedies the matter to a considerable degree and receives our support.

The Earl of Caithness

It is always nice at this time to see such solidarity between the Labour Party and the Alliance. That is well to be noted.

The amendment bears on perhaps what is the most sensitive aspect of the preparatory hearing process; namely, the fact that to assist in the hearing the defendant can be required to disclose an outline of his defence. It is also an essential part of the process because without the co-operation of the defendant the preparatory hearing will not yield the considerable benefits which the Roskill Committee foresaw. Those benefits are, as the members of the Committee will recall, that points of law will be able to be resolved in advance of the jury being sworn, that issues which are not in dispute are identified and that those issues which are in dispute are presented in a form that should ease the task of the jury.

If the defendant were able to opt out of the preparatory hearing, it would be a case of Hamlet without the prince. We therefore attach considerable importance to the defendant being required to play his part in the preparatory stage and, like the Roskill Committee, we do not believe that such a requirement would infringe on the right to silence. Nevertheless, we are ready to consider the terms in which the requirement on the defence is expressed. I am grateful to the noble Lord, Lord Hutchinson of Lullington, and to the noble and learned Lord, Lord Elwyn-Jones, for explaining the purpose of their amendments so clearly. Indeed, as both of them said, there has been some discussion on this matter in advance.

The amendment would make the requirement on the defendant a little less specific than it is in the Bill as it stands, but it would preserve the essence of what we and the Roskill Committee had in mind. On the whole it seems to us to be an improvement on the original, and I am glad to be able to say that the Government would not wish to stand in the way of the amendment being made.

Lord Renton

Before any other noble Lord gets up to thank my noble friend, I wish to assure Members of the Committee that even under the amendment as we accept it the matter will not arise unless the judge in the exercise of his discretion (under line 2 of page 12) has decided that there is a prima facie case for the defence to answer. It is important that we should bear that in mind when such a new departure is taking place in our criminal procedure.

Lord Wigoder

I wish simply to comment that the solidarity to which the Minister referred is the solidarity not only of the Alliance who originated the amendment and the Labour Party who support it but apparently of the Government as well.

On Question, amendment agreed to.

[Amendments Nos. 24 to 26 not moved.]

6.15 p.m.

The Earl of Caithness moved Amendments Nos. 27 to 35:

Page 12, line 8, leave out ("they have") and insert ("he has").

Page 12, line 10, leave out ("the defence may wish") and insert ("he wishes").

Page 12, line 11, leave out ("they intend") and insert ("he intends").

Page 12, line 14, leave out ("they agree") and insert ("he agrees").

Page 12, leave out lines 23 and 24, and insert ("who will give evidence").

Page 12, line 26, leave out ("defence") and insert ("defendant or, if there is more than one, all of them").

Page 12, line 29, leave out ("defence") and insert ("person giving them").

Page 12, line 30, after ("require") insert ("him to give").

Page 12, line 31, after ("which") insert ("any specified requirement contained in").

The noble Earl said: I beg to move Amendments Nos. 27 to 35 en bloc.

On Question, amendments agreed to.

Clause 9, as amended, agreed to.

Clause 10 [Provisions relating to later stages of trial]:

The Earl of Caithness moved Amendment No. 36:

Page 13, line 3, leave out from beginning to ("other") in line 6 and insert ("Where there has been a preparatory hearing, any party may depart from the case which he disclosed at the hearing but, in the event of such a departure or of failure to comply with a requirement imposed at the hearing, the judge or, with the leave of the judge, any").

The noble Earl said: I beg to move Amendment No. 36 and at the same time speak to Amendments Nos. 39, 40, 41 and 42. These are drafting amendments. They are consistent with the objectives of other amendments which distinguish between defendant and defence counsel. They also alter the drafting of the clause to make clearer the safeguard which is provided, such as that the case for the defence disclosed at the preparatory hearing should be revealed to the jury only with the leave of the judge. I beg to move.

On Question, amendment agreed to.

The Deputy Chairman of Committees

I call the noble Lord, Lord Hutchinson of Lullington, to move Amendment No. 37. Is it not moved?

Lord Hutchinson of Lullington

I understand that there are four amendments grouped together. I should like to speak to all of them at the same time.

The Deputy Chairman of Committees

I am now calling Amendment No. 37, which is the first amendment under the noble Lord's name. There are two other amendments, Nos. 37A and 37B, and my advice is that he wanted to call Amendment No. 37B.

Lord Tordoff

If the Chair will permit me, it is certainly proper, is it not, for the noble Lord, Lord Hutchinson of Lullington, to speak to Amendment No. 37 coupled with the other amendments and perhaps seek the Committee's permission to withdraw that at a later stage so that general discussion on the whole area can take place.

Lord Hutchinson of Lullington

As I understand it, Amendment No. 37 is grouped with Amendments Nos. 37A and 37B, whch are manuscript amendments, and Amendment No. 38. With the leave of the Committee, I shall speak to all four. In due course, when the Government have replied, I shall seek to move one of them and not to pursue the others, if the Committee thinks that that is a proper procedure.

Lord Hutchinson of Lullington moved Amendment No. 37:

Page 13, line 7, leave out ("the jury may draw such inference as they think fit").

The noble Lord said: I move Amendment No. 37 while discussing with it Amendments Nos. 37A and 37B. This clause is, as I said, linked closely with Clause 9. It spells out the sanction which may arise if either party fails to comply with any requirement demanded by the judge under Clause 9 or if either party departs from the case disclosed before trial. This clutch of amendments indicates, as the Committee may well have guessed, an intense period of negotiation with the Government, as we feel strongly about the broad extent of the words appearing in the Bill at the moment.

I understand that it is possible that one of those amendments may still be found acceptable to the Government at this late stage. The right which is given to the jury as a result of a failure to comply with any requirement imposed on the defence at the preliminary hearing is set out in Clause 10(1), which reads thus: The prosecution and defence shall have a right, subject to subsections (2) and (3) below, to depart from the case disclosed by them at the preparatory hearing, but if they do so or fail to comply with any requirement imposed on them at the hearing, the judge or the other party may make such comment as appears to him to be appropriate and the jury may draw such inference as they think fit".

Those words are so broad that it would appear that, if they wished to do so, the jury would be entitled to draw an inference of guilt against the accused person simply and solely on the basis that he had failed to obey an order of the judge at the preliminary hearing. The words are, the jury may draw such inference as they think fit", or any inference of any kind that it would appear to them fit to draw in the circumstances. Those words in the statute, unvarnished as they stand, would leave the judge complete discretion to say to the jury, "You can draw any inference you think it fit to draw".

It is in order to limit those words that the various amendments have been put down. The circumstances might arise, for instance, in which there was very little evidence in a case—perhaps too little to satisfy the jury of guilt. But simply because of the behaviour of the accused in failing to comply with the judge's directions or failing to carry out some directions which he gave them over disclosure, the jury would be told—and the judge would only have to read out the words in the statute—that the jury might draw any inference they liked, if they saw fit, because of his attitude at the preliminary hearing.

In discussions with the Minister and the Government, an attempt was made to come to a compromise on Amendment No. 37, which simply seeks to leave out the whole of those words. An attempt was made in Amendment No. 37A to amend the words rather than to leave them out by adding the word "reasonable" before the word "inference". The line would then read: The jury may draw such reasonable inference as they think fit".

That would go some way to limiting what the jury could do; it would of course make it possible to take the matter to appeal if it were said in the summing up that they could draw an inference which, on the face of it, was unreasonable. They would therefore be in some way limited as to the inference they could draw.

That was one of the suggestions as to compromise which I understood, at a late moment this afternoon, would in all probability not be acceptable to the Government. Therefore, Amendment No. 37B was put down as a second manuscript amendment. That amendment adds the words "as appears proper" so that the line would read: the jury may draw such inference as appears proper", rather than the words: such inference as they think fit".

Lord Renton

Will the noble Lord be so kind as to explain—this is a complicated matter—whether he is not moving Amendment No. 37 as it stands on the Marshalled List but is moving an alternative to that amendment in Amendment No. 37B? I did not follow that.

Lord Tordoff

Perhaps I may assist the noble Lord. I think the position at the moment is that we are debating Amendment No. 37 and, along with that, Amendments Nos. 37A and 37B. That is a perfectly normal procedure in your Lordships' Committee. We await the Government's response to that group of amendments before my noble friend decides what he will do as regards Amendment No. 37. At that point, I believe that matters will become clear to the Committee. However, the debate is on the generality of that part of Clause 10.

Lord Renton

That is an unusual course but a sensible one in the circumstances. I have to confess that I find this subsection a bit of a muddle, even if it is not amended. However, the muddle that I find is not one which is dealt with by any of the amendments put down.

The Deputy Chairman of Committees

May I interrupt the noble Lord? Is he interrupting the speech of the mover? I have not yet called the amendment.

Lord Hutchinson of Lullington

I was listening, as I always do, with great respect to the noble Lord, Lord Renton; I was also wondering when he was going to come to the end of his interruption. I am glad that the procedure adopted has been described as a sensible one and in those circumstances I hope that the House will allow me to continue under that procedure and to await the reply of the Government before deciding which of the amendments I shall seek to move.

Dealing with Amendment No. 37B, which adds the words "as appears proper", if those words are more acceptable to the Government than the words in the previous amendment, then it would be a grain of comfort in that once again the power of the jury would be limited in some way to drawing an inference which appeared proper in all the circumstances; in other words, to draw an inference of guilt from the misbehaviour of the defendant in not complying with a direction would clearly not be proper, and one could argue on that basis, which would represent some progress in limiting the power. I do not mention Amendment No. 38, which I have no intention of moving in the circumstances.

The Deputy Chairman of Committees

The amendment proposed, page 13, line 7, is to leave out ("the jury may draw such inference as they think fit"). Also, I apologise to the noble Lord: I misread my instructions and I was wrong.

Lord Campbell of Alloway

May I briefly rise to support Amendment No. 37B? That amendment seems to me to be wholly proper, totally adequate and to afford no reasonable criticism of the Bill as it stands.

Lord Renton

May I now, with great humility, try to explain the difficulty that I have about this subsection, whether or not the amendments are accepted? If my noble friend could address his mind to that, as well as giving us the long-awaited reply to the noble Lord, Lord Hutchinson, I should be grateful.

Perhaps I may read the relevant part of the subsection. It says: the judge or the other party"— as I understand it, that means the prosecution or the defence— may make such comment as appear to him to he appropriate". The word "him" presumably can refer to the judge and must refer to him only. How, until he has heard them, is the poor judge to decide whether such comments are reasonable and therefore to be permitted? He cannot stop them until they have been made. I find this a great difficulty in the new procedure. I should have thought that the words "to him" could well be left out altogether. One has the expression "appropriate", anyway. I am not sure that "reasonable" adds much to it. Anything that is unreasonable will not be appropriate. Therefore, in my view Amendment No. 37A would be unnecessary.

Lord Hutchinson of Lullington

The word "reasonable" was to go in the later part of the clause, namely, the jury may draw such reasonable inference". It is not an amendment to: the judge or the other party". It is in respect of the jury.

Lord Renton

I am grateful to the noble Lord for his correction. The "reasonable" is more reasonable in the place mentioned by the noble Lord.

I come now to the intentions expressed by the noble Lord. Theia, is not very much in it either way, I should have thought. The real difficulty arises—we have no amendment for dealing with this—from the strange proposition that, the judge or the other party may make such comment as appears to him to be appropriate". This will give rise to difficulty in practice. If my noble friend can, quickly obtaining advice between now and Report, have this dealt with, it would help the noble Lord, Lord Hutchinson, I think, and would certainly help me.

6.30 p.m.

The Earl of Caithness

May I deal with the point of my noble friend Lord Renton first? As I understand the Bill, the words "to him" mean whoever is making the comment. It is not solely the judge; it could include the other party. It could be: the judge or the other party may make such comment as appears to the judge or the other party to be appropriate and the jury may draw such inference as they think fit as printed in the Bill before us. I hope that that clarifies the situation for my noble friend.

The sanctions for not complying with the judge's order at a preparatory hearing or departing without good reason from the case disclosed then are an aspect of the procedure to which the Roskill Committee gave a great deal of thought. The committee was in no doubt that the sanction on adverse comment should be available in appropriate cases. The committee at paragraph 6.82 of the report said: Any failure to disclose the defence outline at that stage should be capable of attracting comment from the prosecution and the judge of the trial. The jury should be entitled to take account of, and draw any appropriate inferences from, the defendant's failure to disclose a particular line of defence on which he relies at his trial.". Clause 10, as amended, is intended to meet that end. There would clearly be some cases where there would be no inference that the jury could sensibly draw. In others the fact that, for example, the defendant had changed his story in a very suggestive or self-serving way might well be a matter that the jury could reasonably regard as relevant to the credibility of the new account.

The government amendment, which I have just moved and which the Committee has accepted, tightens up the clause by allowing adverse comment by the parties only with the leave of the judge. This means that there will be a degree of judicial control on the process which I hope the noble Lord, Lord Hutchinson, will agree goes some way towards meeting the concern that he enunciated. One might also expect the judge to assist the jury in his summing up by guiding it on the kinds of inferences that it might be sensible for it to draw. Beyond that, we doubt whether it helps very much to try to define in statute the inferences that the jury can properly draw. Juries do not, generally speaking, operate in a legalistic way. They make up their minds according to the matters that have been placed before them.

I turn to manuscript Amendments Nos. 37A and 37B in the name of the noble Lord, Lord Hutchinson. As the noble Lord says, this has been the subject of some discussion outside the Chamber. We are not on reflection attracted by the idea of inserting the word "reasonable" as proposed in Amendment No. 37A because one cannot read the jury's mind. A requirement of reasonableness could lead to somewhat arid disputes on appeal.

However, we see attractions in Amendment No. 37B which proposes to alter the words at the end of the subsection so that the jury would be able to draw such inference as appeared proper rather than as it thought fit. This would be consistent with the language of Section 62 of the Police and Criminal Evidence Act 1984, which allows the court, when someone has refused to provide an intimate sample, to draw such inferences from the refusal as appear proper. It would, we agree, provide the judge with a peg on which he could hang guidance to the jury on what it might regard as constituting a proper inference.

I am therefore glad to say that we are able to accept Amendment No. 37B, supported by my noble friend Lord Campbell of Alloway. We hope that it will go a long way towards reassuring the noble Lord and that as a result he may be able to withdraw Amendment No. 37, not move Amendment No. 37A and move Amendment No. 37B, which I shall be pleased to accept on behalf of the Government.

Lord Hutchinson of Lullington

I thank the noble Earl for his co-operation. I say only that I fear it may not take me a long way along the road to reassurance; but it will take me a short way, for which I am grateful.

I therefore beg leave to withdraw Amendment No. 37. I shall not move Amendment No. 37A, and I propose to move Amendment No. 37B.

Amendment, by leave, withdrawn.

[Amendment No. 37A not moved.]

Lord Hutchinson of Lullington moved Amendment No. 37B:

Page 13, line 8, leave out ("as they think fit") and insert ("as appears proper").

On Question, amendment agreed to.

[Amendment No. 38 not moved..]

The Earl of Caithness moved Amendments Nos. 39 to 42:

Page 13, line 9, leave out subsection (2).

Page 13, line 19, leave out (", if any, to which the defence have departed from the") and insert ("of any departure from a").

Page 13, line 21, leave out paragraph (b) and insert— ("(b) to whether there was any justification for it.").

Page 13, line 22. at end insert— ("(3A) Except as provided by this section no part—

1. (a)of a Statement supplied under section 9(4) above; or
2. (b)of any other information relating to the case for the defendant or, if there is more than one, the case for any of them, which was given at the preparatory hearing.

may be disclosed at a stage in the trial after the jury have been sworn without the consent of the person who supplied or gave it.".

The noble Lord said: I spoke to these amendments when moving Amendment No. 36.

The Deputy Chairman of Committees

I draw your Lordships' attention to the misprint in Amendment No. 42 in paragraph (a), which should read: of a statement supplied under section 9(4) above".

On Question, amendments agreed to.

Clause 10, as amended, agreed to.

Clause 11 agreed to.

Clause 12 [Charges of and penalty for conspiracy to defraud].

The Earl of Caithness moved Amendment No. 43:

Page 15, line 43, at end insert— ("(1A) In section 5(2) of the Criminal Law Act 1977, the words from "and" to the end are hereby repealed.")

The noble Lord said: I beg to move Amendment No. 43, and at the same time speak toAmendments Nos. 120, 121, 122, 123, 124, 126, 127, 128, 131, 134, 135, 136, 137, 138, 140, 141, 142, 170, 173, 176, 177, 178, 179, 180, 181, 183 and 185. This daunting group of amendments contains amendments which are necessary to leave intact only the provisions required for the enactment of Part I of the Bill, including those associated provisions in schedules which are technically necessary. I beg to move.

On Question, amendment agreed to.

Clause 12, as amended, agreed to.

Lord Denning had given notice of his intention to move Amendment No. 44:

After Clause 12, insert the following new Clause—

("Fraud Trials Tribunal.

.—(1)In any case which appears to the Attorney-General to involve issues of complex fraud suitable for trial by a tribunal, the "Fraud Trials Tribunal", he may apply to a Judge of the High Court for an order that the case be tried by that Tribunal instead of by a Judge and Jury.

1. (2)If the High Court Judge makes an order under subsection 1 above the case shall be transferred to the Tribunal which shall thenceforward give all directions as to the hearing of the case and shall have all such powers of sentencing as if the case had been tried by Judge and Jury.
2. (3)The Tribunal shall consist of a Judge and two lay members selected from a panel of persons who have skill and expertise in business generally and experience of complex business transactions.
3. (4)The Lord Chancellor shall make rules constituting the Tribunal and regulating its practice and procedure.")

The noble and learned Lord said: I put down this amendment because one of the most important recommendations of the Roskill Commission was that there should be a special frauds tribunal consisting of a judge and two experts to deal with the cases of complex and serious fraud. On Second Reading the Government said that they would be pleased to consider the matter further. I know it is a matter of controversy, therefore in the circumstances that have arisen I shall not now move the amendment.

[Amendment No. 44 not moved.]

Clause 13 [First-hand hearsay.]:

The Earl of Caithness

I beg to oppose the Question, That Clause 13 stand part of the Bill, and at the same time would also oppose Clauses 14 and 15 standing part of the Bill.

Clause 13 negatived.

Clauses.14 and 15 negatived.

Clause 16 [Statements in documents that appear to have been prepared for purposes of criminal proceedings or investigations]:

[Amendment No. 45 not moved.]

Clauses 16 and 17 negatived.

Clause 18 [Letters of request]:

[Amendments Nos. 46 and 47 not moved.]

Clause 18 negatived.

Clause 19 [Expert reports]:

[Amendments Nos. 48 and 49 not moved.]

Clause 19 negatived.

Clause 20 [Power to make Crown Court Rules as to form of evidence and as to glossaries]:

[Amendments Nos. 50 and 51 not moved.]

Clause 20 negatived.

Clause 21 [Evidence through videq, links]:

[Amendments Nos. 52 to 59 not moved.]

Clause 21 negatived.

After Clause 21:

[Amendment Nos. 60 and 61 not moved.]

Clause 22 [Use of written evidence of persons under 14 in committal proceedings]:

[Amendment No. 62 not moved.]

Clauses 22 to 28 negatived.

Clause 29 [Reference of sentencing questions to Court of Appeal]:

[Amendment Nos. 63 and 64 not moved.]

Clause 29 negatived.

After Clause 29:

[Amendment Nos. 65 and 66 not moved.]

Clauses 30 to 32 negatived.

6.45 p.m.

Clause 33 [Restrictions on the imposition of custodial sentences on offenders under 21]:

[Amendment No. 67 not moved..]

Clause 33 negatived.

After Clause 33:

[Amendment No. 68 not moved.]

Clauses 34 and 35 negatived.

After Clause 35:

[Amendments Nos. Nos. 69 to 73 not moved.]

Clauses 36 to 39 negatived.

Clause 40 [Increased periods of imprisonment for default]:

[Amendment No. 74 not moved.]

Clause 40 negatived.

Clause 41 [Review of postponement of warrant of commitment]:

[Amendments Nos. 75 and 76 not moved.]

Clauses 41 and 42 negatived.

After Clause 42:

[Amendment No. 77 not moved.]

Clause 43 negatived.

Clause 44 [Fixed penalty notices]

[Amendment No. 78 not moved.]

Clauses 44 and 45 negatived.

Clause 46 [Power to deprive offenders of property]:

[Amendment No. 79 not moved.]

Clauses 46 to 60 negatived.

After Clause 60:

[Amendment No. 80 not moved..]

Clauses 61 to 79 negatived.

Clause 80 [The compensation scheme]:

[Amendments Nos. 81 to 94 not moved.]

Clause 80 negatived.

Clause 81 negatived.

Clause 82 [Powers to withhold and reduce compensation]:

[Amendments Nos. 95 to 99 not moved.]

Clause 82 negatived.

Clause 83 [Right of appeal by way of case stated]:

[Amendments Nos. 100 to 102 not moved.]

Clause 83 negatived.

Clauses 84 to 87 negatived.

After Clause 87:

[Amendment No. 103 not moved.]

Clause 88 negatived.

Clause 89 [Abolition of peremptory challenge]:

[Amendment No. 104 not moved.]

Clause 89 negatived.

Clauses 90 and 91 negatived.

Affer Clause 91:

[Amendments Nos. 105 and 106 not moved.]

Clauses 92 to 94 negatived.

After Clause 94:

[Amendment No. 107 not moved.]

Clause 95 negatived.

After Clause 95:

[Amendment No. 108 not moved.]

Clauses 96 to 115 negatived.

The Deputy Chairman of Committee (Lord Alport):

We now come to Clause 116, which does not appear on the Marshalled List but which must be there.

Clause 116 negatived.

Clause 117 [Application to Service courts etc. of provisions relating to evidence]:

[Amendments Nos. 109 to 113 not moved.]

Clause 117 negatived.

Clauses 118 to 123 negatived.

Clause 124 [Groundless appeals]:

[Amendments Nos. 114 and 115 not moved.]

Clause 124 negatived.

Clause 125 [Anonymity in rape etc. cases]:

[Amendments Nos. 116 to 118 not moved..]

Clause 125 negatived.

Clauses 126 to 130 negatived.

After Clause 130:

[Amendment No. 119 not moved.]

Clause 131 [Northern Ireland]:

The Earl of Caithness moved Amendment No. 120:

Page 83, line 2, leave out from ("to") to end of line 6 and insert (" 12").

On Question, amendment agreed to.

Clause 131, as amended, agreed to.

Clause 132 agreed to.

Clause 133 [Minor and consequential amendments and repeals]:

The Earl of Caithness moved Amendment No. 121:

Page 83, line 16, leave out subsection (2).

On Question, amendment agreed to.

Clause 133, as amended, agreed to.

Clause 134 [Commencement]:

The Earl of Caithness moved Amendments Nos. 122 to 124:

Page 83, line 19, leave out ("subsections (3) and (4)") and insert ("subsection (5)").

Page 83, line 26, leave out from ("force") to end of line 34.

Page 83, leave out lines 37 to 39.

On Question, amendments agreed to.

[Amendment No. 125 not moved.]

The Earl of Caithness moved Amendment No. 126:

Page 83. line 41, leave out from beginning to end of line 5 on page 84.

On Question, amendment agreed to.

The Earl of Caithness moved Amendment No. 127:

Page 84, line 8, leave out subsection (6).

On Question, amendment agreed to. Clause 134, as amended, agreed to.

Clause 135 [Extent]:

The Earl of Caithness moved Amendment No. 128:

Page 84, leave out lines 31 to 43.

On Question, amendment agreed to. [Amendments Nos. 129 and 130 not moved.]

7 p.m.

The Earl of Caithness moved Amendment No. 131:

Page 85, leave out line 2.

On Question, amendment agreed to.

[Amendments Nos. 132 and 133 not moved.]

The Earl of Caithness moved Amendment No. 134:

Page 85, line 6, leave out subsection (4).

On Question, amendment agreed to.

The Earl of Caithness moved Amendment No. 135:

Page 85. line 8, leave out subsections (6) to (9).

On Question, amendment agreed to.

The Earl of Caithness moved Amendment No. 136:

Page 85, line 29, leave out ("or repeal").

On Question, amendment agreed to.

The Earl of Caithness moved Amendment No. 137:

Page 85, line 30, leave out ("or 13").

On Question, amendment agreed to.

The Earl of Caithness moved Amendment No. 138:

Page 85, leave out line 31.

On Question, amendment agreed to.

[Amendment No. 139 not moved.]

The Earl of Caithness moved Amendments Nos. 140, 141 and 142:

Page 85, line 32, leave out ("any enactment to which this subsection applies") and insert ("section 2 above-).

Page 85, line 34, leave out ("or to the Isle of Man").

Page 85, line 36, leave out subsection (12).

On Question, amendments agreed to.

Clause 135, as amended, agreed to.

Clause 136 agreed to.

Schedule 1 [The Serious Fraud Office]:

The Earl of Caithness moved Amendment No. 143:

Page 87, line 42, leave out ("of witnesses").

The noble Earl said: This is a technical amendment to Schedule 1, and expands the category of persons whose costs and expenses of attending criminal proceedings at the request of the Serious Fraud Office may be met. By this means, the expenses of, for instance, parents of child witnesses or those accompanying disabled witnesses may be met. I beg to move.

On Question, amendment agreed to.

Schedule 1, as amended, agreed to.

Schedule 2 [Documentary Evidence-Supplementary]:

Schedule 2 negatived.

Schedule 3 [Service courts-Suspended and Partly Suspended Sentences of Imprisonment]:

Schedule 3 negatived.

Schedule 4 [Offences in Respect of which Magistrates' Courts may make Confiscation Orders]:

Schedule 4 negatived.

Schedule 5 [Amendments of Drug Trafficking Offences Act 1986]:

[Amendments Nos. 144 and 145 not moved.]

Schedule 5 negatived.

Schedule 6 [The Criminal Injuries Compensation Board]:

Schedule 6 negatived.

Schedule 7 [Claims for compensation]:

[Amendments Nos. 146 to 157 not moved.]

Schedule 7 negatived.

Schedule 8 [Supervision]:

[Amendment No. 158 not moved.]

Schedule 8 negatived.

Schedule 9 [Amendments of Backing al Warrants (Republic. of Ireland) Act 1965 and Fugitive Offenders. 4ct 1967];

Schedule 9 negatived.

Schedule 10 [Administration of the probation service etc.]:

[Amendments Nos 159 and 160 not moved.]

Schedule 10 negatived.

Schedule 11 [Service courts etc.]

[Amendments Nos. 161 to 169 not moved.]

Schedule 11 negatived.

Schedule 12 [Minor and consequential amendments]:

The Earl of Caithness moved Amendment No. 170:

Page 117, leave out lines 28 to 49

On Question, amendment agreed to.

[Amendments Nos. 171 and 172 not moved.]

The Earl of Caithness moved Amendment No. 173:

Page 118, leave out lines 16 to 48

On Question, amendment agreed to. [Amendments Nos. 174 and 175 not moved.]

The Earl of Caithness moved Amendment No. 176:

Page 119, leave out lines 7 to 13

On Question, amendment agreed to.

The Earl of Caithness moved Amendment No. 177:

Page 119, line 15, leave out from beginning to ("(right") in line 47 on page 120 and insert— ("13. At the end of subsection (I) of section 33 of the Criminal Appeal Act 1968")

On Question, amendment agreed to.

The Earl of Caithness moved manuscript Amendment No. 177A:

Page 120, line 49, at end insert ("21A. In section 36 of that Act (bail on appeal by defendant) after the word "Lords", there shall be inserted the words "other than a person appealing or applying for leave to appeal from a decision on an appeal under section 9(1) of the Criminal Justice Act 1987 (appeals against orders or rulings at preparatory hearings),".

21 B. In section 38 of that Act (presence of defendant at hearing) after the word "who" there shall be inserted the words "has been convicted of an offence and".")

The noble Earl said: I apologise for the late tabling of this technical amendment. There are two other technical amendments in manuscript. They are Amendments Nos. 179A and 184A. These amendments form a provision in Clause 9 for an interlocutory appeal on points of law to the Court of Appeal and, in certain circumstances, onwards to your Lordships' House at a preparatory hearing. The amendments ensure that the appeals attract the appropriate legal aid and cost provisions for defendants. I beg to move.

On Question, amendment agreed to.

The Earl of Caithness moved Amendment No. 178:

Page 121, leave out lines Ito 34

On Question, amendment agreed to.

The Earl of Caithness moved Amendment No. 179:

Page 121, line 42, leave out from beginning to end of line 22 on page 122

On Question, amendment agreed to.

The Earl of Caithness moved Amendment No. 179A:

Page 122, line 29, at end insert— ("32A. The following subsection shall be inserted after section 28(8) of that Act— (8A) The Crown Court or the criminal division of the Court of Appeal may order that a person shall be given legal aid for the purpose—

1. (a)of an application for leave to appeal under section 9(10) of the Criminal Justice Act 1987 (appeals against orders or rulings at preparatory hearings); or
2. (b)of an appeal under that subsection.".").

On Question, amendment agreed to.

The Earl of Caithness moved Amendments Nos. 180 and 181:

Page 122, line 30, leave out from beginning to end of line 3 on page 123.

Page 123, line 11, leave out from beginning to end of line 34 on page 124.

On Question, amendments agreed to.

[Amendment No. 182 not moved.]

The Earl of Caithness moved Amendment No. 183:

Page 125, line 12, leave out from beginning to end of line 6 on page 126.

On Question, amendment agreed to. [Amendment No. 184 not moved.]

The Earl of Caithness moved Amendment No. 184A:

Page 126, line 17, at end insert— ("60A. The following subsection shall be inserted after section 16(4) of that Act— (4A) The court may also make a defendant's costs order in favour of the accused on an appeal under section 9(10) of the Criminal Justice Act 1987 (appeals against orders or rulings at preparatory hearings)."). 60B. At the end of subsection (2)(b) of section 18 of that Act (award of costs against accused) there shall be added "or (c) an appeal or application for leave to appeal under section 9(10) of the Criminal Justice Act 1987;".").

On Question, amendment agreed to.

The Earl of Caithness moved Amendment No. 185:

Page 126, leave out lines 18 to 29.

On Question, amendment agreed to. [Amendment No. 186 not moved.]

Schedule 12, as amended, agreed to.

Schedule 13 [Repeals]:

[Amendments Nos. 187 to 196 not moved.]

Schedule 13 negatived.

In the Title:

The Earl of Caithness moved Amendment No. 197:

Line 2, leave out from ("fraud") to ("and") in line 20.

On Question, amendment agreed to.

Title, as amended, agreed to.

House resumed: Bill reported with amendments.

7.15 p.m.

Then, Standing Order No. 43 having been dispensed with (pursuant to Resolution of today's date); Report received.

The Earl of Caithness

My Lords, in order to clarify the proceedings from Committee I believe that I should have moved Amendment No. 130. I originally intended to, and then did not, move this amendment. It should have been moved in order to make Clause 135 complete. I hope that your Lordships will agree that it should be incorporated into the Bill at this stage.

Lord Wigoder

My Lords, I think we all thought that at the time.

The Deputy Speaker

My Lords, this now becomes a manuscript amendment on Report, and will be recorded in Hansard accordingly.

Clause 135 [Extent]:

The Earl of Caithness moved Amendment No. 130:

Page 84, leave out line 47.

On Question, amendment agreed to.

The Earl of Caithness

My Lords, I beg to move that this Bill be now read a third time.

Moved, That the Bill be now read a third time.—(The Earl of Caithness.)

Lord Mishcon

My Lords, seldom in the long and glorious history of this House has there been such a Session of legislative devastation. From these Benches we certainly wish to congratulate the Deputy Chairman at the Committee stage who conducted his office with aplomb and capability and quite obvious enjoyment.

As we reach the Third Reading of this rather hustled legislation, it is necessary only to draw attention once more to the fact that this must never be used as a precedent for rushing through legislation especially in your Lordships' House bearing in mind that we are, in our primary duties, a House where we revise legislation. There are extenuating and difficult circumstances. Quite obviously, if we were not to have agreed to this procedure without precedent, we should have lost Part I of the Bill. As has already been said by my noble and learned friend Lord Elwyn-Jones, we on this side of the House wanted, without any doubt, to assist so far as we properly could in seeing that the Serious Fraud Office was set up and that it could exercise its duties and powers as soon as possible in order that the stain (which unfortunately has been imprinted upon an otherwise very clean City in its reputation throughout the world) should be dealt with promptly and accurately as it has not been possible to do in past months. It is in those circumstances that we reach the Third Reading of the Bill. I shall say one more thing before sitting down. It will be the joy of my friends on the Front Bench of the Labour Party in the future to draw the attention of the Minister, on whatever side of the House he may be sitting, to the fact, if ever certain clauses of the Bill are before us again, that he voted with such a good voice against all those clauses forming part of his Bill.

Lord Wigoder

My Lords, I suspect that within the past half hour, for all anybody in the Committee may know, including the Minister, we may well have repealed both Magna Carta and the Bill of Rights. It has been a half hour of almost total gibberish, in the course of which—and this is not really such a laughing matter—a whole series of starred amendments, of which no one had any notice until this morning when the Marshalled List was issued, have been passed through this Chamber without a word of explanation or comment. I suspect that none of us had any idea of the implication of the detail of what it is we have passed. That strengthens my sense of unease about the whole of the proceedings this afternoon.

It has been perfectly apparent that we have been going through the stages of a Bill having negotiated between all the parties in the corridors outside the Chamber yesterday afternoon, yesterday evening and this morning the detail of what was to happen. Of course I can understand the reasons for that. I know perfectly well that politicians in all the parties are about to set out for all parts of the country and they want to be able to say that where fraud is going on in the City of London their party is behind the drive to stamp it out. All the parties want to say that—the Alliance as much as anybody else. It is for that reason, and that reason alone, that this part of the Bill now comes before this Chamber in the very undesirable way that it has.

It is undesirable for the reason that has already been made clear. We have failed in our duty as a House to exercise our proper legislative function. This is a criminal statute. It is a measure of the criminal law. We all know from history how important it is that the criminal law should be absolutely right. That means that it should be examined with scrupulous care not merely in Committee but at Report stage and Third Reading in both Houses of Parliament, and particularly in your Lordships' House where there are noble and learned Law Lords who can bring a wealth of expertise on legal matters that is not available to the other place. We have abandoned the whole of that; we have shot through the Bill; we have negotiated amendments between ourselves outside in corridors; and nobody knows what the result will be during the next few years.

It hardly needs me to point out that some 75 years ago the Official Secrets Act 1911 was passed with much the same speed and we have all been regretting it every since. It was done in good faith and in a way which people thought at that time was absolutely correct. The reasons why we have got into this difficulty—and I understand them—are twofold. First, the Prime Minister with a large and, so far as I know, entirely stable majority in the other place has chosen to go to the country about a year before she need have done. That is her prerogative and it would be impertinent of me even to begin to criticise it; and of course I do not do so. But the result has been that the centrepiece of the Government's legislation of this Session has collapsed in the rather lamentable way we have seen today. That is the first problem.

The second problem is that right from the beginning this Bill had far too much in it. There should have been a whole series of separate Bills. There should have been a separate Bill on fraud, a separate Bill on evidence, a separate Bill on confiscation and certainly a separate Bill on extradition. Indeed if we had had a separate Bill on fraud brought forward after the report of the noble and learned Lord, Lord Roskill, many months ago now, that Bill would have gone through both Houses in all its stages with proper, careful consideration and would no doubt have been a worthy addition to the criminal law instead of this rushed version with which we have had to put up this afternoon.

I appreciate that the circumstances are exceptional. Everyone will say that this is not a precedent until it happens next time when it will then come to be regarded as a precedent. Whichever government come to power after the election, I can only hope, first, that if the Bill is reintroduced, it comes back to your Lordships' House which is the obvious recipient of this Bill, it having been examined in another place; and, secondly, it comes back in a series of digestible portions so that we can properly exercise the functions for which we are here.

The Earl of Caithness

My Lords, I agree with the noble Lord, Lord Mishcon, that the Bill leaves your Lordships' House somewhat slimmer than when it arrived; but in the short time available before Parliament is dissolved I believe that we have done a good job in saving a highly significant and coherent part of it. As it now stands, the Bill provides for significant changes and reforms to help the criminal justice system tackle large scale fraud vigorously. The new serious fraud office should help to focus effort and expertise on the investigation and prosecution of such cases. The streamlined court procedures recommended by the Roskill Committee will enable serious fraud trials to be brought rapidly into the jurisdiction of the Crown Court where it will be possible for the issues to be refined and clarified by a formal preparatory stage. The change in the ambit of the charge of conspiracy to defraud is a modest but important reform which will make it easier for the prosecution to bring the right charge in the more serious cases.

I am grateful for the constructive spirit in which the Committee shared our aims, and I too should like to pay tribute to the Lord Chairman for the excellent work that he did. I acknowledge that there has been less opportunity to debate these provisions than would normally have been the case; but it is a measure of the importance we all attach to the fight against fraud that we have been willing to forgo that opportunity. It is, I would suggest, no more and no less than the country would expect. Your Lordships know that we are always open to constructive proposals for change, and although I am confident that they do what is required of them, I can assure the House that these provisions are no exception. Of course we should have wished to go further and bring the whole of the Bill as introduced to the statute book; but I am confident that that can be done before very long. I hope that the noble Lord, Lord Mishcon, will join me in good voice in getting those parts of the Bill on to the statute book ere long.

I was a little disappointed by what the noble Lord, Lord Wigoder, said. There was considerable discussion on Part I of the Bill. Admittedly, the remaining parts which were consequential on the agreement were not discussed. But that was the nature of the agreement. They are there to be discussed for another day because I am sure that before long your Lordships will have another Criminal Justice Bill and I hope that I shall have the honour of being in this position to introduce it and get the support of noble Lords opposite in seeking to put it on to the statute book.

I shall not detain the House further. We send this Bill to another place in the knowledge that we are sending a clear signal of our seriousness of purpose in tackling major fraud and in the confidence that this measure makes a very important contribution to that end. I commend the Bill.

On Question, Bill read a third time and passed, and returned to the Commons with amendments.