§ (2) In section 4 (finding of unfitness to plead), in subsection (5) (question of fitness to be determined by a jury), for the words from "by a jury" to the end substitute "by the court without a jury".229
§ (3) In subsection (6) of that section, for "A jury" substitute "The court".
§ (4) In subsection (1) of section 4A (finding that the accused did the act or omission charged against him), for "jury" substitute "court".
§ (5) For subsection (5) of that section substitute—
§ (5) Where the question of disability was determined after arraignment of the accused, the determination under subsection(2) is to be made by the jury by whom he was being tried.""
§ Baroness Scotland of Asthal
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 12. In relation to this group of amendments, the government amendments made in the other place seek to reinstate provisions removed at Third Reading in this House, which would streamline the court process for vulnerable defendants who may be unfit to stand trial. The change provides that the decision on whether a defendant is fit to plead to a charge should be taken by the judge alone, and not by a jury.
We understand the fears of those who have argued that the change reduces the protection of jury trial, but, with respect, we do not agree that it has that effect. A finding of unfitness does not enable any court disposal. It leads to a trial of the facts further to which there is a jury decision on whether the defendant did the act as charged. If the jury is not so satisfied, the court must acquit. Only if the jury finds that the defendant did the act is there a court disposal, and that disposal cannot be punitive. The court may order admission to hospital for treatment if medical evidence justifies that. If it does not, it may order supervision in the community or make an absolute discharge.
The proposal was made by Lord Justice Auld in his review of the criminal justice process. Its intent is to spare vulnerable defendants the lengthy process involving two separate juries, the first having to hear evidence from at least two medical practitioners. A jury is unlikely to be as well qualified as a judge to interpret complex evidence of a professional nature. Moreover, if the defendant subsequently wishes to challenge the finding, he will have a judge's reasons for the conclusion under the new clause. Under the 1964 Act provision, which this amendment would restore, the jury has to give no reasons for its finding.
The amendments tabled by the noble Baroness and the noble Viscount would remove the benefits of the judge's greater expertise, and need to give reasons, from precisely those cases in which the defendant might wish to challenge the decision. We know that the decision on fitness is not challenged in the great majority of cases.
The proposed amendment would leave the Government's intentions intact when there was no challenge. But the defendant stands to gain most when there is dissent, and we should not seek to exclude those benefits.
Lord Justice Auld's proposal is now four years old. We believe that it is too important both to the courts and to vulnerable defendants to be delayed further. It 230 must, at best, be subject to considerable further delay if removed from this Bill. We commend the amendment to your Lordships.
§ Moved, That the House do agree with the Commons in their Amendment No. 12.—(Baroness Scotland of Asthal.)
§ Baroness Anelay of St Johns rose to move Amendment No. 12A, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 12, leave out "agree" and insert "disagree".
§ The noble Baroness said: My Lords, in moving the amendment, I shall speak to Amendments Nos. 12B, 13A and 13B. When we first debated these matters at Report, it was because the Government had inserted them into the Bill quite late in the day, but had tried to give this House as much advance notice as possible of the changes before Report. At that stage, as the Minister will recall, I sought to contact those organisations with a direct interest in representing the needs of people who could come within the remit of these clauses. The difficulty was that at that stage I was simply unable to get a response from them. The Minister felt that there had been official consultation; the difficulty was that I could not see any record of that, or response from the organisations.
At Third Reading there still had been no response, which was why I divided the House—because I felt that it was important to listen to the views of organisations such as Mind. By the time the Bill reached Second Reading in another place, Mind had issued its briefing, in which it said that it was,
concerned at the absence of consultation about these changes, particularly in view of the commitments extended by the government on the consultation and scrutiny of the Mental Health Bill".
Mind also said in its briefing that it believed that the Government's proposals,
will lead to an increase in unwarranted deprivation of liberty and an unfair criminalisation of people who are not of proven criminal liability".
§ I appreciate entirely the Minister's arguments, and that she believes that the interests of vulnerable people in those circumstances may be preserved by a judge having given reasons. I put against that the perception and experience of an organisation that represents people who will be subject to those proceedings. Will the Minister tell the House what conversations the Home Office has had with Mind in the course of the summer on these matters?
§ My concern is that there has been no response from the Government, although Sandra Gidley in another place quoted the briefing at Second Reading (at col. 575 of the Official Report of 14 June) and my honourable friend Cheryl Gillan in Committee also referred to it. (at cols. 202 to 203 of the Official Report of Standing Committee E of 29 June). Such references were simply not recognised in the response by Mr Goggins or, at Second Reading, by Mr Blunkett, the Home Secretary.
§ Today, I introduce an amendment—Amendment No. 12B—which addresses the need of the Government to achieve some form of administrative 231 convenience, and yet balances that against the need for vulnerable people still to have the assessment of a jury at an appropriate time. That is set against the background, as the Minister will know, of the fact that this House is always wary of any measures that nibble into the role of the jury.
§ The noble Baroness said today, and has said before, that because the measure is in the Auld report and that was published four years ago we had better introduce it. As my honourable friend Cheryl Gillan pointed out in another place, this particular proposal took up about two small paragraphs in the Auld report. There really has not been a thoroughgoing justification for the proposal.
§ With regard to administrative convenience, Mind makes the point that the issue of fitness to plead is not a simple procedural matter but one that goes to the heart of the issue of culpability. This factor does not weigh significantly against the core principles in favour of retention.
§ With regard to stress on the vulnerable individual, Mind states that it does not believe that the additional impact of a change in the composition of the jury would make more than a marginal impact on the defendant and there is no case for weighing this assumed stress against the importance of retaining the jury.
§ If the Government wish to press ahead, my Amendment No. 12B would seek to offer them a way in which we might resolve this matter so that the jury would be retained to make the decision only in those circumstances where there is a challenge as to fitness to plead. I refer to a question to which the noble Baroness's colleague in another place, the Minister, Mr Paul Goggins, replied. The question was asked by the noble Baroness's noble, or rather honourable, friend Vera Baird. She is not noble yet, but perhaps she will be after the next election, not that I would wish Redcar a different Member of Parliament although I wish that she would change her party. However, I certainly admire her.
§ This amendment came from Vera Baird. It would mean that in 10 per cent of the cases that are challenged the jury could be retained. In another place Vera Baird was rather coy about the origin of the amendment. I quite agree with her that it was a suggestion and that she never tabled the amendment. She was a loyal Back-Bencher; she suggested the amendment but did not table it. Paul Goggins' response was simply to brush it aside. He said that the Government did not want it because that was not the way they wanted to tackle the matter. The noble Baroness has gone slightly further today but she has not as yet met my principles on this matter sufficiently to persuade me that we should not proceed with my Amendment No. 12B.
§ Moved, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 12, leave out "agree" and insert "disagree".—(Baroness Anelay of St Johns.)232
§ 8.15 p.m.
§ Lord Thomas of Gresford
My Lords, we support Amendment No. 12A. The essential thing to realise about these issues of fitness to plead is that if a person is unfit to plead he is detained during Her Majesty's pleasure. Therefore, it is a matter of very considerable importance. Such people will be detained for a lengthy, indeterminate period of time. They will be regarded as people who have not been completely cleared of the offence with which they are charged. It is a very unfortunate position for them to be in. That is why we support this amendment.
§ Lord Donaldson of Lymington
My Lords, there is one slight snag with Amendment No. 12B in the name of the noble Baroness, Lady Anelay. Proposed new subsection (4A) states:Where there is no challenge by either party regarding the question of fitness to be tried".I came across this in the late 1960s; it is the only time that I ever have met it. In the particular circumstances the prison officer had decided that the accused was perfectly fit to plead and had so certified. Originally no one raised any question about that until at a fairly late stage the accused went into the witness box. At that stage he said, alternately, "I did not do it" and "Of course, I did it". It seemed to be self-evident that he was not fit to plead. He was not putting on an act; he was quite genuine to that extent.
I turned to counsel for the defendant and asked whether he agreed that his client was unfit to plead. The counsel is a distinguished Member of this House. I cannot remember his name but it does not matter. He rightly said, in effect, "Don't be silly. If he is unfit to plead, he cannot give me any instructions as to whether he is fit to plead and so I really cannot enter into this at all", and he did not, although I believe it was clear that privately he thought that was all right.
That raised another point which is very helpfully dealt with—and I think rightly dealt with—in subsection (5) of the Government's amendment. In the peculiar circumstances to which I referred the accused's clear unfitness to plead emerged only during the course of the trial. There was, I am bound to say, a slight problem with the prison medical officer. The prosecution assured me that if we had a short adjournment he felt sure that the prison officer would change his mind, which he did. I was then faced with the problem of whether to empanel another jury to decide the question. That seemed to me to be daft. I do not think that it is referred to in any law on the subject. The question arises, if you have the same jury, do you really have to go through the charade of giving the evidence all over again? It seemed to me that that was nonsense. Therefore, I directed the jury that it was fully entitled to take account of the evidence that it had heard in a different capacity and the man was quite rightly found unfit to plead.
233 Subsection (5) of the new clause proposed by the Government is right. There are real problems in amendments that depend on neither party challenging, for reasons that I have given.
§ Baroness Scotland of Asthal
My Lords, I respectfully agree with the noble and learned Lord, Lord Donaldson. The judiciary generally shares the view that the new clause would be helpful. It may be right to remind the House what Lord Justice Auld said about the issue. He found that: first, the jury's role in the majority of unfitness decisions was little more than a formality; secondly, the procedure is cumbersome because it often requires the empanelling of two juries; thirdly, the jury can bring nothing to the finding that a judge cannot; and fourthly, he takes equivalent decisions about whether there should be a trial and whether a defendant is physically fit to stand in applications to stay the prosecution or discharge the defendant, very much as the noble and learned Lord gave us a clear example of.
Lord Justice Auld also suggested that the consequences of a finding of unfitness were more flexible since the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, including absolute discharge, and that the jury should be left to determine whether the defendant committed the act. I hope that noble Lords will not think that those points were not well made because he was succinct and precise to the point. Verbosity was never an ill from which he has suffered. He is right on the matter.
The noble Baroness made a point about the 10 per cent. For those who may be, as the noble Lord, Lord Thomas of Gresford, so clearly says, detained at Her Majesty's pleasure for a lengthy and indeterminate time, it is more important to get a reasoned decision on why they are to be so detained and why they are found to be unfit to plead. Although the jury can come to that decision, it is not obliged to give reasons for having come to it; in fact, it cannot. When it comes to either appealing or reviewing a jury's decision, there is not the wherewithal to know the basis on which it came to it. That is why we think it better if the judge is charged with that task, as he can bring the acuity, knowledge and skill that is sometimes needed when there is a contest between two difficult and contentious medical opinions. He can give a reasoned decision on why he may prefer the advice of one to the other.
In terms of the interests of those who are particularly vulnerable, we think the new clause a safeguard that is merited. Lord Justice Auld was right to say that the matter should be addressed. Given my further explanation and the assistance of the noble and learned Lord, I ask the noble Baroness not to press her amendment.
§ Baroness Anelay of St Johns
My Lords, I shall try to he as succinct as Lord Justice Auld, whose very weighty tome certainly did not suffer for its length. His acuity showed that it could have been even longer had it been written by someone else.
Even when the drafting of my amendments is holed below the water by the noble and learned Lord, Lord Donaldson, I sometimes have the temerity to plough 234 ahead. This is one such occasion. I am extremely grateful to the Public Bill Office for the assistance that it gave me in drafting the amendment. It had to be somewhat rushed at the last moment, and it achieved a miracle in producing the amendment, subject to the directions that I gave; I am sure that they were rather vague.
The amendment fulfils my commitment to Mind to raise the issue today and put it to the test if there were not a satisfactory answer from the Government on the points raised. I shall not test the patience of the House by going through those arguments again, but I wish to test the opinion of the House when we reach Amendment No. 12B.
§ Baroness Scotland of Asthal
My Lords. I just wanted to clarify matters, because the noble Lord, Lord Thomas of Gresford, suggested that an individual could be detained at Her Majesty's pleasure for an indeterminate period. I should make it plain, and I hope that the noble Lord was intending this, that unfitness to plead cannot lead to indefinite detention in hospital. It can lead only to a trial of the facts by the jury; and only if a jury finds the defendant did the act, as charged, can he be ordered to be detained in hospital—and then only if he meets the conditions for detention on the grounds for his mental disorder, subject to the full safeguards of the Mental Health Act 1983, including immediate right to hearing by the Mental Health Review Tribunal, which can discharge him. That is the process that would have to be undergone. I felt that I should make that clear. I have said that before, but putting the two together might have caused some confusion.
§ Baroness Anelay of St Johns
My Lords, so that we are clear—I shall now seek to withdraw the amendment to the Motion, but give notice that I shall seek to move Amendment No. 12B. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Baroness Anelay of St Johns rose to move, as an amendment to Commons Amendment No. 12, Amendment No. 12B:
12B Leave out lines 4 to 13 and insert—
( ) In section 4 (finding of unfitness to plead), after subsection (4) insert—
(4A) Where there is no challenge by either party regarding the question of fitness to be tried the question shall be determined by the court without a jury.".
( ) In subsection (5) (question of fitness to be determined by a jury), for the words "The question of fitness to be tried" substitute "In all other cases the question".
( ) In subsection (6), for "A jury shall not make a determination under subsection (5)" substitute "The court or a jury shall not make a determination under subsection (4A) or (5)".
( ) In section 4A (finding that the accused did the act or omission charged against him), in subsection (1), for "section 4(5) above it is determined by" substitute "section 4(4A) or (5) above it is determined by the court or".
( ) In subsection (5)(a), after "was determined" insert "by a jury".
( ) In subsection (5)( b), after "was determined" insert "by a jury".
§ The noble Baroness said: My Lords, I have spoken to the amendment already and I beg to move.
§ Moved, as an amendment to Amendment No. 12, Amendment No. 12B.—(Baroness Anelay of St Johns.)
§ 8.26 p.m.
§ On Question, Whether the said amendment (No. 12B), as an amendment to Commons Amendment No. 12, shall be agreed to?
§ Their Lordships divided: Contents, 76; Not-Contents, 95.236
|Division No. 4|
|Addington, L.||Lyell, L.|
|Anelay of St Johns, B.||Mackie of Benshie, L.|
|Astor of Hever, L.||McNally, L.|
|Attlee, E.||Maginnis of Drumglass, L.|
|Blaker, L.||Mar and Kellie, E.|
|Bradshaw, L.||Marlesford, L.|
|Brougham and Vaux, L.||Masham of Ilton, B.|
|Burnham, L.||Mayhew of Twysden, L.|
|Buscombe, B.||Michie of Gallanach, B.|
|Byford, B.||Miller of Chilthorne Domer, B.|
|Carlisle of Bucklow, L.||Monro of Langholm, L.|
|Carnegy of Lour, B.||Montrose, D.|
|Colwyn, L.||Morris of Bolton, B.|
|Cope of Berkeley, L.[Teller]||Neuberger, B.|
|Craig of Radley, L.||Newton of Braintree, L.|
|Denham, L.||Noakes, B.|
|Dholakia, L.||Norton of Louth, L.|
|Dixon-Smith, L.||Park of Monmouth, B.|
|Dundee, E.||Rennard, L.|
|Dykes, L.||Renton, L.|
|Elliott of Morpeth, L.||Roberts of Llandudno, L.|
|Fearn, L.||Rogan, L.|
|Glenarthur, L.||Roper, L. [Teller]|
|Hamwee, B.||Rotherwick, L.|
|Higgins, L.||Russell-Johnston, L.|
|Hodgson of Astley Abbotts, L.||Sandberg, L.|
|Hooper, B.||Seccombe, B.|
|Hooson, L.||Sharp of Guildford, B.|
|Howard of Rising, L.||Sharples, B.|
|Kimball, L.||Shutt of Greetland, L.|
|King of Bridgwater, L.||Skelmersdale, L.|
|Kingsland, L.||Smith of Clifton, L.|
|Knight of Collingtree, B.||Thomas of Gresford, L.|
|Laidlaw, L.||Trumpington, B.|
|Linklater of Butterstone, B.||Ullswater, V.|
|Livsey of Talgarth, L.||Walmsley, B.|
|Lucas, L.||Watson of Richmond, L.|
|Luke, L.||Williams of Crosby, B.|
|Acton, L.||Brookman, L.|
|Alli, L.||Burlison, L.|
|Amos, B. (Lord President of the Council)||Carter, L.|
|Carter of Coles, L.|
|Archer of Sandwell, L.||Clark of Windermere, L.|
|Ashton of Upholland, B.||Corbett of Castle Vale, L.|
|Bach, L.||Crawley, B.|
|Bassam of Brighton, L.||David, B.|
|Billingham, B.||Davies of Coity, L.|
|Borrie, L.||Davies of Oldham, L.[Teller]|
|Brennan, L.||Dixon, L.|
|Brooke of Alverthorpe, L.||Donaldson of Lymington, L.|
|Drayson, L.||McKenzie of Luton, L.|
|D'Souza, B.||Massey of Darwen, B.|
|Dubs, L.||Maxton, L.|
|Elder, L.||Merlyn-Rees, L.|
|Evans of Parkside, L.||Mitchell, L.|
|Evans of Temple Guiting, L.||Morgan of Drefelin, B.|
|Farrington of Ribbleton, B.||Parekh, L.|
|Faulkner of Worcester, L.||Pitkeathly, B.|
|Fyfe of Fairfield, L.||Plant of Highfield, L.|
|Gale, B.||Radice, L.|
|Gibson of Market Rasen, B.||Rendell of Babergh, B.|
|Goudie, B.||Rooker, L.|
|Gould of Potternewton, B.||Rosser, L.|
|Griffiths of Burry Port, L.||Rowlands, L.|
|Grocott, L. [Teller]||Royall of Blaisdon, B.|
|Harris of Haringey, L.||Scotland of Asthal, B.|
|Hart of Chilton, L.||Sewel, L.|
|Haskel, L.||Simon, V.|
|Haworth, L.||Smith of Leigh, L.|
|Henig, B.||Snape, L.|
|Hilton of Eggardon, B.||Stone of Blackheath, L.|
|Hollis of Heigham, B.||Taylor of Blackburn, L.|
|Howe of Idlicote, B.||Temple-Morris, L.|
|Hoyle, L.||Thornton, B.|
|Hughes of Woodside, L.||Tomlinson, L.|
|Hunt of Kings Heath, L.||Triesman, L.|
|Jones, L.||Truscott, L.|
|Judd, L.||Tunnicliffe, L.|
|Kirkhill, L.||Turnberg, L.|
|Leitch, L.||Turner of Camden, B.|
|Lockwood, B.||Wall of New Barnet, B.|
|McCarthy, L.||Warner, L.|
|McDonagh, B.||Whitaker, B.|
|McIntosh of Haringey, L.||Wilkins, B.|
|McIntosh of Hudnall, B.||Williamson of Horton, L.|
|MacKenzie of Culkein, L.||Young of Norwood Green, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ On Question, Motion agreed to.
§ 8.36 p.m.