§ 11 Clause 12, page 8, line 11, leave out from "count" to end of line 17 and insert "may not be regarded as a sample of other counts unless the defendant in respect of each count is the same person"
§ Baroness Scotland of Asthal
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 11.
Let me begin by reminding your Lordships what these provisions are for. Where offending consists of innumerable repetitions of the same offence there may be far more instances of it than can reasonably be included in a single indictment. The practice used to be for a defendant to be indicted for a number of sample counts. It he was convicted of them the court would then sentence him on the basis of all the offences. But this meant that the offences for which he was sentenced included some to which he had not pleaded guilty, of which he had not been convicted and which he had not asked to be taken into consideration.
For this reason the practice was disapproved of by the Court of Appeal in the case of Kidd in 1998. The present clauses provide a statutory replacement for the sample count procedure. It is not intended to widen its scope, nor will it result in any cases which now receive jury trial being denied it. The offences that will he tried without a jury will be the ones that could not now be tried at all. The new procedure is an improvement on the old because where a defendant has been found guilty of sample counts the court will not, as before, simply assume that he is guilty of the remaining counts but will proceed to try those counts in accordance with the evidence.
224 In the debate at the Report stage in another place. Mr Douglas Hogg, the right honourable Member for Sleaford and North Hykeham, appeared to be somewhat concerned at the prospect of a judge who had heard the evidence in the first stage of a trial before a jury—and who would of course be aware that the defendant had been convicted—would then bring that knowledge to the second stage of the trial. This suggests a misapprehension about the purpose of this procedure. It is absolutely clear that where a defendant has been convicted of counts which are samples of other counts, it will be appropriate for the court to take account in the second stage of the trial both of the fact that he has been convicted and of any evidence adduced in the first stage that is relevant and admissible.
Conversely, a case where that would not be appropriate cannot be a sample count. But that is very different from applying a test of cross-admissibility, which is a bone of contention between us and noble Lords opposite. Your Lordships voted at Third Reading to add subsection (9) to this clause, a requirement for evidence admissible in respect of sample counts to be admissible in respect of subsidiary counts. There was a vote in Committee in another place to remove it, and an attempt at Report stage to reinstate it was defeated. Your Lordships have debated the issue in the past at some length, both on Report and at Third Reading, and it has been considered in another place. Nevertheless I should like to explain why we have consistently opposed the requirement for cross-admissibility and why we remain firmly of the view that such a requirement would be a mistake.
The risk is that using cross-admissibility as the criterion of whether counts were similar enough for one to be a sample of another might exclude some of the cases that we want to be subject to the two-stage process. Let me give an example. An offender is involved in an Internet scam whereby hundreds of victims are cheated of trivial sums of money; there is evidence of more than 600 transactions. Each transaction would constitute a separate count on the indictment and to include all of them would overload it.
The key issue in the case is whether or not the offender was dishonest. In other words, it is not in doubt that the transactions took place; the question is whether or not he had the dishonest intent. The prosecution would seek to make an application for a two-stage trial; 15 counts to be tried by jury and the rest to be tried by judge alone. If in order to obtain such an order the prosecution had to demonstrate that each count was cross-admissible, the court might apply a strict test of similarity or similar fact, which is commonly thought to be a test of degree. The case in the example may fail this test because evidence of dishonesty in respect of one transaction may have no probative value in respect of another different transaction. In other words, the evidence of the other transactions, while similar, may add no probative value to the main issue in the case, which is dishonesty.
225 Another difficulty is that the test would have to be applied at the preparatory stage, which is when the decision about using the two-stage procedure is to be taken. It might not be clear at that point whether evidence in respect of a count would be cross-admissible in respect of another count. Yet another difficulty is that where there has been no conviction the court has no power to award compensation. Victims may miss out on compensation, therefore, where there are more offences than can be accommodated on the indictment.
We are of the view that in cases of this type where the judge is considering whether one count is a sample of another, the judge can be relied upon to know what a sample count is and that the question of what can be regarded as a sample count can best be left to judicial discretion. The expression is well known and understood from the days before the Kidd judgment. I know that the noble Lord, Lord Thomas of Gresford, will be familiar with this, as indeed will the noble and learned Lord, Lord Donaldson. As far as I am aware, the case involved no suggestion that the courts were taking an unduly broad view of the circumstances in which some counts could be regarded as samples of others. The objection to the former procedure was merely that it entailed assuming the defendant's guilt on the subsidiary counts rather than establishing it, which is what our clause now allows.
Subsection (9), therefore, leaves what is a sample count to judicial discretion. We have been persuaded, however, that the way in which the subsection was originally drafted had an unhelpful circularity about it. Clause 12(9) has therefore been amended so as to remove the circular definition. It simply provides that a sample count is not to be regarded as a sample of other counts unless the defendant in respect of each count is the same person, thus preserving the part of Clause 9 that arguably has a useful function.
I hope that that is clear. We are creating a new mechanism to allow us to do what we did very happily for a number of years with great utility and facility.
§ Moved, That the House do agree with the Commons in their Amendment No. 11.—(Baroness Scotland of Asthal.)
§ Lord Thomas of Gresford rose to move Amendment No. 11A, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 11, leave out "agree" and insert "disagree".
The noble Lord said: My Lords, I draw your Lordships' attention to the wording of Clauses 12(4) and 14(1). Clause 12(4) says of the sample count:
The second condition is that, if an order under subsection (2) were made, each count or group of counts which would accordingly be tried with a jury can be regarded as a sample of counts which could accordingly be tried without a jury".
The phrase "can be regarded" appears again in Clause 14 and, indeed, in the Minister's speech. It is new Labour speak, I am afraid; it is rather like the Prime Minister saying "I can apologise for misleading the country about Iraq", but did he? Here again, if it,
can be regarded as a sample",
is it a sample, and by whom will it be regarded?
§ All we are seeking to do, in this very simple amendment, is to make it quite clear what a sample count is, as it has always been understood, and that it is the judge who takes the decision that he is the person who considers that the sample count is a sample of the other counts and not that it "can be regarded" as such. By whom? By the man on the Clapham omnibus? We are simply seeking clarification.
§ The noble Baroness referred to Internet fraud. That is no doubt a very modern thing. I recall prosecuting a case four or five years ago of some 300 people who had been defrauded in a mortgage scam. I think that a solicitor was one of the defendants. The sums involved—about £50,000—were not trivial. Statements were taken from those 300 victims; the police sent around a pro forma and had them all fill it in. I think we started with 30 counts in the indictment and, at the suggestion of the judge, we cut it down to 10. But every statement that had been obtained—the scam having been carried out in the same way—was evidence in the case in relation to those 10 counts. They were admissible on very well known principles and were samples of the criminality of the person concerned.
I fully recognise that, since the Kidd decision, which suggested that it would be wrong to sentence a person on sample counts if the other counts were not admitted, something had to be done. We do not object to the general principle behind this, but we object to the fact that the phrase,
can be regarded as a sample
is so wide that it could refer to things that are way outside the previously understood meaning of a sample count. For that reason, I beg to move.
§ Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 11, leave out "agree" and insert "disagree".—(Lord Thomas of Gresford.)
§ Baroness Anelay of St Johns
My Lords, I can be very brief, but my brevity does not reflect any lack of strength in my support. We remain unconvinced by the Government's argument; we do not see any mischief in the original amendment of the noble Lord, Lord Thomas of Gresford, with regard to subsection (9)(b). We believe that it is right to make certain that somebody cannot be convicted of an offence to be tried without a jury for large numbers of other offences that are not really linked to it.
We support the noble Lord, Lord Thomas of Gresford. We believe that his amendment would simply ensure that a sample count is exactly what the majority of legal practitioners would understand it to be. If the noble Lord is minded to test the opinion of the House, we shall support him.
§ Baroness Scotland of Asthal
My Lords, I hear what the noble Baroness says. I am disappointed that she should take that view, not least because it is absolutely clear on the face of the Bill that the person who will be 227 responsible for exercising the discretion as to what will and will not be a sample count will not be the man on the Clapham omnibus, it will be the judge. The judge will decide, as the judge has always decided in these cases, whether these counts can properly be seen as a sample. I make it plain that I, for one, have total trust in the ability of our judges to make that decision soundly. If noble Lords opposite do not, it is a matter for them.
§ Lord Thomas of Gresford
My Lords, the noble Baroness says that with her tongue in her cheek because she knows that nobody has been more supportive of the judiciary and the discretion of the judiciary than we on these Benches, and me in particular, not to mention the noble Baroness, Lady Anelay.
I am not satisfied with that reply. I ask your Lordships to agree with my amendment, and I propose to test the opinion of the House.
§ 7.57 p.m.
§ On Question, Whether the said amendment (No. 11A) shall be agreed to?
§ Their Lordships divided: Contents, 84; Not-Contents, 96.228
|Division No. 3|
|Addington, L.||Kingsland, L.|
|Anelay of St Johns, B.||Knight of Collingtree, B.|
|Astor of Hever, L.||Laidlaw, L.|
|Attlee, E.||Linklater of Butterstone, B.|
|Blaker, L.||Livsey of Talgarth, L.|
|Bonham-Carter of Yarnbury, B.||Lucas, L.|
|Bradshaw, L.||Luke, L.|
|Brougham and Vaux, L.||Lyell, L.|
|Burnham, L.||Mackie of Benshie, L.|
|Buscombe, B.||McNally, L.|
|Byford, B.||Marlesford, L.|
|Carlisle of Bucklow, L.||Masham of Ilton, B.|
|Carnegy of Lour, B.||Mayhew of Twysden, L.|
|Clement-Jones, L.||Michie of Gallanach, B.|
|Colwyn, L.||Miller of Chilthorne Domer, B.|
|Cope of Berkeley, L.||Monro of Langholm, L.|
|Denham, L.||Montrose, D.|
|Dholakia, L.||Morris of Bolton, B.|
|Dixon-Smith, L.||Neuberger, B.|
|Donaldson of Lymington, L.||Newton of Braintree, L.|
|D'Souza, B.||Noakes, B.|
|Dundee, E.||Northover, B.|
|Dykes, L.||Norton of Louth, L.|
|Elliott of Morpeth, L.||Park of Monmouth, B.|
|Fearn, L.||Prashar, B.|
|Flather, B.||Razzall, L.|
|Glenarthur, L.||Rennard, L.|
|Hamwee, B.||Roberts of Llandudno, L.|
|Higgins, L.||Rogan, L.|
|Hodgson of Astley Abbotts, L.||Roper, L. [Teller]|
|Hooper, B.||Rotherwick, L.|
|Hooson, L.||Russell-Johnston, L.|
|Howard of Rising, L.||Sandberg, L.|
|Howe of Idlicote, B.||Seccombe, B.|
|Jenkin of Roding, L.||Selsdon, L.|
|Kimball, L.||Sharp of Guildford, B.|
|King of Bridgwater, L.||Sharples, B.|
|Shutt of Greetland, L.||Walmsley, B.|
|Skelmersdale, L. [Teller]||Watson of Richmond, L.|
|Smith of Clifton, L.||Williams of Crosby, B.|
|Thomas of Gresford, L.||Williamson of Horton, L.|
|Ullswater, V.||Windlesham, L.|
|Acton, L.||Hoyle, L.|
|Alli, L.||Hughes of Woodside, L.|
|Amos, B. (Lord President of the Council)||Hunt of Kings Heath, L.|
|Archer of Sandwell, L.||Judd, L.|
|Ashton of Upholland, B.||Kirkhill, L.|
|Bach, L.||Laird, L.|
|Bassam of Brighton, L.||Leitch, L.|
|Billingham, B.||Lockwood, B.|
|Borrie, L.||McCarthy, L.|
|Brennan, L.||McDonagh, B.|
|Brooke of Alverthorpe, L.||McIntosh of Haringey, L.|
|Brookman, L.||McIntosh of Hudnall, B.|
|Burlison, L.||MacKenzie of Culkein, L.|
|Carter, L.||McKenzie of Luton, L.|
|Carter of Coles, L.||Mason of Barnsley, L.|
|Chan, L.||Massey of Darwen, B.|
|Clark of Windermere, L.||Maxton, L.|
|Corbett of Castle Vale, L.||Merlyn-Rees, L.|
|Crawley, B.||Mitchell, L.|
|David, B.||Morgan of Drefelin, B.|
|Davies of Coity, L.||Parekh, L.|
|Davies of Oldham, L.[Teller]||Plant of Highfield, L.|
|Dixon, L.||Radice, L.|
|Drayson, L.||Rendell of Babergh, B.|
|Dubs, L.||Rooker, L.|
|Elder, L.||Rosser, L.|
|Evans of Parkside L.||Rowlands, L.|
|Evans of Temple Guiting, L.||Royall of Blaisdon, B.|
|Farrington of Ribbleton, B.||Scotland of Asthal, B.|
|Faulkner of Worcester, L.||Sewel, L.|
|Fitt, L.||Simon, V.|
|Fyfe of Fairfield, L.||Smith of Leigh, L.|
|Gale, B.||Stone of Blackheath, L.|
|Gibson of Market Rasen, B.||Symons of Vernham Dean, B.|
|Gilbert, L.||Taylor of Blackburn, L.|
|Goudie, B.||Temple-Morris, L.|
|Gould of Potternewton, B.||Thornton, B.|
|Graham of Edmonton, L.||Tomlinson, L.|
|Griffiths of Burry Port, L.||Triesman, L.|
|Grocott, L. [Teller]||Truscott, L.|
|Harris of Haringey, L.||Tunnicliffe, L.|
|Hart of Chilton, L.||Turnberg, L.|
|Haskel, L.||Turner of Camden, B.|
|Haworth, L.||Wall of New Barnet, B.|
|Henig, B.||Warner, L.|
|Hilton of Eggardon, B.||Whitaker, B.|
|Hollis of Heigham, B.||Young of Norwood Green, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ On Question, Motion agreed to.
§ 8.7 p.m.