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Orders Of The Day

Volume 405: debated on Monday 19 May 2003

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Criminal Justice Bill

[2nd Allotted Day]

As amended in the Standing Committee, further considered.

Government New Clause 14

Taking Fingerprints Without Consent

(1) Section 61 of the 1984 Act (fingerprinting) is amended as follows.

(2) For subsections (3) and (4) (taking of fingerprints without appropriate consent) there is substituted—

"(3) The fingerprints of a person detained at a police station may be taken without the appropriate consent if—

  • (a) he is detained in consequence of his arrest for a recordable offence; and
  • (b) he has not had his fingerprints taken in the course of the investigation of the offence by the police.
  • (4) The fingerprints of a person detained at a police station may be taken without the appropriate consent if—

  • (a) he has been charged with a recordable offence or informed that he will be reported for such an offence; and
  • (b) he has not had his fingerprints taken in the course of the investigation of the offence by the police."
  • (3) In subsection (3A) (disregard of incomplete or unsatisfactory fingerprints) for the words from the beginning to "subsection (3) above" there is substituted "Where a person mentioned in paragraph (a) of subsection (3) or (4) has already had his fingerprints taken in the course of the investigation of the offence by the police".

    (4) In subsection (5) (authorisation to be given or confirmed in writing) for "subsection (3)(a) or (4A)" there is substituted "subsection (4A)".

    (5) In subsection (7) (reasons for taking of fingerprints without consent) for "subsection (3) or (6)" there is substituted "subsection (3), (4) or (6)".'.

    [Mr.Bob Ainsworth.]

    Brought up, and read the First time.

    4.3 pm

    The Parliamentary Under-Secretary of State for the Home Department
    (Mr. Bob Ainsworth)

    I beg to move, That the clause be read a Second time.

    Amendment (a) to the proposed new clause, in subsection (3)(a) after "offence', inserts

    'and an officer of at least the rank of inspector authorises them to be taken'.

    Government new clause 15— Taking non-intimate samples without consent

  • '(1) Section 63 of the 1984 Act (other samples) is amended as follows.
  • (2) After subsection (2) (consent to be given in writing) there is inserted—
  • "(2A) A non-intimate sample may be taken from a person without the appropriate consent if two conditions are satisfied.
  • (2B) The first is that the person is in police detention in consequence of his arrest for a recordable offence.
  • (2C) The second is that—
  • (a) he has not had a non-intimate sample of the same type and from the same part of the body taken in the course of the investigation of the offence by the police, or
  • (b) he has had such a sample taken but it proved insufficient."
  • (3) In subsection (3)(a) (taking of samples without appropriate consent) the words "is in police detention or" are omitted.
  • (4) In subsection (3A) (taking of samples without appropriate consent after charge) for "(whether or not he falls within subsection (3)(a) above)" there is substituted "(whether or not he is in police detention or held in custody by the police on the authority of a court)".
  • (5) In subsection (8A) (reasons for taking of samples without consent) for "subsection (3A)" there is substituted "subsection (2A), (3A)".'.
  • And the following amendments thereto: (a), in subsection (2A), after 'appropriate consent if' leave out 'two' and insert 'three'.

    (b), at end of (2C) insert

    '(2D) The third is that an officer of at least the rank of inspector authorises them to be taken.'.

    New clause 20— Arrest without warrant for arrestable offences

    '.—After subsection (5) of section 24 of the 1984 Act there is inserted—
    "(5A) Any person may arrest, without warrant, any person who is accused by an apparently credible witness of having committed an arrestable offence shortly before the accusation is made.".'.

    New clause 55— Destruction of fingerprints and samples

    '(1) Section 64 of the 1984 Act (destruction of fingerprints and samples) is amended as follows:

    (2) In subsection (3) the words', except as provided in the following provisions of this section,' are omitted.

    (3) Subsections (3AA), (3AB) and (3AC) are omitted.'.

    Amendment No. 122, in page 5, line 18 [Clause 7], leave out "and' and insert—

  • "(ba) The Law Society of England and Wales,
  • (bb) The Bar Council,
  • (bc) The Institute of Legal Executives, and'.
  • Amendment No. 167, in page 5, line 18 [Clause 7], leave out 'and' and insert—

    "(ba) the Home Affairs Committee'.

    Amendment No. 54, in page 5, line 21 [Clause 7], at end insert—

    '(6) No code or revised code issued under this section shall have effect until approved by a resolution of each House of Parliament.'.

    Amendment No. 55, in page 5, line 36 [Clause 7], at end insert—

    '(7A) No code or revised code issued under this section shall have effect until approved by resolution of each House of Parliament.'.

    Amendment No. 169, in page 6, line 2, leave out clause 9.

    Amendment No. 57, in page 6, line 7 [Clause 9], leave out second "a' and insert 'such'.

    Amendment No. 58, in page 6, line 7 [Clause 9], leave out second "drug' and insert 'drugs'.

    Amendment No. 59, in page 6, line 8 [Clause 9], at end insert—

    "as are identified as cannabis or cannabis resin'.

    Amendment No. 170, in page 6, line 41 [Clause 10], leave out 'different' and insert 'higher'.

    Government amendments Nos. 231 and 109.

    I shall speak mainly to Government new clauses 14 and 15 and Government amendments Nos. 231 and 109, and deal with the other amendments in a diverse group as briefly as I can.

    Under the Police and Criminal Evidence Act 1984, the police may currently take fingerprints from all those charged with, informed that they will be reported for, or convicted of, a recordable offence. With the authority of an inspector, the police may also take fingerprints from those suspected of a criminal offence where there are reasonable grounds for believing that the fingerprints will tend to confirm or disprove the suspect's involvement.

    PACE also permits the police to take a person's fingerprints when they have reason to believe that they will confirm, disprove or assist in ascertaining the suspect's identity. An inspector's authority is required and the person must have refused to identify himself or herself or the officer must have reasonable grounds to suspect that the person is not who they claim to be. So the police can miss the opportunity to establish a detained person's true identity if they lie about who they are and the police have no reason to suspect that they have lied.

    The problem presents itself even more acutely now that we have the new Livescan technology, which can check a fingerprint against national records while the detained person can be reasonably expected to be in custody. New clause 14 will enable those who seek to evade justice by giving the police a false identity to be properly identified and dealt with through the due process of law. There will be a link to the police national computer, which may reveal whether the person is believed to be a danger to themselves or to others, or perhaps requires medication or an appropriate adult to be present during an interview.

    New clause 14 has been welcomed by the police. The power to take fingerprints pre-charge has civil liberties implications. I recognise those concerns, but the intrusion on personal liberty is both necessary and proportionate to the benefits for the victims of crime and society generally, in detecting crime and protecting the public from criminals.

    The Court of Appeal has recently considered those issues in a judicial review brought by a juvenile known as S and an individual known as Michael Marper against the chief constable of South Yorkshire. Both had their fingerprints and a sample of DNA taken when they were charged and each asked the chief constable to destroy their fingerprints and DNA samples and to remove their DNA profile from the national database. When proceedings against them had finished, the chief constable decided to retain the fingerprints. The Court of Appeal found that, although limited interference under article 8(1) of the European convention on human rights took place, it was proportionate to the benefits that accrue to the victims of crime and society as a whole and to the prevention and detection of crime.

    New clause 15 would allow non-intimate samples to be taken from anyone arrested for a recordable offence and detained in a police station. A non-intimate sample is defined by section 65 of PACE and includes hair, mouth swabs, saliva and skin impressions. Currently, the police may take non-intimate samples from all those charged with, informed that they will be reported for, or convicted of a recordable offence. On the authority of an inspector, a non-intimate sample may be taken from those suspected of a recordable offence where reasonable grounds exist to believe that the sample will tend to confirm or disprove the suspect's identity.

    The new power to take non-intimate samples from people arrested for a recordable offence and detained at a police station will enable a DNA profile to be obtained and a search to be made on the database for matches with a crime-scene stain.

    If this problem has been known for some time, why was not such a clause included in the original Bill or introduced in Committee?

    New clauses 14 and 15 have been introduced after discussions with the police. I have talked about the new fingerprinting technology that is now available, and I am sure that the hon. Gentleman would agree, if he agrees that the proportionality is reasonable, that we should not delay introducing these changes because they will clearly help in the detection of crime.

    So that hon. Members on both sides of the House are clear about this, may I say that this issue was raised in Committee? I did so myself, and the Minister of State, Department for International Development, my hon. Friend the Member for Leeds, Central (Hilary Benn)—who conducted himself so superbly in Committee—agreed that the Government would consider it, so I am very grateful to them for introducing the proposal.

    I thank my hon. Friend for that intervention. He had the benefit of serving on the Standing Committee. Of course I did not do so. Knowing that the issue was discussed with some concern in Committee adds to my argument for us to get on and deal with it.

    Are there not two issues? The first is the propriety of taking samples, whether DNA or fingerprints, from someone who has been arrested but not charged, for the purpose of checking whether they might be wanted for, or implicated in, some other offence. The second is the decision to add that material to a national DNA database. If what we are really doing is extending the criteria for addition to the DNA database to people who have been arrested and not charged, would it not be better simply to say that it is the Government's view that everybody in the country should provide fingerprints and DNA samples for crime-prevention purposes? That is in fact what the Government are slowly moving towards by stealth.

    There is no justification for saying that. I read out the decision taken by the Court of Appeal on the retention of fingerprints. I see no reason, in principle, why the same decision would not be reached on DNA. There is a good case for taking samples, whether DNA or fingerprints, in the circumstances that have been described. Having taken them, should they be destroyed? Other evidence gathered in the course of an investigation is not necessarily destroyed. It would be a big step to move from that to the hon. Gentleman's idea that there should be a complete database with everybody's fingerprints and DNA. There are wholly different issues to think about in that regard.

    In a completely non-partisan context, may I raise a different matter that relates to the experience of one of my constituents? My constituent lost his daughter in a road accident in 1984 as a result of reckless driving. On the occasion of the accident, the person who was subsequently proved to have been the culprit was, for a relatively brief period, unconscious. Under the law, was it right—my constituent does not think so—that there was no subsequent opportunity to breathalyse the defendant, who was subsequently convicted of dangerous driving? My constituent will never know whether, as he suspects, the man concerned was under the influence. I am not saying that that is the point of the provision, but is there any intention to address that issue?

    We have talked about such issues and tried to deal with them. I am not insensitive to the issue raised by the hon. Gentleman, but we have only a relatively short time to debate this group of amendments, after Opposition Members discussed the programme motion and voted against it. I have taken interventions, and I do not want to extend the debate to an issue that is not covered by the amendments and new clauses that we are discussing.

    I will give way to the hon. Gentleman but then I must make some progress, as other Members want to contribute.

    May I take the Minister back to an earlier point that is central to the debate? Will he explain why someone who is not convicted of a criminal offence, and someone who is arrested but against whom no further action is taken and who is thus also not convicted of a criminal offence, should be treated differently in the criminal justice system? Why should the state record details in one case where a person who is completely innocent and not in the other? What is the logic?

    The logic is to provide proportionality and to deal with crime and to protect our communities from crime. The hon. Gentleman cannot have been listening when I read out the Court of Appeal decision in the judicial review of decisions to retain the DNA and fingerprints of the two individuals concerned. The Court of Appeal does not find that problem insurmountable, even if he does so, there is no huge matter of principle. The point is whether it is proportionate to the size of the problem to allow those records to be kept. I believe that it is, and that a clear case can be made for keeping both DNA samples and fingerprints. For the reasons that I set out in relation to the new clause on fingerprints, the extension of police powers to retain DNA samples is both necessary and proportionate.

    4.15 pm

    I now turn to the Opposition amendments to new clause 14. In response to amendment (a), it is important that the police can act quickly and systematically, and the amendment would introduce an unnecessary layer of bureaucracy. The same applies to amendments (a) and (b) to new clause 15. Imposing a restriction whereby the taking of a sample must be authorised by an inspector or above could result in crimes going undetected and introduce an unnecessary layer of bureaucracy.

    On Opposition new clause 55, which deals with destroying fingerprints and samples, it is important for the police to be able to retain all the information assembled during an investigation of an offence, not least to enable them to investigate a possible miscarriage of justice in the future. The police can already retain other information gathered as part of an investigation, such as witness statements, photographs and so on, and samples and fingerprints taken from a person who has been arrested during an investigation are not fundamentally different from those. Samples will be available to the police in the event of that suspect committing an offence in the future. Law-abiding citizens should have nothing to fear, as they will be used only for the prevention and the investigation of crime.

    I have given way a great deal, and I need to get on and deal with this group of amendments, to allow other Members, perhaps including the hon. Gentleman, to speak.

    In relation to new clause 20, on citizen's arrest, it seeks to extend the circumstances in which a citizen may make an arrest. The Police and Criminal Evidence Act 1984 already allows a citizen's arrest in circumstances in which an arrestable offence has in fact been committed. The new clause could be interpreted as extending that scope for arrest to cover circumstances in which there is no certainty that an arrestable offence had been committed, but only a believable accusation. Powers to arrest when there is merely a suspicion are best left to the judgment and experience of a police officer.

    Amendment No. 54 would require the retention of the affirmative resolution procedure for new and revised PACE codes. I understand that there was extensive discussion of the issue in Committee, and following that discussion, trying to take into account the views of the Home Affairs Committee, we have considered the procedural options for dealing with new and amended codes. We accept that the affirmative procedure is justified for new codes and for significant amendments. We have been trying, however, to devise a quicker route for handling minor and straightforward changes. We have looked at the scope for involving the Home Affairs Committee in advising on whether specific changes warrant detailed parliamentary scrutiny, but substantial difficulties exist in terms of specifying a role for the Committee in the Bill.

    A more workable alternative might be to amend the legislation so that there is effectively a choice between affirmative resolution and merely laying any proposed changes before Parliament. Ministers could then undertake in Parliament to seek to be bound by the Home Affairs Committee advice in each individual case. That might effectively ensure that the Committee had oversight of which procedure should be adopted, without referring to the Committee in the Bill, and might be a way of resolving the conflict between the need for flexibility and the need for proper scrutiny. It is therefore a difficult problem, which needs more consideration. We would be grateful to hear further views in the light of what I have just suggested, and against that background I would ask that the amendments be withdrawn, although we would be happy to return to the issue to deal with other Members' views in another place.

    Amendment No. 55 would require the affirmative resolution procedure for analogous codes covering the work of military police forces. Currently, such codes are subject only to negative resolution. They tend to follow the PACE codes, and we think that there is a good case for exempting them from specific parliamentary procedure. I therefore ask the Opposition to withdraw the amendment.

    The Minister says that the military code tends to follow PACE. If so, I follow his points, but given the degree to which it diverges from PACE, it seems that the Minister is on a bad point.

    I have said that, by and large, the code tends to follow PACE. I do not know whether the right hon. and learned Gentleman considers it useful to take up the time of the House discussing what are effectively duplications in most cases. I shall be happy to listen to views on that. However, we do not believe that there is a case for the affirmative resolution procedure to be used, certainly in regard to analogous codes.

    On a point of order, Mr. Speaker. The Minister has repeatedly adverted to the inadequacy of the timetable motion. Is there any way in which the Minister and the Government can return to a further programming committee to seek more time so that we can properly debate the Bill? The Minister keeps saying that inadequate time is the reason for not debating matters in this place. That is the message that is coming from the horse's mouth. Can you help the Government out of the fix of their own making?

    It is not a matter for the Minister because the House has decided to agree to the programme motion, and therefore it is the property of the House.

    The hon. Member for Hertsmere (Mr. Clappison) should listen to what I say. I was talking about whether it would be useful for the House to spend time discussing changes to the military codes in future. I was not talking about the time that we spend dealing with the Bill now. We would have had a little more time today if Members had not spoken against the programme motion and divided on it. We would have had an extra hour and a quarter to discuss these matters rather than the truncated debate that will now take place.

    As for amendment No. 122, we believe that it is sensible to extend the consultation requirements to the Law Society and the Bar Council but that it is unnecessary to extend them to the Institute of Legal Executives. The Law Society and the Bar Council adequately represent a broad range of legal perspectives. The institute could be consulted where a particular need arose.

    Amendment No. 167 relates to consulting the Home Affairs Committee. That needs to be considered in line with what I said earlier about potential changes to the code.

    I would like to give way to the hon. Gentleman, but Conservative Back Benchers are demanding that I take less time at the Dispatch Box. The hon. Gentleman speaks for the Opposition Front Bench, and I will give way to him if he wishes me to do so. However, I hope that I do not get—

    I will not give way. I shall make some progress.

    I move on to the amendments to clause 9, which deals with powers of arrest for possession of class C drugs. My right hon. Friend the Home Secretary announced his intention to bring forward reclassification of cannabis from class B to class C under the Misuse of Drugs Act 1971. In conjunction with that, my right hon. Friend announced that the police would continue to be able to arrest persons for offences of possession of cannabis where public order was threatened.

    Under guidance issued by the Association of Chief Police Officers, for most offences of cannabis possession, a police warning will be sufficient along with confiscation of the drug. However, where there is a public order problem or where children are at risk, the result could be an arrest. We do not believe that clause 9 sends mixed messages. The message that we are sending is that cannabis is harmful, but not as harmful as other class A or B drugs. That is reflected in law enforcement. The power of arrest for possession of cannabis will be used sparingly, and the penalties are different.

    On amendments Nos. 57 to 59, it would be inconsistent with the principles underlying the classification structure of the Misuse of Drugs Act to have a specific law for cannabis. The Government believe that it is right that cannabis should be in class C. The power of arrest would be used only in limited circumstances. In practice, we envisage very few cases indeed where the power of arrest would be appropriate in relation to other class C drugs. The problem is more apparent than real.

    With regard to new clauses 14 and 15, the Opposition fully understand the concern of the police that it may be a powerful tool in the detection of crime if they have the opportunity, when somebody is arrested and brought into the police station for another matter, to obtain, prior to charge, non-intimate DNA samples and to take fingerprints, so as to check whether that person might be wanted in connection with some other, possibly far more serious, matter. It is a pragmatic approach, but it is based on the knowledge that often, when police officers pick up somebody for some minor matter, something far more serious may be lurking behind.

    If that were the sole purpose of the new clauses, we would be willing to go along with it. But the Government are seeking through the new clauses to add to a mischief that they introduced in the 2001 Act and to provide that, although somebody may have no criminal conviction against their name and may never even have been charged with any offence, the material collected from them by way of a non-intimate DNA sample or by way of fingerprint when they are brought into the police station will be retained and added to the national database. That potentially involves a very large number of people. Some 1.2 million people per annum are arrested for possible recordable offences, although that does not mean that that number are charged.

    The Minister seemed to miss the point when he answered the intervention earlier. There may well be a thoroughly sound argument that matters have moved on so much in the possibilities of scientific analysis and detection that the time has come when, for the sake of the prevention of crime, all of us, law-abiding and non-law-abiding, should voluntarily or compulsorily provide our DNA and our fingerprints to the state, so that if an offence is committed, rapid checks can be carried out. There are some who would oppose that on civil liberties grounds. It would undoubtedly be a considerable intrusion into civil liberties, but it is perfectly capable of rational justification, if that is what the Minister wishes to do.

    However, what is being done through the new clauses is yet again to create a new category of—excuse me using the word—Untermenschen, a sort of sub-people who, although they may have done nothing wrong, must figure in the national database, whereas other people are excluded from it. I find that, as a philosophical position, deeply unsatisfactory and offensive. The Conservatives objected to the 2001 extension for that reason. Whatever the Court of Appeal may say or do, I disagree with it. The court is there to interpret the law. Parliament passed the law. In this context, it was a thoroughly bad law, and now the Minister's proposals would compound the matter.

    Law-abiding people who have never been in trouble with the police in their life, who were taken into the police station for some minor matter from which they may be totally exonerated half an hour or 45 minutes later, will find, to their deep resentment that their DNA and fingerprints have been added to the national database. The opportunities for abuse of the measure are obvious. The police can easily arrest somebody and release them afterwards. The chances of anybody having some subsequent recourse or bringing proceedings are slight. People do not normally act in that way. I say to the Minister that there will be a new class of people who are dissatisfied and discontented with the way in which policing is carried out in this country. As my right hon. Friend the Member for West Dorset (Mr. Letwin) recently pointed out, the state is good on the easy cases—it arrests and criminalises people who are usually law-abiding—but poor at dealing with those whom society requires should be dealt with. For those reasons, we object to the new clause, and if the Government are not prepared to accept an amendment ensuring that the DNA and fingerprints would be destroyed, we will oppose it.

    4.30 pm

    As the hon. Gentleman, too, was present at the many Standing Committee sittings, he will recall clearly that the Minister who was then responsible for the Bill frequently prayed in aid experience, practice and procedure in other common-law jurisdictions. Is he aware of any other common-law jurisdiction in which such provision is the practice or procedure?

    I am not aware of any such jurisdiction. Indeed, on normal common-law principles, the provision is highly offensive. It runs contrary to every aspect of our national tradition, because law-abiding individuals who do not bring themselves into trouble by being successfully prosecuted and convicted should not have any personal details about them retained on police files—in particular, their fingerprints and DNA.

    I object fundamentally to the proposal and I do not understand the rationale behind it. Indeed, when I met the Association of Chief Police Officers to discuss the proposal when it was first raised, it did not suggest that such material had to be retained. It wanted power to obtain fingerprints and DNA to make the comparison, but there was no suggestion that it wanted to add those data to the national database.

    Might I suggest what may be a motive and is undoubtedly a vice? On recognising that the new clauses allow the acquisition of non-intimate samples and/or fingerprints, the police might go on a fishing expedition and make an arrest for which there is no adequate justification in order to use the powers and obtain the samples to further their inquiries. While there may be a case for such an approach, if it is to be taken, it needs to be made overt. The provision is a panacea for fishing.

    I agree entirely with my right hon. and learned Friend. Indeed, I sought to make that very point earlier. The system could be open to abuse and lead to claims that people have been persecuted for the sake of getting them into the police station under a pretext of arrest.

    In the limited time available, I shall not speak any further about new clauses 14 and 15, except to say that we oppose them and will press new clause 15 to a vote. I wish now to turn to the other matters that have been touched on, as there are other very important matters to be considered, although, frankly, we do not have the opportunity to do them justice.

    I am delighted to hear from the Minister that he is in favour of consultation with groups about any changes to the Police and Criminal Evidence Act 1984. He specifically mentioned the Bar Council and the Law Society. Am I to take it that the Government propose to table an amendment in another place specifically to provide that they should be consulted? I see the Minister nodding, but he had better put it on record.

    I make it clear that, if the hon. Gentleman does not press his amendment, we will table an amendment to do precisely that.

    I am grateful to the Minister. I appreciate the point that he makes, but the reason why we seek to add the Institute of Legal Executives to the list is that those who attend at police stations for the interview of suspects are frequently members of that organisation and not qualified solicitors. In those circumstances, people in that single category probably have the most experience of the way in which the police operate PACE on a daily basis. Of course, the Bar may be involved in unravelling the problems of PACE if there is a challenge in the courts afterwards, and there will be occasions when solicitors attend. We will not press the amendment to a vote. I am grateful to the Minister, but I urge him to think about the Institute of Legal Executives. I think that the Government will find that they have to consult it during any revision of the codes, because it plays an important part in their operation.

    As my hon. Friend is talking about reviewing the Police and Criminal Evidence Act, does he agree with new clause 20, which is in my name and would ensure a proper review of security guards' powers of arrest? It is clear that they have the power to arrest someone when they see an offence committed, but it is not clear whether they would be able to do so if another security guard saw it on closed circuit television. Does my hon. Friend agree that this is an important issue? If we are to crack down on shoplifting, the Government should give my new clause a fair hearing, not the time that we have been allowed this afternoon.

    I agree entirely with my hon. Friend. I did not take his new clause in sequence, because I wanted to leave it to the end and take more time over it. As he has raised it, I might as well deal with it now.

    My hon. Friend raises an important point. We talk about the police officer being a citizen in uniform, but we give the police very great powers reasonably to carry out an arrest on suspicion. We are very short of police officers at the moment—

    We are very short of police officers who can carry out the necessary work of policing, but we are disempowering individuals so that they cannot take perfectly reasonable action to prevent crime or apprehend criminals.

    My hon. Friend's new clause merits serious consideration. It would certainly make it easier for someone to carry out a citizen's arrest. After all, the Minister and the Government have been extending the categories in which hearsay evidence is allowed in court. Oddly enough, however, if one's granny says that she has been mugged, but one was not at the scene and did not witness the mugging, one's ability to arrest the individual will be limited. That is an important matter, and we cannot do justice to it in the time available.

    In one of his amendments, the hon. Gentleman wants to give powers of consultation to his own trade union—the Bar Council. Would he like to extend such powers to the shop workers' trade union—the Union of Shop, Distributive and Allied Workers?

    That needs to be debated at greater length, which shows what a mockery the timetable is. However, let me move on, because I want to give other hon. Members time to speak.

    On the approval of the codes, I am grateful to the Minister for accepting the strong representations that the Opposition made in Committee on the need for the affirmative procedure. I am delighted about that, and I shall say no more about the issue. We shall look at the details when they appear in the other place.

    Finally, I turn to the question of class C drugs. I do not want to get bogged down on whether cannabis should be a class B or a class C drug. The Government have made their decision, which has been both criticised and approved, depending on people's standpoint. What is extraordinary, however, is that by moving cannabis into the class C category, the Government have made all offences involving class C drugs arrestable. That is complete nonsense because those offences encompass such banal things as walking around in the street with ordinary prescription drugs or, indeed, drugs that may be banned nationally, such as steroids, which are not exactly abused on a large scale. There is absolutely no justification for making such things arrestable, when the Government accepted in Committee the fact that other class C drugs were not arrestable and had never caused a problem. Indeed, in the last year for which figures were available, there were only, prior to cannabis being made a class C drug, 450 prosecutions for possession of a class C drug in England and Wales. The problem is minute, and the Government are taking a sledgehammer to crack a nut.

    Surely the hon. Gentleman accepts that we are giving a power of arrest that will have to be limited in its use by guidance to be drawn up by ACPO. The problem that he raises is an apparent problem only, in that I cannot envisage circumstances in which the power of arrest will be used for any other class C drug. He should address the reality of what is being done, not seek to dress it up differently.

    The Minister is doing something that the Government do all the time nowadays. They say, "This is a power that we need to have, but it will be exercised in a particular way." I see no reason why they should take a power that they do not intend to exercise. The class C list includes 117 substances other than cannabis and cannabis resin, and more have been added in the past week or two. Having moved cannabis and cannabis resin to class C, the Government are completely distorting the mechanisms of class C to accommodate it. Much better than that ludicrous tinkering would be simply to make cannabis and cannabis resin a discrete drug that is arrestable within class C.

    Does my hon. Friend agree that what the Minister said—namely, that the power of arrest shall depend on ACPO, an unaccountable body—is deeply offensive to this House?

    I entirely agree with my right hon. and learned Friend. That is why we would have sought, but probably will not have the opportunity, to put our amendments to the vote.

    The folly of the timetable is clearly demonstrated by the fact that we have six minutes left with many hon. Members wishing to contribute to the debate on a group of amendments that covers fingerprints, citizen's arrest, retention of DNA samples, consultation, the important disputed issue of drugs—about which we should like to say a great deal more—and the rules under which PACE will operate.

    The Government may have a case for testing prior to charge for DNA samples or for fingerprints. They do not, however, have a case for retaining that evidence solely for those who happen to have crossed the portals of a police station under arrest, but not for the rest of the population. One is either innocent or not innocent: we cannot establish a new category of people whom we do not like the look of and on whom we will retain evidence sine die for use on a future occasion. The problem is that the police will inevitably use that provision, which is on a par with those in the rest of the Bill. Increasingly, someone who has been convicted of an offence that may or may not be relevant, accused of or charged with an offence, or arrested is considered to be the likely suspect and no longer has the same standards of liberty as the rest of the population. I know that the Home Secretary has a somewhat Laodicean view of human rights, but that is not good enough, and it is time that the House made that clear. If a national database is to be established, let the Government come clean and say that that is what they intend.

    Would a national database established under independent auspices, rather than the auspices of the state or the police, allay some of the hon Gentleman's fears? Would he consider allowing voluntary entries to the DNA database so that people could be checked when necessary? I hope that he would concede that a lot of good has come from DNA testing.

    Of course I would concede the latter point. We need to have a debate about the matter. It is interesting that when it was first raised in 2001, police officers were invited to provide DNA samples. A great number did not wish to do so: perhaps that tells its own story. I do not accept, however, the halfway house that the Government propose.

    The group covers other important matters. We have already debated future procedure for amendments to codes of conduct under the Police and Criminal Evidence Act 1984. The Government are moving in the direction that we wanted, for which I am grateful. I look forward to the outcome of those deliberations. The Minister rejected my view that an inspector's agreement should be required for taking samples in a police station. That is the position under PACE. The Minister claims that it is bureaucratic and unnecessary, but I believe that it may be a useful safeguard.

    4.45 pm

    I want to speak briefly about amendments Nos. 169 and 170, which Liberal Democrat Members tabled. They relate to the point that the hon. Member for Beaconsfield (Mr. Grieve) made about the unholy mess that the Government have made of their position on drugs law. Irrespective of one's views on cannabis reclassification, it is especially absurd that at the same time as the Government do that, they introduce it as an arrestable offence together with possession of a variety of other substances that should never be included in that category.

    We support a clearly defined drugs policy, with objectives that people understand, that is not undermined by inconsistency but that points people in the direction of the treatment that they need. The Bill does nothing to help that process. If we have the opportunity, we should like to test hon. Members' opinion of amendment No. 169. The debate has been wholly inadequate on such an important subject. It underlines the inadequacy of today's programme motion.

    We need a national debate on DNA and whether there should be a national database. We should also hold a further debate, which I hope the Government will sponsor, on whether we can extend DNA databases on a voluntary basis.

    I want to reinforce the point of my hon. Friend the Member for Beaconsfield (Mr. Grieve) on new clause 15, which will enable the police to go on fishing expeditions. When I first became a Member of Parliament, there was much debate about the vagrancy Acts and the power to arrest people on suspicion. We are now giving the police precisely the same sort of power, which they will use to obtain fingerprints and/or intimate or non-intimate samples from people against whom there is insufficient evidence.

    It being one and a quarter hours after the commencement of proceedings on the programme motion, MADAM DEPUTY SPEAKER, pursuant to Orders [4 February, 5 March, 2 April and this day] put forthwith the Question already proposed from the Chair.

    Question accordingly agreed to.

    Clause read a Second time, and added to the Bill.

    MADAM DEPUTY SPEAKER then proceeded to put forthwith the Questions necessary for the disposal of the business to be concluded at that hour.

    Amendment proposed: No. 169, in page 6, line 2, leave out Clause 9— [Mr. Heath.]

    The House divided: Ayes 40, Noes 317.

    Division No. 203]

    [4:47 pm

    AYES

    Allan, RichardLaws, David (Yeovil)
    Brake, Tom (Carshalton)Llwyd, Elfyn
    Bruce, MalcolmOaten, Mark (Winchester)
    Burnett, JohnÖpik, Lembit
    Burnside, DavidPugh, Dr. John
    Burstow, PaulRendel, David
    Cable, Dr. VincentRussell, Bob (Colchester)
    Calton, Mrs PatsySanders, Adrian
    Carmichael, AlistairShepherd, Richard
    Chidgey, DavidSmith, Sir Robert (W Ab'd'ns & Kincardine)
    Cotter, Brian
    Davey, Edward (Kingston)Smyth, Rev. Martin (Belfast S)
    Doughty, SueStunell, Andrew
    Gidley, SandraTaylor, Matthew (Truro)
    Hancock, MikeThomas, Simon (Ceredigion)
    Harris, Dr. Evan (Oxford W & Abingdon)Tonge, Dr. Jenny
    Tyler, Paul (N Cornwall)
    Harvey, NickWebb, Steve (Northavon)
    Heath, DavidWillis, Phil
    Holmes, Paul
    Hughes, Simon (Southwark N)

    Tellers for the Ayes:

    Keetch, Paul

    Mrs. Annette L. Brooke and

    Lamb, Norman

    Mr. Alan Reid

    NOES

    Abbott, Ms DianeCampbell, Mrs Anne (C'bridge)
    Ainger, NickCampbell, Ronnie (Blyth V)
    Ainsworth, Bob (Cov'try NE)Caplin, Ivor
    Alexander, DouglasCasale, Roger
    Allen, GrahamCawsey, Ian (Brigg)
    Anderson, rh Donald (Swansea E)Challen, Colin
    Anderson, Janet (Rossendale & Darwen)Chapman, Ben (Wirral S)
    Chaytor, David
    Armstrong, rh Ms HilaryClark, Mrs Helen (Peterborough)
    Atherton, Ms CandyClark, Dr. Lynda (Edinburgh Pentlands)
    Austin, John
    Bailey, AdrianClark, Paul (Gillingham)
    Baird, VeraClarke, rh Charles (Norwich S)
    Banks, TonyClarke, rh Tom (Coatbridge & Chryston)
    Barnes, Harry
    Battle, JohnClarke, Tony (Northampton S)
    Bayley, HughClelland, David
    Beard, NigelClwyd, Ann (Cynon V)
    Beckett, rh MargaretCoaker, Vernon
    Begg, Miss AnneCoffey, Ms Ann
    Bell, StuartColeman, Iain
    Benn, HilaryColman, Tony
    Benton, Joe (Bootle)Cook, Frank (Stockton N)
    Berry, RogerCook, rh Robin (Livingston)
    Blackman, LizCooper, Yvette
    Blears, Ms HazelCorbyn, Jeremy
    Blizzard, BobCorston, Jean
    Blunkett, rh DavidCousins, Jim
    Boateng, rh PaulCox, Tom (Tooting)
    Bradley, rh Keith (Withington)Crausby, David
    Bradshaw, BenCruddas, Jon
    Brennan, KevinCryer, John (Hornchurch)
    Brown, rh Nicholas (Newcastle E Wallsend)Cunningham, rh Dr. Jack (Copeland)
    Browne, DesmondCunningham, Jim (Coventry S)
    Bryant, ChrisCunningham, Tony (Workington)
    Burden, RichardCurtis-Thomas, Mrs Claire
    Burgon, ColinDalyell, Tam
    Burnham, AndyDavey, Valerie (Bristol W)
    Byers, rh StephenDavidson, Ian
    Caborn, rh RichardDavies, rh Denzil (Llanelli)
    Cairns, DavidDawson, Hilton
    Campbell, Alan (Tynemouth)Dean, Mrs Janet

    Denham, rh JohnJohnson, Alan (Hull W)
    Dhanda, ParmjitJones, Helen (Warrington N)
    Dismore, AndrewJones, Jon Owen (Cardiff C)
    Dobbin, Jim (Heywood)Jones, Kevan (N Durham)
    Donohoe, Brian H.Jowell, rh Tessa
    Doran, FrankJoyce, Eric (Falkirk W)
    Dowd, Jim (Lewisham W)Kaufman, rh Gerald
    Drew, David (Stroud)Keeble, Ms Sally
    Eagle, Angela (Wallasey)Keen, Ann (Brentford)
    Eagle, Maria (L'pool Garston)Kemp, Fraser
    Edwards, HuwKennedy, Jane (Wavertree)
    Efford, CliveKhabra, Piara S.
    Ellman, Mrs LouiseKidney, David
    Etherington, BillKilfoyle, Peter
    Farrelly, PaulKing, Andy (Rugby)
    Field, rh Frank (Birkenhead)King, Ms Oona (Bethnal Green & Bow)
    Fisher, Mark
    Fitzpatrick, JimKnight, Jim (S Dorset)
    Flynn, Paul (Newport W)Kumar, Dr. Ashok
    Follett, BarbaraLadyman, Dr. Stephen
    Foster, rh DerekLammy, David
    Foster, Michael (Worcester)Laxton, Bob (Derby N)
    Foster, Michael Jabez (Hastings & Rye)Lazarowicz, Mark
    Levitt, Tom (High Peak)
    Foulkes, rh GeorgeLewis, Terry (Worsley)
    Gapes, Mike (Ilford S)Linton, Martin
    Gardiner, BarryLove, Andrew
    Gerrard, NeilLucas, Ian (Wrexham)
    Gibson, Dr. IanMcAvoy, Thomas
    Gilroy, LindaMcCabe, Stephen
    Godsiff, RogerMcCafferty, Chris
    Goggins, PaulMcCartney, rh Ian
    Griffiths, Jane (Reading E)McDonagh, Siobhain
    Griffiths, Nigel (Edinburgh S)McDonnell, John
    Griffiths, Win (Bridgend)MacDougall, John
    Grogan, JohnMcGuire, Mrs Anne
    Hain, rh PeterMcIsaac, Shona
    Hall, Mike (Weaver Vale)McKechin, Ann
    Hall, Patrick (Bedford)Mackinlay, Andrew
    Hamilton, David (Midlothian)McNamara, Kevin
    Hamilton, Fabian (Leeds NE)McNulty, Tony
    Hanson, DavidMcWilliam, John
    Harman, rh Ms HarrietMahon, Mrs Alice
    Harris, Tom (Glasgow Cathcart)Mallaber, Judy
    Healey, JohnMandelson, rh Peter
    Henderson, Ivan (Harwich)Mann, John (Bassetlaw)
    Hendrick, MarkMarris, Rob (Wolverh'ton SW)
    Hepburn, StephenMarsden, Gordon (Blackpool S)
    Heppell, JohnMarshall, Jim (Leicester S)
    Hermon, LadyMarshall-Andrews, Robert
    Hesford, StephenMartlew, Eric
    Hewitt, rh Ms PatriciaMeacher, rh Michael
    Heyes, DavidMerron, Gillian
    Hill, Keith (Streatham)Michael, rh Alun
    Hinchliffe, DavidMiliband, David
    Hodge, MargaretMiller, Andrew
    Hoey, Kate (Vauxhall)Moffatt, Laura
    Hood, Jimmy (Clydesdale)Mole, Chris
    Hope, Phil (Corby)Moonie, Dr. Lewis
    Hopkins, KelvinMorley, Elliot
    Howarth, rh Alan (Newport E)Mullin, Chris
    Howarth, George (Knowsley N & Sefton E)Munn, Ms Meg
    Murphy, Denis (Wansbeck)
    Howells, Dr. KimMurphy, rh Paul (Torfaen)
    Hughes, Beverley (Stretford & Urmston)Naysmith, Dr. Doug
    Norris, Dan (Wansdyke)
    Hughes, Kevin (Doncaster N)O'Brien, Bill (Normanton)
    Hurst, Alan (Braintree)Olner, Bill
    Hutton, rh JohnO'Neill, Martin
    Iddon, Dr. BrianOrgan, Diana
    Ingram, rh AdamOsborne, Sandra (Ayr)
    Jackson, Glenda (Hampstead & Highgate)Palmer, Dr. Nick
    Pearson, Ian
    Jackson, Helen (Hillsborough)Perham, Linda
    Jamieson, DavidPicking, Anne
    Jenkins, BrianPickthall, Colin

    Pike, Peter (Burnley)Steinberg, Gerry
    Plaskitt, JamesStewart, David (Inverness E & Lochaber)
    Pollard, Kerry
    Pond, Chris (Gravesham)Stinchcombe, Paul
    Pope, Greg (Hyndburn)Stoate, Dr. Howard
    Pound, StephenStrang, rh Dr. Gavin
    Prentice, Ms Bridget (Lewisham E)Stringer, Graham
    Stuart, Ms Gisela
    Primarolo, rh DawnSutcliffe, Gerry
    Purnell, JamesTami, Mark (Alyn)
    Quin, rh JoyceTaylor, rh Ann (Dewsbury)
    Quinn, LawrieTaylor, Dari (Stockton S)
    Rammell, BillTaylor, David (NW Leics)
    Rapson, Syd (Portsmouth N)Thomas, Gareth (Clwyd W)
    Raynsford, rh NickThomas, Gareth (Harrow W)
    Reed, Andy (Loughborough)Timms, Stephen
    Reid, rh Dr. John (Hamilton N & Bellshill)Tipping, Paddy
    Todd, Mark (S Derbyshire)
    Robinson, Geoffrey (Coventry NW)Touhig, Don (Islwyn)
    Trickett, Jon
    Roche, Mrs BarbaraTruswell, Paul
    Rooney, TerryTurner, Dennis (Wolverh'ton SE)
    Ross, Ernie (Dundee W)Turner, Dr. Desmond (Brighton Kemptown)
    Roy, Frank (Motherwell)
    Ruane, ChrisTurner, Neil (Wigan)
    Ruddock, JoanTwigg, Derek (Halton)
    Ryan, Joan (Enfield N)Twigg, Stephen (Enfield)
    Salter, MartinTynan, Bill (Hamilton S)
    Sarwar, MohammadVis, Dr. Rudi
    Savidge, MalcolmWalley, Ms Joan
    Sawford, PhilWareing, Robert N.
    Sedgemore, BrianWatson, Tom (W Bromwich E)
    Shaw, JonathanWatts, David
    Sheerman, BarryWhite, Brian
    Sheridan, JimWhitehead, Dr. Alan
    Shipley, Ms DebraWicks, Malcolm
    Simpson, Alan (Nottingham S)Williams, rh Alan (Swansea W)
    Singh, MarshaWills, Michael
    Winnick, David
    Smith, rh Andrew (Oxford E)Winterton, Ms Rosie (Doncaster C)
    Smith, Angela (Basildon)
    Smith, Geraldine (Morecambe & Lunesdale)Woodward, Shaun
    Woolas, Phil
    Smith, Jacqui (Redditch)Worthington, Tony
    Smith, John (Glamorgan)Wright, Anthony D. (Gt Yarmouth)
    Smith, Llew (Blaenau Gwent)
    Soley, CliveWright, David (Telford)
    Southworth, Helen
    Spellar, rh John

    Tellers for the Noes:

    Squire, Rachel

    Charlotte Atkins and

    Starkey, Dr. Phyllis

    Mr. Jim Murphy

    Question accordingly negatived.

    New Clause 15

    Taking Non-Intimate Samples Without Consent

    "(1) Section 63 of the 1984 Act (other samples) is amended as follows.

    (2) After subsection (2) (consent to be given in writing) there is inserted—

    "(2A) A non-intimate sample may be taken from a person without the appropriate consent if two conditions are satisfied.

    (2B) The first is that the person is in police detention in consequence of his arrest for a recordable offence.

    (2C) The second is that—

  • (a) he has not had a non-intimate sample of the same type and from the same part of the body taken in the course of the investigation of the offence by the police, or
  • (b) he has had such a sample taken but it proved insufficient."
  • (3) In subsection (3)(a) (taking of samples without appropriate consent) the words "is in police detention or" are omitted.

    (4) In subsection (3A) (taking of samples without appropriate consent after charge) for "(whether or not he falls within subsection (3)(a) above)" there is substituted "(whether or not he is in police detention or held in custody by the police on the authority of a court)".

    (5) In subsection (8A) (reasons for taking of samples without consent) for "subsection (3A)" there is substituted "subsection (2A), (3A)".".

    [Mr. Bob Ainsworth.]

    Brought up, and read the First time.

    Motion made, and Question put, That the clause be read a Second time:—

    The House divided: Ayes 323, Noes 178.

    Division No. 204]

    [5:02 pm

    AYES

    Abbott, Ms DianeClark, Paul (Gillingham)
    Ainger, NickClarke, rh Charles (Norwich S)
    Ainsworth, Bob (Cov'try NE)Clarke, rh Tom (Coatbridge & Chryston)
    Alexander, Douglas
    Allen, GrahamClarke, Tony (Northampton S)
    Anderson, rh Donald (Swansea E)Clelland, David
    Anderson, Janet (Rossendale & Darwen)Clwyd, Ann (Cynon V)
    Coaker, Vernon
    Armstrong, rh Ms HilaryCoffey, Ms Ann
    Atherton, Ms CandyCohen, Harry
    Austin, JohnColeman, Iain
    Bailey, AdrianColman, Tony
    Baird, VeraCook, Frank (Stockton N)
    Banks, TonyCook, rh Robin (Livingston)
    Barnes, HarryCooper, Yvette
    Battle, JohnCorbyn, Jeremy
    Bayley, HughCorston, Jean
    Beard, NigelCousins, Jim
    Beckett, rh MargaretCox, Tom (Tooting)
    Begg, Miss AnneCrausby, David
    Bell, StuartCruddas, Jon
    Benn, HilaryCryer, John (Hornchurch)
    Benton, Joe (Bootle)Cunningham, rh Dr. Jack (Copeland)
    Berry, Roger
    Blackman, LizCunningham, Jim (Coventry S)
    Blears, Ms HazelCunningham, Tony (Workington)
    Blizzard, BobCurtis-Thomas, Mrs Claire
    Blunkett, rh DavidDalyell, Tam
    Boateng, rh PaulDavey, Valerie (Bristol W)
    Bradley, rh Keith (Withington)Davidson, Ian
    Bradshaw, BenDavies, rh Denzil (Llanelli)
    Brennan, KevinDawson, Hilton
    Brown, rh Nicholas (Newcastle E Wallsend)Dean, Mrs Janet
    Denham, rh John
    Brown, Russell (Dumfries)Dhanda, Parmjit
    Browne, DesmondDismore, Andrew
    Bryant, ChrisDobbin, Jim (Heywood)
    Buck, Ms KarenDonohoe, Brian H.
    Burden, RichardDoran, Frank
    Burgon, ColinDowd, Jim (Lewisham W)
    Burnham, AndyDrew, David (Stroud)
    Byers, rh StephenEagle, Angela (Wallasey)
    Caborn, rh RichardEagle, Maria (L'pool Garston)
    Cairns, DavidEdwards, Huw
    Campbell, Alan (Tynemouth)Efford, Clive
    Campbell, Mrs Anne (C'bridge)Ellman, Mrs Louise
    Campbell, Ronnie (Blyth V)Etherington, Bill
    Caplin, IvorFarrelly, Paul
    Casale, RogerField, rh Frank (Birkenhead)
    Cawsey, Ian (Brigg)Fisher, Mark
    Challen, ColinFitzpatrick, Jim
    Chapman, Ben (Wirral S)Flynn, Paul (Newport W)
    Chaytor, DavidFollett, Barbara
    Clapham, MichaelFoster, rh Derek
    Clark, Mrs Helen (Peterborough)Foster, Michael (Worcester)
    Clark, Dr. Lynda (Edinburgh Pentlands)Foster, Michael Jabez (Hastings & Rye)

    Foulkes, rh GeorgeLaxton, Bob (Derby N)
    Gapes, Mike (Ilford S)Lazarowicz, Mark
    Gardiner, BarryLevitt, Tom (High Peak)
    Gerrard, NeilLewis, Terry (Worsley)
    Gibson, Dr. IanLinton, Martin
    Gilroy, LindaLove, Andrew
    Godsiff, RogerLucas, Ian (Wrexham)
    Goggins, PaulMcAvoy, Thomas
    Griffiths, Jane (Reading E)McCabe, Stephen
    Griffiths, Nigel (Edinburgh S)McCafferty, Chris
    Griffiths, Win (Bridgend)McCartney, rh Ian
    Grogan, JohnMcDonagh, Siobhain
    Hain, rh PeterMcDonnell, John
    Hall, Mike (Weaver Vale)MacDougall, John
    Hall, Patrick (Bedford)McGuire, Mrs Anne
    Hamilton, David (Midlothian)McIsaac, Shona
    Hamilton, Fabian (Leeds NE)McKechin, Ann
    Hanson, DavidMackinlay, Andrew
    Harman, rh Ms HarrietMcNamara, Kevin
    Harris, Tom (Glasgow Cathcart)McNulty, Tony
    Havard, Dai (Merthyr Tydfil & Rhymney)McWilliam, John
    Mahon, Mrs Alice
    Healey, JohnMallaber, Judy
    Henderson, Ivan (Harwich)Mandelson, rh Peter
    Hendrick, MarkMann, John (Bassetlaw)
    Hepburn, StephenMarris, Rob (Wolverh'ton SW)
    Heppell, JohnMarsden, Gordon (Blackpool S)
    Hesford, StephenMarshall, Jim (Leicester S)
    Hewitt, rh Ms PatriciaMarshall-Andrews, Robert
    Heyes, DavidMartlew, Eric
    Hill, Keith (Streatham)Meacher, rh Michael
    Hinchliffe, DavidMerron, Gillian
    Hodge, MargaretMichael, rh Alun
    Hoey, Kate (Vauxhall)Miliband, David
    Hood, Jimmy (Clydesdale)Miller, Andrew
    Hope, Phil (Corby)Moffatt, Laura
    Hopkins, KelvinMole, Chris
    Howarth, rh Alan (Newport E)Moonie, Dr. Lewis
    Howarth, George (Knowsley N & Sefton E)Morley, Elliot
    Mullin, Chris
    Howells, Dr. KimMunn, Ms Meg
    Hughes, Beverley (Stretford & Urmston)Murphy, Denis (Wansbeck)
    Murphy, rh Paul (Torfaen)
    Hughes, Kevin (Doncaster N)Naysmith, Dr. Doug
    Humble, Mrs JoanNorris, Dan (Wansdyke)
    Hurst, Alan (Braintree)O'Brien, Bill (Normanton)
    Hutton, rh JohnOlner, Bill
    Iddon, Dr. BrianOrgan, Diana
    Ingram, rh AdamOsborne, Sandra (Ayr)
    Irranca-Davies, HuwPalmer, Dr. Nick
    Jackson, Glenda (Hampstead & Highgate)Pearson, Ian
    Perham, Linda
    Jackson, Helen (Hillsborough)Picking, Anne
    Jamieson, DavidPickthall, Colin
    Jenkins, BrianPike, Peter (Burnley)
    Johnson, Alan (Hull W)Plaskitt, James
    Jones, Helen (Warrington N)Pollard, Kerry
    Jones, Jon Owen (Cardiff C)Pond, Chris (Gravesham)
    Jones, Kevan (N Durham)Pope, Greg (Hyndburn)
    Jowell, rh TessaPound, Stephen
    Joyce, Eric (Falkirk W)Prentice, Ms Bridget (Lewisham E)
    Kaufman, rh Gerald
    Keeble, Ms SallyPrimarolo, rh Dawn
    Keen, Ann (Brentford)Purnell, James
    Kemp, FraserQuin, rh Joyce
    Kennedy, Jane (Wavertree)Quinn, Lawrie
    Khabra, Piara S.Rammell, Bill
    Kidney, DavidRapson, Syd (Portsmouth N)
    Kilfoyle, PeterRaynsford, rh Nick
    King, Andy (Rugby)Reed, Andy (Loughborough)
    King, Ms Oona (Bethnal Green & Bow)Robinson, Geoffrey (Coventry NW)
    Knight, Jim (S Dorset)Roche, Mrs Barbara
    Kumar, Dr. AshokRooney, Terry
    Ladyman, Dr. StephenRoss, Ernie (Dundee W)
    Lammy, DavidRoy, Frank (Motherwell)

    Ruane, ChrisTaylor, David (NW Leics)
    Ruddock, JoanThomas, Gareth (Clwyd W)
    Ryan, Joan (Enfield N)Thomas, Gareth (Harrow W)
    Salter, MartinTimms, Stephen
    Sarwar, MohammadTipping, Paddy
    Savidge, MalcolmTodd, Mark (S Derbyshire)
    Sawford, PhilTouhig, Don (Islwyn)
    Sedgemore, BrianTrickett, Jon
    Shaw, JonathanTruswell, Paul
    Sheerman, BarryTurner, Dennis (Wolverh'ton SE)
    Sheridan, JimTurner, Dr. Desmond (Brighton Kemptown)
    Shipley, Ms Debra
    Simon, Siôn (B'ham Erdington)Turner, Neil (Wigan)
    Simpson, Alan (Nottingham S)Twigg, Derek (Halton)
    Singh, MarshaTwigg, Stephen (Enfield)
    Smith, rh Andrew (Oxford E)Tynan, Bill (Hamilton S)
    Smith, Angela (Basildon)Vis, Dr. Rudi
    Smith, Geraldine (Morecambe & Lunesdale)Wallely, Ms Joan
    Wareing, Robert N.
    Smith, Jacqui (Redditch)Watson, Tom (W Bromwich E)
    Smith, John (Glamorgan)White, Brian
    Smith, Llew (Blaenau Gwent)Whitehead, Dr. Alan
    Soley, CliveWicks, Malcolm
    Southworth, HelenWilliams, rh Alan (Swansea W)
    Spellar, rh JohnWills, Michael
    Squire, RachelWilson, Brian
    Starkey, Dr. PhyllisWinnick, David
    Steinberg, GerryWinterton, Ms Rosie (Doncaster C)
    Stewart, David (Inverness E & Lochaber)Woodward, Shaun
    Stinchcombe, PaulWoolas, Phil
    Stoate, Dr. HowardWorthington, Tony
    Strang, rh Dr. GavinWright, Anthony D. (Gt Yarmouth)
    Stringer, GrahamWright, David (Telford)
    Stuart, Ms GiselaWright, Tony (Cannock)
    Sutcliffe, Gerry
    Tami, Mark (Alyn)

    Tellers for the Ayes:

    Taylor, rh Ann (Dewsbury)

    Charlotte Atkins and

    Taylor, Dari (Stockton S)

    Mr. Jim Murphy

    NOES

    Ainsworth, Peter (E Surrey)Cameron, David
    Allan, RichardCarmichael, Alistair
    Amess, DavidCash, William
    Ancram, rh MichaelChapman, Sir Sydney (Chipping Barnet)
    Arbuthnot, rh James
    Atkinson, Peter (Hexham)Chidgey, David
    Bacon, RichardChope, Christopher
    Baldry, TonyClappison, James
    Barker, GregoryClarke, rh Kenneth (Rushcliffe)
    Baron, John (Billericay)Clifton-Brown, Geoffrey
    Barrett, JohnConway, Derek
    Beith, rh A. J.Cormack, Sir Patrick
    Bellingham, HenryCotter, Brian
    Bercow, JohnDavey, Edward (Kingston)
    Beresford, Sir PaulDavies, Quentin (Grantham & Stamford)
    Blunt, Crispin
    Boswell, TimDavis, rh David (Haltemprice & Howden)
    Bottomley, Peter (Worthing W)
    Bottomley, rh Virginia (SW Surrey)Djanogly, Jonathan
    Doughty, Sue
    Brady, GrahamDuncan Smith, rh Iain
    Brake, Tom (Carshalton)Evans, Nigel
    Brazier, JulianFabricant, Michael
    Brooke, Mrs Annette L.Fallon, Michael
    Browning, Mrs AngelaField, Mark (Cities of London & Westminster)
    Bruce, Malcolm
    Burnett, JohnFlight, Howard
    Burns, SimonFlook, Adrian
    Burnside, DavidForth, rh Eric
    Burstow, PaulFrancois, Mark
    Burt, AlistairGale, Roger (N Thanet)
    Butterfill, JohnGibb, Nick (Bognor Regis)
    Cable, Dr. VincentGidley, Sandra
    Calton, Mrs PatsyGillan, Mrs Cheryl

    Goodman, PaulPaterson, Owen
    Gray, James (N Wilts)Pickles, Eric
    Green, Damian (Ashford)Prisk, Mark (Hertford)
    Green, Matthew (Ludlow)Pugh, Dr. John
    Greenway, JohnRandall, John
    Grieve, DominicRedwood, rh John
    Gummer, rh JohnReid, Alan (Argyll & Bute)
    Hammond, PhilipRendel, David
    Hancock, MikeRobathan, Andrew
    Harris, Dr. Evan (Oxford W & Abingdon)Robertson, Laurence (Tewk'b'ry)
    Roe, Mrs Marion
    Harvey, NickRosindell, Andrew
    Hawkins, NickRussell, Bob (Colchester)
    Hayes, John (S Holland)Sanders, Adrian
    Heald, OliverSayeed, Jonathan
    Heath, DavidSelous, Andrew
    Hendry, CharlesShephard, rh Mrs Gillian
    Hermon, LadyShepherd, Richard
    Hoban, Mark (Fareham)Simmonds, Mark
    Hogg, rh DouglasSimpson, Keith (M-Norfolk)
    Holmes, PaulSmith, Sir Robert (W Ab'd'ns & Kincardine)
    Horam, John (Orpington)
    Howarth, Gerald (Aldershot)Smyth, Rev. Martin (Belfast S)
    Hughes, Simon (Southwark N)Spicer, Sir Michael
    Hunter, AndrewSpink, Bob (Castle Point)
    Jack, rh MichaelSpring, Richard
    Jackson, Robert (Wantage)Stanley, rh Sir John
    Jenkin, BernardStreeter, Gary
    Keetch, PaulStunell, Andrew
    Key, Robert (Salisbury)Swire, Hugo (E Devon)
    Laing, Mrs EleanorSyms, Robert
    Lait, Mrs JacquiTapsell, Sir Peter
    Lamb, NormanTaylor, Ian (Esher)
    Lansley, AndrewTaylor, John (Solihull)
    Laws, David (Yeovil)Taylor, Matthew (Truro)
    Leigh, EdwardThomas, Simon (Ceredigion)
    Letwin, rh OliverTonge, Dr. Jenny
    Lewis, Dr. Julian (New Forest E)Tredinnick, David
    Liddell-Grainger, IanTurner, Andrew (Isle of Wight)
    Lidington, DavidTyler, Paul (N Cornwall)
    Lilley, rh PeterTyrie, Andrew
    Llwyd, ElfynViggers, Peter
    Loughton, TimWalter, Robert
    Luff, Peter (M-Worcs)Waterson, Nigel
    McIntosh, Miss AnneWatkinson, Angela
    Mackay, rh AndrewWebb, Steve (Northavon)
    Maclean, rh DavidWhittingdale, John
    McLoughlin, PatrickWiddecombe, rh Miss Ann
    Malins, HumfreyWiggin, Bill
    Maples, JohnWilkinson, John
    Mawhinney, rh Sir BrianWilletts, David
    May, Mrs TheresaWillis, Phil
    Mercer, PatrickWilshire, David
    Moss, MalcolmWinterton, Sir Nicholas (Macclesfield)
    Murrison, Dr. Andrew
    Oaten, Mark (Winchester)Yeo, Tim (S Suffolk)
    O'Brien, Stephen (Eddisbury)Young, rh Sir George
    Öpik, Lembit
    Ottaway, Richard

    Tellers for the Noes:

    Page, Richard

    Mr. Desmond Swayne and

    Paice, James

    Hugh Robertson

    Question accordingly agreed to.

    Clause read a Second time, and added to the Bill.

    New Clause 52

    Absconding By Persons Released On Bail

    "(1) For paragraph 6 of Part 1 of Schedule 1 to the 1976 Act (defendant need not be granted bail if having been released on bail he has been arrested in pursuance of section 7) there is substituted—

    "6 (1) If the defendant falls within this paragraph, he may not be granted bail unless the court is satisfied that there is no significant risk that, if released on bail (whether subject to conditions or not), he would fail to surrender to custody; but this does not require the court, if so satisfied, to grant bail (disregarding other considerations).

    (2) Subject to subparagraph (3) below, the defendant falls within this paragraph if—

  • (a) he is aged 18 or over, and
  • (b) it appears to the court that, having been released on bail in or in connection with the proceedings for the offence, he failed to surrender to custody.
  • (3) Where it appears to the court that the defendant had reasonable cause for his failure to surrender to custody, he does not fall within this paragraph unless it also appears to the court that he failed to surrender to custody at the appointed place as soon as reasonably practicable after the appointed time.

    (4) For the purposes of subparagraph (3) above, a failure to give to the defendant a copy of the record of the decision to grant him bail shall not constitute a reasonable cause for his failure to surrender to custody."

    (2) In section 6 of the 1976 Act (offence of absconding by person released on bail) after subsection (9) there is inserted—

    "(10) Section 127 of the Magistrates' Courts Act 1980 shall not apply in relation to an offence under subsection(1)or(2) above.

    (11) Where a person has been released on bail in criminal proceedings and that bail was granted by a constable, a magistrates' court shall not try that person for an offence under subsection (1) or (2) above in relation to that bail (the "relevant offence") unless subsection (12) or (13) below applies.

    (12) This subsection applies if an information is laid for the relevant offence within 6 months from the time of the commission of the relevant offence.

    (13) This subsection applies if—

  • (a) subsection (12) above does not apply,
  • (b) none of the events mentioned in subsection (14) below occurs during the period mentioned in subsection (12) above, and
  • (c) no later than 3 months from the time of the occurrence of the first of those events to occur after the end of that period, an information is laid for the relevant offence.
  • (14) Those events are—

  • (a) the person surrenders to custody at the appointed place;
  • (b) the person is arrested, or attends at a police station, in connection with the relevant offence or the offence for which he was granted bail;
  • (c) the person appears or is brought before a court in connection with the relevant offence or the offence for which he was granted bail.""
  • [The Solicitor-General.]

    Brought up, and read the First time.

    5.15 pm

    I beg to move, That the clause be read a Second time.

    With this it will be convenient to discuss the following:

    The following amendments to the proposed new clause:

    Amendment (a), in proposed new paragraph 6(1), leave out from 'custody' to the end of the paragraph.

    Amendment (b), leave out proposed new paragraph 6(4).

    Government new clause 53—Supplementary amendments to the Bail Act 1976.

    Government amendments Nos. 443 to 448, 232 and 449.

    Amendment No. 171, in page 12, clause 16, line 20, leave out 'not' and insert 'only'.

    Amendment No. 172, in page 12, clause 16, line 20, leave out 'unless' and insert 'if'.

    Government amendments Nos. 450 to 454.

    It is not as bad as it sounds, Madam Deputy Speaker. I shall speak to new clauses 52 and 53, together with a number of consequential and technical Government amendments, and comment on the relevant Opposition amendments.

    New clauses 52 and 53 tighten up bail for people who have been granted bail but breach it. They are being introduced at this stage because this issue has been raised under the street crime initiative and brought to the fore by those considering how to tackle street crime. I know that hon. Members are familiar with the issue and that it will have been raised with them.

    The problem is that people feel strongly when someone is granted bail by the court but then breaches it. Nearly one defendant in four offends while on bail, and one in eight fails to turn up in court. That wastes time and resources, but more importantly it leads to delays that frustrate and often upset victims and witnesses. Victims, in particular, find it hard to understand how, despite all the efforts invested by the police and the Crown Prosecution Service in apprehending and charging the alleged perpetrator of a crime, he can fail to appear and yet be given bail again. Basically, they turn up but he does not, which undermines public confidence in the criminal justice system.

    At the moment, a defendant arrested for breach of bail loses the usual presumption in favour of bail, but the Government believe that it is necessary to send a more powerful deterrent message to defendants who, for no good reason, do not turn up in court. New clause 52(1) therefore goes one step further than the current position by creating a presumption against bail in those circumstances. It requires the court to refuse bail to an adult defendant—this applies only to adults—who fails without reasonable cause to surrender to custody in answer to bail in the same proceedings, unless the court is satisfied that there is no significant risk that he would again fail to surrender if released on bail.

    Conscious as we are of our obligations under the European convention on human rights, the Government are satisfied that the proposal is compatible with those obligations.

    My right hon. and learned Friend says that the measure relates to adult offenders; will she take evidence from me, as it were, on this issue? I met senior police officers on Friday and asked them what their most frustrating experiences with the criminal justice system were. In particular, they named young offenders who refuse to attend, or for some other reason do not attend, a court hearing when everyone else is present and ready to go, and the fact that such offenders can laugh at the court and just be given another date.

    My hon. Friend is well aware of the challenge of young offenders as he raised it on many occasions in Committee, in which he played an active part. Like other hon. Members who served in Committee, he will know that many parts of the Bill seek to deal with the difficulty of tackling offending behaviour early on in a young person's life. However, we though it right to apply this new clause, which reverses the presumption of bail and requires the court to make a presumption that bail will not be granted, to adults and leave the situation as it is in respect of breach of bail for under-18s.

    Will the Solicitor-General explain why it is necessary to make that distinction? I find it very difficult to understand why a 17-year-old should not be expected to behave in exactly the same way as an 18-year-old in this regard. It is all very well saying that the Government think it right, but I cannot understand on what possible grounds they can do so; perhaps she might explain to the House why she thinks it right. I think it wrong, and that the measure should apply to all persons who are given bail.

    The point that the right hon. Gentleman raises—it is the same as that made by my hon. Friend the Member for Nottingham, North (Mr.Allen)—is an important one. All I can say is that no amendment before the House now would have that effect, but the Bill will go to the other place and it might be possible to consider the point there. For the moment I want to make it clear that the proposals currently before us deal with adults. If an amendment to make the bail regime much tougher on juveniles were necessary, my ministerial colleagues in the Home Office would want to reflect on it: it might then be available for discussion in the other place.

    Would my right hon. and learned Friend allow me to write to her so that she can advise me on the best way to proceed—perhaps, for example, by a pilot scheme for young offenders on bail? It might be helpful to develop the policy in that way.

    I am sure that my colleagues in the Home Office would welcome a letter from my hon. Friend, putting forward that point for their consideration.

    The Solicitor-General will know that I am a parliamentary virgin on this matter, because, as I explained earlier, I did not have the good fortune to sit on the Standing Committee that considered the Bill. I am flummoxed, but I am sure that the Solicitor-General is about to release me from my state of ignorance. Did the Government not consider the position of 17-year-olds, to which my right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer) referred, or did they consider the matter and not think it worthy of inclusion? I am perspiring to know which is the case?

    The Government considered it, of course, but decided to introduce the new clause in its current form, which does not apply to juveniles. Provisions on juveniles have not been brought before the House, but that does not mean that further consideration cannot be urged in future. I say no more than that.

    Refusal of bail will not be automatic, because the court will still have to consider the risk that the defendant will again fail to appear. A previous failure to surrender to custody is not, of itself, reason for refusing bail, but it is highly relevant to assessing that risk.

    It may be convenient to deal with amendments (a) and (b), tabled by the hon. Member for Southwark, North and Bermondsey (Simon Hughes), who has yet to speak.

    I am most grateful to the Solicitor-General for taking another intervention. I listened carefully to her introductory words, in which she said that, when people do not appear after being released on bail, it undermines public confidence and that a more powerful deterrent message should be sent out. I could not agree more. In those circumstances, given that we have again—quite rightly, in my view—suspended elections to the Northern Ireland Assembly, making it impossible to devolve criminal justice and policing to the Assembly in the foreseeable future, will the Solicitor-General give an assurance that the bail provisions will be extended to Northern Ireland?

    I shall have to come back to the hon. Lady on that. She has made her point and I shall try to be forthcoming with an answer in due course.

    Before the Solicitor-General moves on to the most important amendments, she described other amendments, such as amendment No. 232, as "tidying-up" measures? Amendment No. 232, which deals with drug offenders on bail, would add "(or both)" to "assistance or treatment". Is not such tidying up sheer nonsense, because the term "(or both)" is already contained in the meaning? What is required is the replacement of the word "or" with "and", because any drug offender requires medical treatment. Leaving the probation service or other qualified persons with an option not to incorporate medical treatment will only make re-offending more likely.

    I shall deal with my hon. Friend's points when I come to the amendment in a moment. For the sake of those who are not as deeply cognisant of the issues as my hon. Friend, I shall continue with questions surrounding the presumption of bail, and return to his points later.

    Will the Solicitor-General assist the House by giving the Government's estimate of the increase in the remand prison population that will result from the amendments restricting access to bail? That information would be useful, if the Government have made such an estimate—and I hope they have.

    The intention is that fewer people will be on remand, because the message will be clearly sent out that people cannot take a risk by not turning up to court, because it will be one strike if they are out, so to speak. There will be no misunderstanding in the minds of defendants, because it will be clear that if they have been granted bail by the court to return on a certain day, they have to return on that day. Otherwise, when they are later arrested and brought before the court, they will be remanded in custody. The aim is that people will be clear about the need to turn up to court. The aim is to bring offenders to justice so that the courts can deal with cases, instead of having more people on remand in custody.

    We do not want a situation in which the police witnesses, the lay witnesses, the victim and the prosecution are all present, and the only person missing is the defendant, so the case has to be adjourned. That undermines public confidence in the system, which is why we have brought the provision before the House. Those who advise clients can be clear that the presumption will be that the defendant will not get bail, unless they can show some good, overriding reason why they were not able to attend, such as being locked up somewhere else. With a really good reason, the person may escape being remanded in custody; otherwise, failure to appear will be an offence that is dealt with by imprisonment.

    Amendments (a) and (b) were tabled by the hon. Member for Southwark, North and Bermondsey and others. It might help if I explain the Government's view, although I anticipate that the hon. Member for Somerton and Frome (Mr. Heath) will speak to the amendments. I hope that I do not pre-empt him too much by saying that the amendments are modest, but—without wishing to exaggerate matters—they would certainly do some damage to the Bill.

    Amendment (a) would remove words that are designed to make it clear that when a court is satisfied that there is no significant risk of a defendant failing to appear, it is not under an obligation to grant bail irrespective of other considerations. That must make sense. If there are reasons for refusing bail other than the question of absconding—for example, a risk of interference with witnesses—the provision as it stands makes it clear to the court that it retains the power to refuse bail, notwithstanding that the defendant is not considered likely to abscond again. We did not want to create a situation in which, on clear evidence, it was apparent that a defendant was not likely to abscond again, and the court therefore felt that it should grant bail, irrespective of other issues that should have led it to refuse bail.

    I am grateful to the Solicitor-General for giving way, because this may be the only opportunity that I have to speak on the amendments. We have some sympathy with what the Government are trying to do, but we wanted to retain at least some vestige of the presumption in favour of bail and give the courts the discretion to make the decision. The problem with the Government's interpretation is that it reduces the discretion to a nugatory amount.

    Clearly, if the hon. Gentleman's desire is to retain the presumption in favour of bail, I shall disappoint him because the whole point of new clause 52 is that, if someone is arrested, charged, brought before the court and bailed to appear on another day but simply fails to turn up, they will not have the presumption in their favour that bail will be granted. At that point, the presumption will be that bail will not be granted.

    5.30 pm

    The hon. Gentleman also mentions the court's discretion. Of course the court will still have discretion. If the defendant can show reasonable cause for his not turning up, he can rebut that presumption. So the presumption is rebuttable, but it must be included in the Bill. That is what new clause 52 will do, and I am sure that the hon. Gentleman must think that that is right. People find it very undermining when the same issue is simply played over and again, but the presumption is still in favour of granting bail.

    Amendment (b) would remove the provision that states:
    "a failure to give to the defendant a copy of the record of the decision to grant him bail shall not constitute a reasonable cause for his failure to surrender to custody."
    Those words merely replicate those already used in section 6(4) of the Bail Act 1976 and are intended to avoid technical arguments that a defendant could not have been expected to know his bail date because the court had failed to give him the required copy.

    New clause 52(2) deals with a technical obstacle to proceeding against defendants who fail to answer to bail granted by the police. In those cases, unlike those involving police bail, section 127 of the Magistrates' Courts Act 1980 applies. That prevents summary proceedings from being instituted more than six months after the commission of an offence, so if a Bail Act offence is committed and the offender manages to stay out of sight of the police for more than six months, it is not possible to prosecute that Bail Act offence. Surely that cannot be right. Therefore, subsection (2) will disapply section 127 in respect of offences under section 6 of the Bail Act 1976 and apply a new limitation period of three months from the defendant's surrender to custody, arrest or court appearance. So the time limit is three months from when the person is apprehended.

    Amendment No. 445 would insert into clause 12 a new provision—

    On a point of order, Madam Deputy Speaker. I believe that time has now run out for this group of about 40 amendments, most of which are Government amendments, but the Solicitor-General has not even been able fully to explain important Government amendments to the House, leaving aside the amendments tabled by the official Opposition or the Liberal Demorats. Can any protection be provided to the House to enable us to give some rudimentary consideration to important measures, rather than being left with this complete pantomime, which brings the House into disrepute?

    Order. I shall respond to the point of order, but I am required under the programme motion to put the Question at this time. My reply to the hon. Gentleman is that, of course, I am governed by the programme motion, which was duly agreed to by the House, and I must therefore follow the directions in that motion.

    Order. I must put the Question now, but I will come back to the hon. Gentleman afterwards.

    It being two hours after the commencement of proceedings on the programme motion, MADAM DEPUTY SPEAKER, pursuant to Orders [4 February, 5 March, 2 April and this day], put forthwith the Question already proposed from the Chair.

    Question accordingly agreed to.

    Clause read a Second time and added to the Bill.

    MADAM DEPUTY SPEAKER then proceeded to put forthwith the Questions necessary for the disposal of the business to be concluded at that hour.

    Clause 11

    Grant And Conditions Of Bail

    Amendments made: No. 443, in page 8, line 11, leave out subsection (3).

    No. 444, in page 8, line 19, leave out '2' and insert "2(1)".— [Mr. Heppell.]

    Clause 12

    Offences Committed On Bail

    Amendments made: No. 445, in page 8, line 36, leave out subsection (1) and insert—

    '(1) For paragraph 2A of Part 1 of Schedule 1 to the 1976 Act (defendant need not be granted bail where he was on bail at date of offence) there is substituted—

    "2A (1) If the defendant falls within this paragraph he may not be granted bail unless the court is satisfied that there is no significant risk of his committing an offence while on bail (whether subject to conditions or not); but this does not require the court, if so satisfied, to grant bail (disregarding other considerations).

    (2) The defendant falls within this paragraph if—

  • (a) he is aged 18 or over, and
  • (b) it appears to the court that he was on bail in criminal proceedings on the date of the offence."'
  • No. 446, in page 8, line 41, after 'defendant' insert—

  • (a) is under the age of 18, and
  • (b) it appears to the court that he'.
  • No. 447, in page 8, line 43, leave out '2' and insert "2(1)'.— [Mr. Heppell.]

    Clause 16

    Drug Users: Restriction On Bail

    Amendments made: No. 448, in page 11, line 22, at end insert 'Part 1 of'.

    No. 232, in page 11, line 41, after 'treatment' insert "(or both)'.

    No. 449, in page 12, line 10, leave out paragraph (a).

    No. 450, in page 12, line 22, after 'bail' insert—

    "(whether subject to conditions or not)'.

    No. 451, in page 13, leave out lines 25 to 27.— [Mr. Heppell.]

    Clause 28

    Defence Disclosure

    Amendments made: No. 72, in page 18, line 26, after 'evidence', insert—

    'or an abuse of process'.

    No. 73, in page 19, leave out lines 1 to 3.

    No. 74, in page 19, line 9, after 'prosecutor', insert "either—

    (a)'.

    No. 75, in page 19, line 10, at end insert

    ", or
    (b) a statement of the kind mentioned in subsection (3A)'.

    No. 76, in page 19, line 14, at end insert—

    '(3A) Instead of an updated defence statement, the accused may give a written statement stating that he has no changes to make to the defence statement which was given under section 5 or 6.'

    No. 77, in page 19, line 16, after 'give', insert "either'.

    No. 78, in page 19, line 16, after 'statement', insert—

    'or a statement of the kind mentioned in subsection (3A)'.— [Mr. Heppell.]

    Clause 29

    Notification Of Intention To Call Defence Witnesses

    Amendments made: No. 79, in page 19, line 26, leave out

    "give or call any evidence at'

    and insert—

    "call any persons (other than himself) as witnesses at his'.

    No. 80, in page 19, line 28, after 'each', insert "such'.

    No. 81, in page 19, line 29 leave out

    "(other than the accused himself)'.

    No. 82, in page 19, line 32, at end insert "such'.

    No. 83, in page 19, line 41, after 'person', insert "(other than himself)'.— [Mr. Heppell.]

    Clause 31

    Further Provisions About Defence Disclosure

    Amendments made: No. 84, in page 20, line 23, leave out subsection (1) and insert—

    '(1) Where an accused's solicitor purports to give on behalf of the accused—

  • (a) a defence statement under section 5, 6 or 6B, or
  • (b) a statement of the kind mentioned in section 6B(3A),
  • that statement shall, unless the contrary is proved, be deemed to be given with the authority of the accused.'.

    No. 85, in page 21, line 7, at end insert—

    "(c) where he has given both an initial defence statement and a statement of the kind mentioned in section 6B(3A), to the initial defence statement.'.

    [Mr. Heppell.]

    Clause 34

    Faults In Defence Disclosure

    Amendments made: No. 93, in page 23, line 47, at end insert—

    '(iii) where he has given both an initial defence statement and a statement of the kind mentioned in section 6B(3A), to the initial defence statement;'.—

    No. 86, in page 22, line 30, after 'give', insert "either'.

    No. 87, in page 22, line 30, at end insert—

    'or a statement of the kind mentioned in subsection (3A) of that section'.

    No. 88, in page 22, line 32, after "statement', insert—

    'or a statement of the kind mentioned in section 6B(3A)'.

    No. 89, in page 23, line 3, leave out "giving'.

    No. 90, in page 23, line 15 after "witness', insert "(other than himself)'.

    No. 91, in page 23, line 21, at end insert—

    '(5A) Where—
  • (a) this section applies by virtue of subsection (2)(f)(ii) (including that provision as it applies by virtue of subsection (3)(b)), and
  • (b) the matter which was not mentioned is a point of law (including any point as to the admissibility of evidence or an abuse of process) or an authority,
  • comment by another party under subsection (5)(a) may be made only with the leave of the court.'.

    No. 92, in page 23, line 36, at end insert—

    '(9A) Where the accused has given a statement of the kind mentioned in section 6B(3A), then, for the purposes of subsections (2)(f)(ii) and (iv), the question as to whether there has been a breach of the requirements imposed by or under section 6A or a failure to comply with section 6A(2)(a) or (b) shall be determined—
  • (a) by reference to the state of affairs at the time when that statement was given, and
  • (b) as if the defence statement was given at the same time as that statement.'.
  • No. 93, page 23, line 47, at end insert—

    "(iii) where he has given both an initial defence statement and a statement of the kind mentioned in section 6B(3A), to the initial defence statement.'.
    [Mr. Heppell.]

    Schedule 27

    Further Minor And Consequential Amendments

    Amendment made: No. 103, in page 302, line 22, at end insert—

    '33A (1) Section 77 (orders and regulations) is amended as follows.
    (2) In subsection (5)—
  • (a) after "No", there is inserted "regulations or" and
  • (b) after "section" there is inserted "6A or".
  • (3) In subsection (6)(b) after "regulations" there is inserted "(other than regulations under section 6A)".'

    On a point of order, Madam Deputy Speaker. You kindly said that you would revert to me when you had gone through the proper course of action.

    In view of the fact that there were no fewer than 46 Government new clauses and amendments in the category that has just been discussed, which fell into two subdivisions, and that the Solicitor-General, despite her considerable eloquence and succinctness, had the opportunity to speak on only four of them, are you, Madam Deputy Speaker, able to advise me and other Members whether, in the history of our programming arrangements, there is any precedent for the violence to parliamentary opportunity that has been done today?

    Further to that point of order, Madam Deputy Speaker, would you also bear in mind your important role of defending the rights of Back Benchers? This Back Bencher was hoping to speak on one particular amendment as it was the only one on which I do not find myself opposing the Government from the left, which is very embarrassing for me. I thus wanted at least to be able say that I thought bail ought to be extended to those aged under-18.

    Further to that point of order, Madam Deputy Speaker, I understand entirely the fact that, for one brief second, you thought that we had not yet addressed part 5, because in fact we have not addressed it. Part 5 deals with the important matter of disclosures in trials. Not only do we seek to defend the rights of Members of the House, but, more important, we seek to defend the rights of those who are arraigned in our courts. Is there no way in which a Committee of the House could have the opportunity even to see an explanation from the Government of the amendments before they go to another place, which is not elected?

    I regret to say that I can save hon. Members from neither embarrassment nor from disappointment at being unable to contribute to the debate. I am governed by the programme motion, which, as I said earlier, was agreed by the House. I must, therefore, follow the instructions of the House.

    New Clause 29

    Rules Of Court

    "(1) Rules of court may make such provision as appears to the authority making them to be necessary or expedient for the purposes of this Part.

    (2) Without limiting subsection (1), rules of court may in particular make provision for time limits within which applications under this Part must be made or within which other things in connection with this Part must be done.

    (3) Nothing in this section is to be taken as affecting the generality of any enactment conferring powers to make rules of court.'.— [Mr. Blunkett.]

    Brought up, and read the First time.

    I beg to move, That the clause be read a Second time.

    With this it will be convenient to take the following: New clause 1—Applications by prosecution for complex and lengthy trial to be conducted before a jury of experts

    This section applies where one or more defendants are to be tried on indictment for one or more offences.
    (2)The prosecution or the defendant may apply to a judge of the Crown Court for the trial to be conducted before a jury of experts.
    (3) If an application under subsection (2) is made and the judge is satisfied that both of the following two conditions are fulfilled he must make an order that the trial be conducted before a jury of experts, but if he is not so satisfied he must refuse the application.
    (4) The first condition is that the complexity of the trial and its length—
  • (a) is likely to make the trial so burdensome to the members of a jury hearing the trial that it is necessary in the interests of justice for the trial to be conducted before a jury of experts.
  • (b) would be likely to place an excessive burden upon the life of a typical juror.
  • (5)The second condition is that the complexity and length will be attributable—
  • (a) to the fact that the issues likely to be material to the verdict of a jury hearing the trial relate to arrangements, transactions or records of a financial or commercial nature or which relate to property, and
  • (b) to the likely volume of evidence relating to those issues.
  • (6) In deciding whether or not he is satisfied that both of those two conditions are fulfilled, the judge must have regard to any steps which might reasonably be taken to reduce the complexity or length of the trial (or both).
    (7) But a step is not to be regarded as reasonable if it would significantly disadvantage the prosecution or the defendant.'

    New clause 2— Expert jursies

    '(1) A jury of experts shall be constituted by 12 members drawn from the following professional bodies—
  • (a) The Royal Institute of Chartered Accountants;
  • (b) The Society of Actuaries.
  • (2) The Lord Chancellor may by order amend the list of professional bodies from which expert jurors are drawn.
    (3) The Lord Chancellor shall maintain a list of eligible persons willing to serve as expert jurors.
    (4) The Lord Chancellor may pay to any expert juror such remuneration as he may determine.'.

    New clause 23— Application by defendant for trial to be conducted without jury

    "(1) This section applies where one or more defendants are to be tried on indictment for one or more offences.
    (2) The defendant, or any of the defendants, may apply to a judge of the Crown Court for the trial to be conducted without a jury.
    (3) The judge may make an order that the trial is to be conducted without a jury if satisfied that subsection (4) applies.
    (4) This subsection applies if the judge is satisfied there is a substantial risk that the defendant will not receive a fair trial if tried by a jury.
    (5) When deciding whether the subsection (4) applies the judge shall give consideration to the following—
  • (a) the nature of the case;
  • (b) any submissions made by the prosecution or the defence;
  • (c) any other relevant factors.
  • (6) Before making any submissions under subsection (5)(b) the prosecution shall take into consideration the wishes and interests of any witnesses.
    (7) If two or more defendants are to be tried and any of them opposes an application under subsection (2) then subsection (4) will not apply.'.—

    Amendment No. 1, in page 24, line 12, leave out Clause 36.

    Amendment No. 2, in page 25, line 10, leave out Clause 37.

    Amendment No. 3, in page 25, line 38, leave out Clause 38.

    Amendment No. 128, in clause 38, page 26, line 1, leave out 'satisfied' and insert 'convinced'.

    Amendment No. 5, in clause 39, page 26, line 20, leave out from 'applies' to end of line 24 and insert—

    'to any application under section (Applications by prosecution for complex and lengthy trial to be conducted before a jury of experts) above.'.

    Government amendments Nos. 203 and 204.

    Amendment No. 6, in clause 39, line 42, leave out

    "section 36, 37 or 38'

    and insert—

    "section (Applications by prosecution for complex and lengthy trial to be conducted before a jury of experts)'.

    Government amendments Nos. 205 to 207.

    Amendment No. 7, in page 27, line 17, leave out

    "section 36, 37 or 38'

    and insert—

    "section (Applications by prosecution for complex and lengthy trial to be conducted before a jury of experts)'.

    Amendment No. 8, in line 28, leave out '(or partly because)'.

    Amendment No. 9, in line 28, leave out 'appears to have' and insert 'has'.

    Government amendments Nos. 208 and 209.

    Amendment No. 10, in clause 40, page 27, line 35, leave out from 'must' to end of line 36 and insert "terminate the trial'.

    Amendment No. 11, in line 37, leave out subsection (4).

    Amendment No. 12, in line 39, leave out '(4)' and insert '(3)'.

    Amendment No. 13, in line 41, leave out from 'that' to end of line 44 and insert—

    'if the retrial were to take place with a jury there is a real and present danger that jury tampering would again occur and that either,
  • (a)(i) the danger of jury tampering is such that it would be necessary to provide police protection for the members of the jury hearing the trial and
  • (ii) the level and duration of that protection would be likely to place an excessive burden upon the life of a typical juror, or
  • (b) notwithstanding any steps (including the provision of police protection) which might reasonably be taken to prevent jury tampering the likelihood that it would take place was so high to make it necessary in the interests of justice for the trial to be conducted without a jury.'.

    Amendment No. 14, in page 28, line 3, leave out subsection (7) and insert—

    '(7) Any new trial by judge alone must take place in front of a different judge.'.

    Amendment No. 15, in clause 42, line 31, leave out subsection (1).

    Amendment No. 16, in line 33, leave out 'trial' and insert 'retrial'.

    Amendment No. 17, in line 34, leave out 'be continued' and insert 'take place'.

    Government amendments Nos. 210, 211, 214 to 222 and 213.

    First, may I take this opportunity to welcome officially my hon. Friend the Member for Wythenshawe and Sale, East (Paul Goggins)? I am convinced that this will encourage other Parliamentary Private Secretaries to believe that there is life after bag carrying. I sincerely hope so, as we approach the possibility of a forthcoming reshuffle.

    On Third Reading, I shall say a word about my hon. Friend the Member for Leeds, Central (Hilary Benn), who is now the Minister of State, Department for International Development. He did a splendid job in the Standing Committee and I shall come back to that point tomorrow evening.

    May I also wish the right hon. Member for West Dorset (Mr. Letwin), the shadow Home Secretary, a happy birthday? It is a miserable way to spend it. It looks as though I shall be spending my birthday in Cabinet discussing the euro, and I shall not take bets on which is worse—discussing trial by judge only or being judged on our decision on the euro.

    New clause 29 provides a standard power to make rules of court in respect of procedural matters relating to applications and appeals under part 7. One such matter is time limits for applications. That concern was raised in Committee and we wanted to address the issue to ensure that, under clause 36, individuals had no opportunity to undertake what has been described as "judge shopping", which is an entirely new phrase to me. That raised the fear, however, that without proper time limits and additional requirements and restrictions, which exist already in clause 36, opportunities may exist for people to pick and choose judges in the way that, as we shall discuss in a moment, some people, by intimidation, pick and choose the jury that they want. We hope that this measure will allay people's fears.

    In relation to clause 36, to which my hon. and learned Friend the Member for Redcar (Vera Baird) has tabled an amendment, fears were expressed in Committee that there may not be proper equality or opportunity for those with particular ethnic or gender needs to be dealt with fairly by jury, which is why some people would choose judge-only trials. We reject that proposition. We do not believe that new clause 23 is either necessary or desirable. I can confirm from discussions that Lord Falconer and I had with the Judicial Studies Board last week that substantial changes have been put in place for the training and choosing of judges in specific cases in which there may be concern. That is true of those who need proper training and sensitivity in relation to rape cases, and of those undertaking cases in which there may be racial undertones. That should be sufficiently trustworthy, in terms of the steps that have been taken, for us to acknowledge that judges would not place themselves in a position in which defendants would be at risk in that way.

    Another issue that arises in relation to this Bill, but which may not be selected for debate, is corporate manslaughter. Of course, emotions can run high in relation to that issue, especially if there has been a major disaster. Assuming that the press coverage today is accurate that the Government are to honour their commitment to bring forward legislation on corporate manslaughter, how does my right hon. Friend envisage such trials taking place? Would they take place with judge and jury or on an indictment in this way?

    My hon. Friend tries in an ingenious way to get me on to a subject on which I will say only one thing: we have made a decision that we should publish a draft Bill. We believe that it is right to have extensive discussions on the issues in relation to corporate manslaughter, and that it would be right and proper to listen to the strongly held views of those on all sides, including those most affected, and we will do that as soon as possible. I will not give either a timetable for the publication or an assurance about what mode of trial such cases would be dealt with under. I shall refine my English by the time that I have finished this afternoon.

    Clearly, this group deals with clauses Nos. 37, 38 and 40, and with new clauses 1 and 2 tabled by the Opposition. I shall take the opportunity briefly to address those matters so that I do not take up the time of the House later. I shall be brief, as I know that, even with the time that we have available, many Members will want to address what I consider to be an extremely important issue.

    In the last Parliament, we had two of what were described as mode of trial Bills. Some have suggested publicly—I hoped that we had overcome this—that with the proposition under consideration this afternoon, relating to less than 100 trials a year, we were returning to the mode of trial Bill and threatening trial by jury. I thought that we had got over that, until the shadow Home Secretary was quoted in two newspapers on Saturday—misquoted, I hope—as saying that
    "the home secretary believes that being tough on crime inevitably involves undermining institutions that have protected our fundamental liberties."
    I do not believe that at all. I have said in the House on a number of occasions, as well as publicly, that this is not a zero sum total: by protecting the interests of victims, witnesses, the justice system and truth, we do not in any way do damage to the rights of the defendant to a fair trial or to the vast majority of cases, which are not dealt with in a magistrates court, which will be heard by jury. We do not seek to undermine anyone's rights. Instead, we seek to extend them.

    The right hon. Gentleman went on to say:
    "We believe that trial by jury is an institution well worth preserving and the bulwark of liberty in this country."
    Taken alongside Parliament, I believe that as well. I have no intention of returning to the propositions that were debated in the House and defeated by Parliament as a whole on two occasions previously.

    We are not debating the withdrawal of the right to trial by jury. We have no intention of doing so. It is wrong for Members in this place or in the House of Lords, or for barristers who should know better, to imply that that is what we are doing.

    I accept what the Secretary of State says but the propositions clearly propose the restriction in certain cases of trial by jury. Will the right hon. Gentleman tell the House whether he believes that jury trial is not working or whether it still has his whole confidence? If we end up with certain cases in the higher courts being tried by judge alone and certain cases being tried by jury, do not we inevitably have a two-tier justice system, the people deciding in one instance and the professional judges deciding in the other?

    No, I do not. Given the limited number of instances that we are addressing where we should have trial by judge only, to suggest that my confidence in the jury system as a whole is undermined is entirely fallacious. We have a variety of hearings throughout our system from district judges through to the Court of Appeal and judges sitting in trio. We do not suggest that their right to hear appeals on jury trials undermines the previous trials that were undertaken by jury. It would be fallacious to suggest that it does.

    5.45pm

    I will.

    We need to address the issues as they really are. I am always pleased to give way to my hon. and learned Friend, and I look forward to his pearls of wisdom.

    I am grateful to my right hon. Friend for the gracious way in which he has given way.

    However small the number of cases, if we are giving to judges the right to decide whether someone should have a jury trial or not, how can we say that we are not removing the right to jury trial?

    In the thousands of cases that are currently held in front of a jury, and will continue so to be heard, there will be no change. The limited number of cases to which I have referred—somewhat fewer than 100 a year—are affected because they involve serious fraud or complex financial issues, or where there has been jury interference. We are suggesting that in those cases there can be a decision by the judge, having examined the cases, that it would be in the best interests of justice and of gaining the truth, and therefore getting to the root of the problem, that such a course should be taken.

    I make the case strongly that protecting the integrity of jury trials by not allowing others to destroy that integrity—by not allowing others to undermine confidence in jury trials and by not allowing others to use manipulation and interference to damage jury trials—we are strengthening the credibility and wellbeing, and the confidence in, jury trials and the criminal justice system.

    By the Secretary of State's comments earlier, in saying that he is now not seeking to introduce the provisions set out in a previous mode of trial Bills, is he accepting that the Government's arguments in support of introducing those Bills were erroneous and that the Opposition parties were right in their objections to them?

    I do not accept that the arguments put by my right hon. and hon. Friends were erroneous. I believe that they put their case with conviction, and that there was a substantial argument to be put. Parliament overturned those mode of trial Bills. We were prepared to listen. That is a strength, not a weakness. I took a further look at the issue, along with the Lord Chancellor and the Attorney-General, and we concluded that it would be better to proceed as I am describing. I make no apology whatever for that.

    On the evidence that we have, trials that have lasted months on very difficult cases involving complex financial issues have often led to considerable difficulty in dealing with the logistics and recruiting the jury. Over and over again, the same examples are thrown up, because they are excellent examples. In the Maxwell case, 700 jurors were called and 550 excused, with a range of arguments and reasons given for people withdrawing or being withdrawn, reflecting the inability of people to hold down their jobs or conduct their lives in such circumstances.

    Here we are, asking people to do that or, in the case of the Opposition's new clauses, to believe that there is another way of arranging matters—not through normal juries, not by drawing on 12 stout men and women and true, but by developing an expert jury service. It is an extraordinary way round the problem, to say that there is a major problem—I admit there is; that we need to deal with it—and we do; that we cannot continue with the present system because it does not work—and it does not; and that we will invent a new system, which is not jury service but effectively an expert panel. It is not quite the same as the proposal for expert assessors, which was debated some years ago when these matters were dealt with by the Roskill Committee and later by Lord Justice Auld.

    The proposal is for a coterie, not quite of our fellow men and women, but of some of them who would be able to develop their expertise in a way that would allow them to deal with cases that the official Opposition accept could not be dealt with adequately in the normal way, for the very reasons that we have enunciated and which led us to introduce these changes to the law, so that we can ensure that trials are fairly heard and fairly dealt with, in a way that does not make a mockery of the system, the collapse of trials or the inability to gain convictions where convictions would otherwise be justified.

    I gather that last year there were 31 cases that lasted more than six months. Did the Home Secretary consider alternatives to removing jury trial—for example, smaller juries consisting of eight members, or jurors who had indicated that, because they were unemployed, retired or able to free, they would be available willingly to serve on longer cases? There is an argument for a more flexible system, but no case has been made for getting rid of the principle of a representative group of people judging cases.

    The whole argument for jury trial is its representative nature. It falls where it falls, so there is no way, we hope, that it can be manipulated. In some cases, as I shall explain in a moment, we are concerned about interference. We believe that there is a danger that people have learned how to do the job of interfering with the process of a fair trial. Anybody who has read John Grisham's excellent book—what was it called?

    Thank you. That was an excellent book—[Interruption.] I am glad to hear that John Grisham's latest book is excellent. I may one day have a chance to read a book again, rather than Bills and policy documents.

    The John Grisham book demonstrates clearly how we must avoid falling into the traps entailed in long jury trials. I shall answer the hon. Member for Southwark, North and Bermondsey (Simon Hughes) straight. Yes, of course we had to consider other options. Roskill and the debates around that led us to consider whether it would be sensible for assessors to sit with a judge. Once one gets beyond the discussion about having a normal jury trial, one has abandoned the jury and invented a new proposition, which is what the official Opposition are advancing.

    Rather than calling upon fiction to find evidence for his case, will the Home Secretary look to facts and accept that although serious fraud cases may impose difficulties on jurors, they do not seem to have resulted in difficulties in securing convictions, since over the past four years the Serious Fraud Office has had a 92 per cent. success rate in obtaining convictions, as against 57 per cent. on average for contested trials?

    Such success is achieved only after a trial has been put together and a jury obtained. We are all painfully aware of that, because we are debating the best way forward for the investigation and presentation of serious fraud, and the best way of ensuring that we get more cases to trial, as well as getting more trials to successful conviction. They are two separate processes, but the right hon. Gentleman rightly and mischievously suggests that we address reality, rather than a mythical jury. I agree. That is the basis for our proposals. There have been instances of real difficulty in obtaining and maintaining a jury that is truly representative, picked from across the nation, not consisting of the unemployed or the long retired—

    Nothing at all is wrong with the long retired or the unemployed, so long as the jury is not made up only of those who are retired or unemployed, as the hon. Member for Southwark, North and Bermondsey suggested. That is what I was responding to.

    In introducing the proposal for non-jury trials in specific cases, could the Home Secretary enlighten the House and say whether his decision was informed by the experience in Northern Ireland of non-jury trials in serious criminal cases, which we have had for 30 years, and the moon and stars did not fall out of the sky during those years? In particular, would he consider two features of the Diplock courts? First, and importantly, there is a right of appeal not only on points of law, but on points of fact; and secondly, and importantly, the judge, who sits alone in those courts, must give a statement of his reasons for coming to his conclusions. That is why we have rarely had bad decisions from the Diplock process of non-jury trials in Northern Ireland.

    No, the stars have not fallen from the sky. There are obviously specific circumstances in Northern Ireland, which we should weigh. We have taken account of the range of experiences, including those that the hon. Lady enunciated, and we have learned a great deal from the Diplock courts, as I said 18 months ago when we debated the development of the Special Immigration Appeals Commission. The House had reflected on these matters in 1997, when it unanimously determined that way forward. I am grateful to the hon. Lady.

    When dealing with the constitution of juries in serious fraud cases, the Home Secretary points to the fact that people who are unemployed, either voluntarily or because of misfortune, form some part of those juries. Does he also accept that it is the universal experience of those who practise in such trials that the juries contain rather more women and rather more disabled people, both of whom are extremely desirable in our juries? Thus we arrive at a more, rather than less, representative jury than we otherwise would. While I have got the Secretary of State, may I also ask whether he is suggesting that a single judge is more representative than any jury in the circumstances?

    6 pm

    I am not putting that argument. Those arguing against me are saying that they want a representative jury, but undermining that argument by talking about changing its representative nature. That is the simple fact. I am suggesting that once one does away with the presumption of a jury drawn from the population as a whole in the normal way, one has reached a different argument and is on a different wicket all together.

    I did not get into the argument about retired people or women. I answered a question from the Liberal Democrat spokesman that presumed that we should be free to retain jury trial, but not the method of drawing on the population for such trial. That is what I am dealing with. Once we have moved away from the presumption of drawing freely on the population as a whole, we are arguing about a different sort of hearing.

    Will the right hon. Gentleman tell the House whether his primary reason for seeking to do away with jury trials in specialist cases is the complexity of cases relating to financial matters, or the fact that their likely length is such as to be intolerable for a typical juror? They are not the same point. Which one is he making?

    I did not confuse those two issues or suggest that one cancelled out or overrode the other. Indeed, I did not say that I was relying on one, but not the other. I do not know whether there is a text somewhere that I am not following, but on whose basis the right hon. and learned Gentleman intervened. If so, it was not mine and I have not said it. It is very difficult to answer a question that I have not addressed.

    I am worried about the Home Secretary. I am not a lawyer—I say that as a matter of pride—but it seems to me that he thinks that he can make his case purely by sweeping assertion, rather than by any sort of reliance on evidence. Why does he think that the contrast is between the total representativeness of the established jury and the complete unrepresentativeness, as the hon. and learned Member for Medway (Mr. Marshall-Andrews) put it, of the single judge? Why is the choice not between a more or less imperfect group of people—more than one person and probably several people—and the dependence of the defendant on the views of one individual?

    I think that the argument is very interesting, and it will be put by the right hon. Member for West Dorset from the Front Bench, but it is not the argument about retaining the normal jury system. That is the point that I have been making, and it has to be made because the attacks on our proposition publicly have been about the destruction of the jury service. I read out the views of the right hon. Member for West Dorset from The Independent and the Financial Times on Saturday, and he has enunciated them on radio since.

    We need to be clear on what we are arguing about. If we are not arguing about retaining the normal jury system and its selection for particular trials, we are arguing about something entirely different. So let us argue about whether a panel or a wider set of assessors with expertise and training to deal with financial matters is the right way forward, presumably on the grounds that wider jury selection does not allow that to happen. Alongside that, let us argue the question of how much time people can devote to jury service without destroying their lives or undermining their jobs so that they seek to withdraw from the jury. I said earlier that more than three quarters of those called for jury service had chosen to find a way of getting out of it.

    My right hon. Friend will forgive me if, as I am not a lawyer, I do not follow some of the more esoteric arguments. To me, the issue is very simple. What we are suggesting is taking away from people an ancient right to be tried by however motley a crew is gathered in a court and giving that role to one person, professional though they may be. Is it not a principle in this House that we do not make laws that rely almost entirely either on exceptions or on the convenience of the Executive?

    I do not think that we should ever rely on the convenience of the Executive, and there is nothing convenient for the Executive about any of this. We are seeking to find a solution to a problem that now appears substantially to be acknowledged across the House. One option is to draw on a limited number of people, assessors or otherwise, who are financially expert in the areas in question. That is an option, and it is about to be put by the right hon. Member for West Dorset. We are not presuming that there is something clever about this; we are trying to find a solution to a genuine problem. Of course, there is nothing exceptional about judges either in magistrates courts or, as I have illustrated, in higher courts. I thought that I heard the world around me suggesting that we should be defending the rights, position and integrity of judges.

    I am much obliged to the Home Secretary for allowing me to intervene. The traditional role of the judge is to interpret the law. Juries have always interpreted the facts. That is the truth of the matter and that is what we are talking about.

    Yes, and in the vast majority of cases they will continue to do so.

    I want now to make my case about jury interference. If the principle at stake is that no trial at such a level should be conducted without a jury, the same principle would apply in relation to jury interference. I put the case that there are instances—again, there are only a few—in which it is necessary in the interests of justice, and not esoteric arguments, to protect ourselves from the jury interference, alteration or disbandment of juries and jury tampering that exist at the moment.

    In Committee, the hon. Member for Woking (Mr. Malins), who used to serve on the Front Bench, referred to a drugs case that had taken place in Liverpool not many months previously. It had lasted six weeks. On the first day of the judge's summing up, one juror had been followed home and offered money to produce a verdict sympathetic to the defendant. He told the judge about it the following day and the judge said that he would discharge him and that the trial would continue. The next day, two more jurors were followed home. They were badly threatened and came into court trembling the following day. The jury had to be discharged and a new trial had to start. The hon. Gentleman said that that cost a lot of money—I think that he referred to £270,000—but much more expensive trials have arisen in very similar circumstances. A recent trial cost £1 million.

    I am arguing the case not on the basis of cost, but on the grounds of sheer intimidation and interference, where the process of justice is so damaged that it is not possible for either a fair trial to take place or for us, the public, to be assured that those who have committed offences are being held to account and that the interests of the public and the victims are being secured. That is what the House has to address this evening.

    In a limited number of cases, where there is felt to be a problem, it is right that the judge should respond, although a right of appeal is of course built into the provisions. When I was in Liverpool two weeks ago, I talked to the chief constable, who enunciated again and again the difficulty that he faced. The issue is not confined to Merseyside, but 80 per cent. of such cases collapse there. He told me that we needed to ensure that, once the police and the Crown Prosecution Service had done their job, it was possible to believe that interference would not damage the chance of getting a fair judgment and, therefore, of getting to the truth.

    I had a bit of a shock when the Home Secretary quoted me. I recall talking about jury nobbling, and I understand the difficulty of juries being severely threatened. Let me tell my right hon. Friend the Member for West Dorset (Mr. Letwin) through the Home Secretary that I hope that I was in accordance with party policy on the issue. However, I have always maintained that long and complex trials can be handled by a jury entirely satisfactorily. That is an entirely separate issue from jury nobbling.

    No, it has not, because I entirely accept what the hon. Member for Woking says. When I was dealing with complex trials, I quoted him on the issue that he describes as nobbling—interference with due process and the jury—so I am not at all abashed.

    A moment ago, I said that we were arguing that it was juries for everything or juries for nothing. I am not making that argument, but others are. Either there is a principle that holds the Executive to account for its particular nature, or there is not. Clearly, we are not making that argument. The hon. Member for Woking and I disagree. He believes that his party policy, adapted to provide expertise, is right. On balance, I believe that it is not. I believe, as he does, that where there is interference, there should be an opportunity—spelled out very carefully, and available only in the limited circumstances enunciated in the Bill—to protect the jurors and the public. That is what we are doing.

    To give another example, the Metropolitan police spent £9 million in 2001–02 protecting jurors in circumstances where intimidation would otherwise have damaged the process so greatly that it would have been impossible to ensure that those who undertook the intimidation were properly dealt with or sentenced. People interfere with juries not as a game, but because they want to get themselves or their friends off for something that they believe they will be convicted for. Some trials have taken place in interesting circumstances. One that took place in Birmingham just a few months ago, again about drugs, has been drawn to my attention. The defendant was found not guilty, but it is strange that the jurors should all have been invited to a lavish party in the city centre just two weeks later. As I told the Police Federation a few days ago, we all have to live in the real world.

    I can easily see a distinction between clause 38 and clauses 36 and 37, and I do not agree with the proposition that it is all in or all out on juries. If clause 38 is to be utilised only as a last resort, as we were assured it would be in Committee—the steps in it are very steep, at any event—I can see its purpose. However, will my right hon. Friend help me with two points? First, the prosecution must convince the judge that there is a real risk of jury tampering. By implication, that will have something to do with the defendant in most cases. How will the same judge then go on fairly to try that defendant? Secondly—

    Order. The hon. and learned Lady cannot make a speech in an intervention.

    6.15 pm

    I am sympathetic to the point that my hon. and learned Friend made, as well as the one she was about to make. If a trial such as the one originally described by the hon. Member for Woking has been materially interfered with, there is clearly a presumption, given what happened to the first jury. In such circumstances it would be sensible for the judge to recommend that a different judge sit alone on the case. Where sufficient evidence has been presented to a judge, they should make a presumption that had they heard evidence prejudicial to a fair trial they should stand down. I have no problem enunciating that this afternoon.

    I am glad to be regarded as in my prime by almost anybody.

    I should like to press my right hon. Friend on a related matter. Inevitably, it will be in the public interest to keep from the defence much information that has to be put to a judge to persuade him of the threat to the jury. How will that be accommodated? How can it be fair to allow the prosecution to pour such information into the judge's ear to get an outcome that the defence will not want? How can the defence be protected from the police simply deciding that they want this chap sent down so badly that they will get trial by judge alone?

    If there is a suggestion of trial by judge alone, there will be a right of appeal, which is right and proper. Let us not assume that there are not instances now in which representations are made by counsel to the judiciary behind the chair. My hon. and learned Friend will know a lot more about that than me, because no doubt she has experienced it. However, I am not sure that it could be described as pouring matters prejudicial to the defence into the judge's ear.

    The right hon. Gentleman referred to the right of appeal, but he will know that that can only be exercised with leave. Will he tell the House the circumstances that would restrict the right to grant leave? To return to the point made by the hon. and learned Member for Redcar (Vera Baird), how will the defendant be able to challenge information privately communicated to the judge that the jury has been nobbled?

    The defendant, of course, is claiming that he has nothing to do with the jury or the nobbling, and let us assume that they have nothing to do with him at all. However, in the real world, some people engaged in criminality have a great deal to lose from the way in which a trial proceeds. I think I am right in saying that the right hon. and learned Gentleman used to practise—[HON. MEMBERS: "Still does."] Forgive me, I live in a world where we only practise politics, but I am surrounded by people who continue to practise law. The right hon. and learned Gentleman will accept that there are rare occasions in organised criminality when an individual acts alone and that there are people whose interests are affected by the outcome of a trial. We should therefore ensure that we get the right result by getting to the truth and ensuring that justice is done.

    We are clutching at straws if we argue that those who are trying to interfere with juries and change the nature of juries by doing so—we heard earlier about a jury that was disbanded—are not interfering with the course of justice. There may be esoteric arguments that that does not matter and it is for the wider good of us all to ignore it, but I do not believe that for a moment. Victims of crime do not believe it; those who are trying to tackle organised criminality, which is growing, do not believe it; and those who see what is happening in relation to cross-border crime and international organised activity, using the most modern techniques, do not believe it. I do not believe that the people whom we represent think that we should live in fairyland or be somewhere other than with our feet firmly on the ground. We can argue until we are blue in the face. So long as we are not taking away the right to a fair trial, and so long as we are ensuring that people have the right of appeal—of course, that right will depend on the grounds on which the appeal is lodged—the safeguards will be in place.

    I want to make an allied point to the Home Secretary. It is not a pejorative point: it relates to a matter that concerns us all very much. Not in jury-tampering cases, but in complex cases, long cases and cases involving property, very often—indeed, almost always—judges will hear in secret public interest immunity evidence that is brought to them by the prosecution, and rule upon it, after which the case goes through to the jury. How can a judge who has heard such evidence from the prosecution in secret possibly then continue to hear the case as a judge of fact and decide on guilt or innocence? In those circumstances, there cannot be two judges because the same judge must be in charge of public interest immunity from the beginning to the end of the case.

    I have established from my hon. and learned Friends the Members for Medway (Mr. Marshall-Andrews) and for Redcar that the prosecution often pour information into the ear of a judge, and that they are concerned that that will bias the judge or that he will direct the jury in a way that he would not have done had it not been done in secret.

    I will, of course, but I am trying to establish what he is against—the pouring of information into the ear, its being done in private, or the judge being unable to make a judgment about whether it is material to the continuance of the trial. It is interesting how many lawyers and barrack-room lawyers are barracking me this evening; we are obviously getting somewhere.

    I speak as a lawyer, but a humble one—a mere solicitor. I hope to assist my right hon. Friend by pointing out that in the magistrates court, when a solicitor makes a submission on a point of law and seeks to exclude evidence, he must do so to the bench that tries the case. Therefore the bench that decides whether the evidence should be excluded is the same bench that goes forward to determine the case. The process that my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) presents as a difficulty is exactly the process that goes on in the magistrates court every day of the week.

    It is not a situation that is regularly dealt with by barristers, which is why it causes them so much difficulty.

    I thank my hon. Friend for that continuation of my excellent relations with the Law Society, for which I am grateful, as I need to have someone in the legal profession on my side.

    My hon. and learned Friend the Member for Medway barracked from his seat that it is not done in chambers. I do not mind where it is done, so long as it is done fairly, the proper judicial process is undertaken, and the judge makes a sensible judgment on the validity of the evidence.

    At the moment, the pouring into the ear of information that is heard only by the judge and the prosecution is validated by the fact that it is the jury who decide the issue of guilt and innocence. Where, however, a judge is privy to information that is known only by him and the prosecution, and he is to decide guilt or innocence, cannot the Home Secretary recognise, first, that that is completely different, and secondly, that it will inevitably contravene the European convention on human rights, because the two sides will not be even?

    No, I do not accept that it contravenes the European convention on human rights. Surrounded as I am by barristers and solicitors, those who would wish to be, and those who used to be, let me say this: we are here to represent the best interests of our constituents by ensuring that the course of justice finds the guilty guilty and acquits the innocent. That is what we are all here for. We have no desire whatsoever to have, even in a limited number of cases, a situation in which, despite evidence to the contrary, intimidation is shown and the case goes wrong. That would not be in anyone's interests, and it would have to be put right on appeal. We are all interested in finding solutions to real problems.

    My right hon. Friend has taken in very well the fact that one of the problems is that of secret information going into the judge's ear that the defence cannot challenge. To avoid any risk of injustice from that, would he consider making available special counsel of the kind with which he will be familiar through Special Immigration Appeals Commission proceedings?

    I am reluctant immediately to rule out such a possibility, even though it has already been discussed at length. I am reluctant to rule it out completely because I am keen to explore all areas and to find solutions wherever we can—I hope that we will be able to address problems in the House of Lords—rather than have a situation in which the Government put up a solution to a problem, then everyone gathers round to denounce it as the end of trial by jury and the end of justice as we know it. In their amendments, the official Opposition propose an alternative solution. I respect that, although I do not agree with their solution. On the serious issue of a small number of cases involving the most difficult criminality, we should try to unite to find a way forward.

    I am grateful to my right hon. Friend. Speaking as a non-lawyer serving on the Select Committee on Home Affairs, I went along with the recommendation that was made, which was more or less broadly in favour of the views that the Home Secretary expresses. Nevertheless, I am concerned that this may be a slippery slope. If the arguments against juries that are advanced are valid, perhaps in future we will be told that virtually all criminal cases should be heard by a judge alone. A system that has been part of our legal set-up for centuries should be defended. Although I am willing to go along with the Home Secretary's arguments to some extent, I am worried about the slippery slope.

    I am aware of the real dangers of the slippery slope. That is why we should listen to any suggestions about confining ourselves to dealing with tampering and interference with juries and to ensuring that we do not let the worst criminals get away with the worst abuse of the criminal justice system.

    I shall draw to a conclusion to allow the House to debate the issues. We are talking about the worst elements of society deliberately setting out to destroy the very system whose credibility we seek to defend and for which hon. Members are honourably arguing. We must not undermine that credibility or create a slippery slope that takes us away from the system that has stood us in good stead over the centuries. I accept that that is the case in relation to jury trial as a whole. I merely ask that we address the situation in the real world as regards the worst of society and what those people will do to innocents abroad in terms of destroying a system that otherwise serves us well.

    I hope that the right hon. Member for West Dorset will one day treat me to the Badger beer of Hall and Woodhouse—almost P.G., one would have thought—in the leafy lanes of West Dorset. I believe that it is known locally as "skunk ale". Perhaps when he and I have supped together, possibly after a Police Federation conference somewhere on the south coast, we will put our foot in it together.

    6.30 pm

    It may surprise the Home Secretary to know that I want to speak mainly about the topics that amendments Nos. 2 and 3 cover. He tried to present an interesting argument, which took the following form: the Opposition must have acceded to the general principle that something needed to be done but since they suggested an implausible or ineffective alternative or set of alternatives, the Government's proposals should stand. That neatly ignores amendments Nos. 2 and 3, which would remove the Government's proposals entirely. They are our first preference. I shall deal later with new clauses 1 and 2 and amendment No. 13, which move in the general direction that he advanced. The problem with his argument is that it did not tackle some points, with which I am about to deal.

    I am grateful for the Home Secretary's statement that the preservation of trial by jury is extremely important because it is true. Although that is a matter of agreement between us, it is important to set out for the record the extent of its significance and the reason for that. At first sight, the importance of trial by jury is not obvious. One could easily take the position that it has no intrinsic superiority over trial by judge. For reasons that I shall advance shortly, I believe that that is the Government's view. However, I believe that trial by jury is intrinsically superior. Its superiority arises from the relationship between the citizen, the state and the law.

    Trial by jury involves the participation of the ordinary citizen in the business of the law, thereby preventing the court from becoming a matter of the state opposing the citizen. That is critical to the deepest foundations of our liberal democracy. I do not say that that applies to any liberal democracy. Others do not have the system of trial by jury, but at least my hon. Friends—and perhaps some hon. Members on the Labour Benches—agree with the conservative sentiment that when we remove one of the foundation stones of our system of liberal democracy, we cannot expect the whole to survive simply because others have found different methods of supporting such a system.

    The right hon. Gentleman knows that my colleagues and I support the view that he outlined. Does he accept an additional element that reflects the same constitutional principle: the importance of lay magistrates, especially when they deal with guilt and innocence in the lower courts? They are ordinary, non- professional members of the public. It is regrettable that the number of lay magistrates has decreased and the number of paid judges who do the job has increased. The public would have more confidence if matters were moving in the opposite direction.

    I am glad that I gave way to the hon. Gentleman because he brings me to my next point. I wholeheartedly agree with him. The principle of the layperson and the exercise of common sense in our courts is important. I agree that the lay magistracy is at least almost as important an institution as the jury in protecting the principle of the operation of common sense. I fear that although the Home Secretary and the Lord Chancellor have aimed in the Bill and elsewhere at a genuine drive for efficiency, they thereby sacrifice the cause of common sense. In justice, when the chips are down, common sense matters more than straight efficiency.

    My right hon. Friend pointed out that the jury or the magistrate is representative of ordinary people. That is the key part of the representation. The Home Secretary suggested that if the representation does not comprise a mixture that ranges across the board, it is not sufficiently representative. Of course wide representation is best, but the key point is that members of juries and lay magistrates are not professional paid people but ordinary people with whom the mass of the public can associate themselves and thus recognise that the system is not set up by authority against them.

    I entirely agree. My right hon. Friend better expresses the point that I was trying to make. Trial by jury reinforces to the general public the fact that justice in this country is a system not of the state opposing the individual but of society gathered to find out the facts. The jury represents society and finds the facts.

    Will my right hon. Friend follow up his point and face the fact that the proposition to which he has committed himself contradicts the new clause that he tabled? If we are considering judgment by one's peers, providing that a person charged with a financial offence can be judged only by actuaries or chartered accountants denies that person a trial by his peers.

    I shall deal with that at the tail end of my remarks. However, I stress for my right hon. and learned Friend's edification, and in seeking his agreement, that the first choice must be the preservation of trial by jury as we know it. Amendments Nos. 2 and 3 would provide for that. I hope that my hon. Friends will vote for them. The proposals in the new clauses are very much second best.

    I am especially glad that the right hon. Gentleman took the intervention of the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) first because it was enlightening. Will the right hon. Gentleman confirm that he does not believe that the judiciary is the instrument of the state? He implied that he believed that it was.

    There is an important difference between reality and appearance. The appearance matters as much as the reality. It is true, thank goodness, that the judiciary remains independent of the Executive in Britain today.

    The Home Secretary has cause to know that that is true. I celebrate the fact. Long may it remain so, but—an important but—the ordinary citizen does not perceive a judge in all his grandeur in the same light as a jury. The jury is representative of the ordinary citizen in a way in which a judge neither can nor should be. Judges are endowed with the majesty of the law and in that sense, although independent of the Executive, they represent the state. There is a difference.

    The right hon. Gentleman is talking about procedure rather than anything else. He speaks of common sense. Is he more interested in the right decisions, or in mere appearance? Is he saying that judges are less capable of reaching the right decision than juries, or is he just saying that that is how it appears?

    I think that there are two answers to that question. Like, I suspect, the House as a whole, I am interested both in the right decisions and in the way in which the law in general is seen by the citizenry. The House certainly needs to be interested in both those things. If what we are interested in is a criminal justice system that works, public confidence is critical. What counts is not merely the individual case, but the way in which the system is seen by the citizen.

    Is it not self-evident that the calibre of a jury decision will be higher than that of the decision of any individual? Twelve diverse, randomly selected people are listening, and have all the time in the world to debate and to cancel out each other's prejudices.

    I will not argue with the hon. and learned Lady about the term "self-evident", but it is clear that the system of applying 12 minds to a question of fact, operating on the basis of common sense, is a good system that has worked. We would at the very least be taking a risk by moving, on a large scale, to trial by judge alone.

    My next question is: do these proposals contain real threats to the prevalence of trial by jury? An important part of the Home Secretary's argument is his claim that he is not really undermining trial by jury. The problem with that argument is that it is wrong.

    Is it not a testament to the genius of juries that, especially in complex cases involving property, they currently convict in 86 per cent. of cases?

    Yes. I shall deal with that later, and when I do I will—if I may—cite the hon. and learned Gentleman's intervention.

    Are the Government's proposals really so different in effect, if not motives, from the earlier mode of trial legislation? That is an important question. If the Bill constitutes a minor adjustment to the jury system, we shall have one kind of debate; if it constitutes a wholesale attack on that system, we shall have quite another.

    Let us take the case of a jury that is held to be about to be tampered with. Let me point out to the Home Secretary—I am not saying that he did not know this, but he glossed over it in his speech—that we are making a critical distinction between two sets of circumstances. In one, a jury has been tampered with: amendment No. 13 deals with that. In the other, the jury has not yet been tampered with, but the prosecution successfully argues that it might be. The Home Secretary wants to let the prosecution argue that the jury might be tampered with, and, under his proposals, if the prosecution persuades the judge of that proposition, trial by jury will fall, subject to appeal.

    What means will the prosecution adopt to argue that the jury might be tampered with? It will allege that the crime of which the defendant is accused was very serious, very well organised, very violent, or something of the kind. Unless it has evidence of previous tampering on the part of the defendant, it will argue that the case should not be dealt with by a jury because such tampering might take place. I have just listed the most serious cases. In the most serious cases, the prosecution will be most likely to argue that the jury should not remain.

    6.45 pm

    Is not this the real strength of the argument about tampering with juries? It is not just that certain cases lend themselves to such intervention; one thing we are all trying to do in the criminal justice system is persuade people to give evidence in the first place. Many people do not come forward because of threats and fear. In each of those cases, the jury might be interfered with because the first attempt to prevent the case from reaching the court failed. There are many such cases in many courts every year.

    I think that the prosecution will advance the argument that I have described in a fairly wide range of cases, not all of which will be the most serious; but it is an important part of the argument that I am about to advance that the prosecution will tend to present the judge with that proposition in the most serious cases. The hon. Gentleman and I need not be at odds about that.

    What about complex trials involving financial or property-related matters, often mis-described by the Government as fraud trials? I am not saying that fraud trials do not fall into that category, but the category is much wider. A major health and safety trial involving corporations will typically be finance-related, complex and involve property. It will presumably qualify. A strong attack by the criminal justice system on a serious drug-dealing gang may well involve complex financial and property-related issues. I am thinking not least of cases that we discussed in the context of another Bill.

    Of what variety are the cases I have just described? They are among the most serious cases. What pattern is emerging? We can anticipate from the Government's proposals, I think plausibly—I am at pains not to put this in hyperbolical or overblown language—that, in many of the most serious cases, the prosecution will persuade the judge that the jury should be removed. That will bring about a bizarre situation. I agree with the hon. Member for Southwark, North and Bermondsey (Simon Hughes) that this will not be the sole outcome, but I expect a large number of relatively minor cases to go on being tried by juries, while a preponderance of the most serious will not be.

    What will the Government tell the House then? They will say, "If we do not need jury trial for the most serious cases, why on earth do we need to preserve it for minor cases? Why should we be so inefficient"—I use the term of which the Lord Chancellor is so fond when referring to lay magistrates—"as to preserve the jury system for minor cases, having accepted that it is not necessary for major ones?" I fear that it would be difficult to resist that logic. This is not merely the slippery slope rightly described by the hon. Member for Southwark, North and Bermondsey; the Home Secretary is taking us well down the slippery slope.

    Is the right hon. Gentleman not ignoring the fact that the vast majority of minor cases—if I may so describe them—are dealt with in the magistrates courts, without a jury, and that that will continue to be the case? The vast majority of criminal cases dealt with in our courts will therefore continue to be heard without a jury.

    That is precisely my point. There will be a bizarre situation in which a large number of very minor cases will be dealt with increasingly by district judges, and a large number of very major cases will be dealt with by judges in the superior courts. Sandwiched between the two will be cases that are rather more major than the most minor, but rather more minor than the most major. They will be dealt with by juries. The Government will tell the House, "This is nonsense. We can do without the juries in the middle section." I know that that will be true—if the Government think about it, they will know that it is likely to be true—but I hope to prevent us collectively ever from finding out whether it will be true, because it is too dangerous to contemplate.

    If we are going to argue the case rationally, as the right hon. Gentleman has been doing, we should not go into a kind of never-never land. We are dealing with a very specific group of cases—fewer than 100 a year—so we should not make presumptions that we did not make before, when 95 per cent. of cases were dealt with in the magistrates courts, higher courts dealt with cases on appeal without a jury, and the remainder were dealt with by jury trial. The removal of a few dozen cases does not materially change that position one iota.

    I had intended to deal slightly later with the Home Secretary's repeated claim relating to fewer than 100 cases, but I shall deal with it now in response to his intervention. If I may say so, I think that that figure is accurate and phoney. It is accurate because it is a reflection of the number of cases in which there was jury tampering or that involved fraud trials. My argument is that the Bill—the provisions in print are what will govern this matter, not what is in the Home Secretary's fondest imagination—allows for a far wider application of the principle than that restricted number of cases.

    Would my right hon. Friend allow me to reinforce his point by drawing to his attention the fact that, if we look carefully at clause 37—which I know that he has—we see that the grounds for securing a non-jury trial are the complexity or length of the trial? It is perfectly true that the Bill then attributes a cause for that complexity or length, but once we accept that complexity or length per se are grounds for a non-jury trial, why have the additional requirement? The Government will in due course ask the House to dispense with that additional requirement.

    That is another point relating to the slippery slope, and I can only gently complain that it was the next point that I was going to make. My right hon. and learned Friend is right. I will not labour this point further. There are three or four other grounds for supposing that this is a slippery slope. The point here is clear: jury trial matters. It matters because of the structure of justice in its relationship to the citizen, and this is the beginning of a slippery slope away from it. Perhaps it is more than the beginning.

    The next stage of my argument is also simple and clear. We have to ask whether any great gains will result from this great step. If the proposals were to result in great gains in the cause of justice—[Interruption.]—and if, as the Home Secretary suggests from a sedentary position, large numbers of criminals who would not otherwise be convicted were to be put behind bars because of these changes, without any significant risk of the innocent being convicted, I can see that there would be an opposing argument.

    But the hon. and learned Member for Medway (Mr. Marshall-Andrews), who reminded me that there is a very high conviction rate in the relevant sorts of trial, is right. The 92 per cent. conviction rate that has been adduced in relation to cases involving the Serious Fraud Office is also right. The evidence from jury-tampered trials is that, on the whole, people have been good at picking the problem up and defending those who are on the juries, and that the conviction rates that attend subsequently are high. I know of no serious empirical base for supposing that moving so far down such a slippery slope is justified by any great and immediate gain. There will perhaps be some gain, but it will not be so great as to be proportional.

    I am not sure whether it will give the right hon. Gentleman any satisfaction to learn that I might vote with the Government tonight. I was on the Home Affairs Committee, we made our recommendation and I went along, with it. But if I do, I shall simply be giving them the benefit of the doubt. The doubt remains, however, and the more I listen, particularly to the fine argument being advanced by the right hon. Gentleman—after all, if an Opposition spokesperson is making a good argument, why not say so—the more that doubt reasserts itself in my mind.

    I am grateful to the hon. Gentleman, who might be the sole example of anyone ever being persuaded by an argument of mine in the House of Commons.

    I have to admit to the right hon. Gentleman that I am not persuaded by his arguments this evening. I would be more sympathetic to his point of view if, in the light of the fact that his party supports the Belfast agreement, which we have had for five years, and that the IRA has been on ceasefire for the six years since 1997, he could assure me that it was now Conservative party policy to campaign for the restoration of jury trials throughout the United Kingdom, of which Northern Ireland is a vital part.

    Much as I should like, for all sorts of reasons, to buy the good will of the hon. Lady, I am astonishingly clear that, mercifully, my remit extends to England and Wales—not that I have any actual remit; that lies with the Home Secretary, but even my shadow remit covers only England and Wales. I ask the hon. Lady to contact my esteemed colleague, the shadow Secretary of State for Northern Ireland, who will have his own views on that difficult matter.

    I am grateful to the right hon. Gentleman for giving way a second time. I find myself offended. He began his remarks by saying that the jury was a critical part of our liberal democracy and that if we removed it, we would have removed one of our democracy's foundation stones. I do not accept that he can simply shift the burden to the hon. Member for Grantham and Stamford (Mr. Davies). The shadow Home Secretary must address the question this evening. As someone who gave an interview to The Independent in which he stated that jury trial was the bulwark of 800 years of our democracy, he cannot allow part of the United Kingdom not to have that pleasure.

    Mr. Deputy Speaker, I have never been more grateful to you.

    The final stage of my argument is also clear and simple. The House must obviously take the Government's proposals seriously, and we must therefore ask whether there are any balancing arguments. Are the Government pointing out things to which we need to pay attention? I have already explained why I do not believe that the Government are justified in making any change on the basis of the purported gains from the proposals—I stress this for the benefit of my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg), among others—and that is why we shall press to a vote amendments Nos. 2 and 3, if you will allow us to do so, Mr. Deputy Speaker, and why that is our first preference.

    We have tried to identify the evil that the Government believe exists. We have also tried to produce constructive alternatives to deal with that evil, or, indeed, those two evils. We have done that in the spirit of compromise, and I want to explain to the Home Secretary quite personally the reason why. We will not compromise on the general principle. I shall ask my noble Friends in the other place to fight to the last breath on these matters, and if that means cratering the Bill, I am prepared to see it cratered.

    Because I am taking that position, I have sought every means at my disposal to ensure that there is an escape route, so that much that is good in the Bill can get through without a confrontation between the two Houses. That is why my hon. Friends and I tabled new clauses 1 and 2, incurring the odium of my right hon. and learned Friend the Member for Sleaford and North Hykeham, whose purity of mind I admire. That is also why we suggested the possibility of an empanelled, expert jury, and why we tabled amendment No. 13, which provides for the abandoning of a jury when there has actually been jury tampering. We did those things in the spirit of seeking a compromise solution that could avoid the Bill falling and which would preserve, in each case, the existence of the jury—I admit that, in the first, it would be an unsatisfactory jury—and point up the attachment of the House and of Parliament as a whole to the principle of jury trial, thereby preventing the descent of the slippery slope.

    7 pm

    I accept that the solution we are suggesting is second best and not fully satisfactory, but trying to prevent us from rolling down the slippery slope is better than allowing us to roll down it. For the sake of avoiding a confrontation between the two Houses, we are prepared to move to that compromise. That is the only basis on which we have put it forward.

    We will not press those proposals to the vote tonight, but I hope that the Home Secretary will see the light and accept the purport of amendments Nos. 2 and 3 when, as I profoundly hope, they are sent back to the House by the other place. I give notice now, however, that if he will accept neither those amendments when they return nor the compromise position, we are prepared to crater the Bill and force him to use, a year later, the Parliament Act so as to take a stand on what I continue to regard as one of the fundamental principles of this country's criminal justice system—our adherence to and belief in the jury system.

    I shall be brief. The Home Affairs Committee addressed these issues in its report on the Bill, and we started by welcoming the Government's intention to retain jury trial in either-way cases. It is sometimes forgotten that they have form in this area, as they made a couple of attempts two years ago to abolish jury trial in either-way cases. I am glad to say that those attempts were seen off, and very wisely the Government dropped the proposal. I refer back to those attempts in relation to the argument on slippery slopes, because they are a sliver of evidence for the suggestion that something bigger—perhaps in the past, perhaps under another Home Secretary—might have been in the mind of the Home Office in respect of reducing the right to a jury trial.

    On balance, the Home Affairs Committee accepted the argument that, in cases of complex fraud, jury trial could be dispensed with, but we did so only on the basis that there was a difficulty in finding a suitably representative cross-section of jurors for a long trial. We did not accept that juries are incapable of understanding arguments in complex cases. We took the view that it is the job of counsel and the judge to make the issues simple enough for ordinary mortals to understand.

    Is there not another conclusion, too? The Crown has an obligation to ensure that the indictment is fairly simple and short, and to avoid extended conspiracy charges.

    That is absolutely right, and it is in everybody's interest—the interest of the defendants, quite obviously, as trials that go on for months are time consuming and debilitating for all concerned, and the interest of the public, as such trials are enormously expensive. I have long believed that even the most complex arguments can usually be reduced for ordinary mortals to a few simple concepts that ought to be readily explicable for people as articulate as those who practise in our courts.

    So, we did not buy the argument, and I am glad to say that, ultimately, at least when he appeared before us, the Minister, Lord Falconer, did not advance the argument that the purpose involves the difficulty of finding jurors capable of understanding the argument. The argument made to us was on the difficulty of finding a representative cross-section of jurors who would be available for a long trial. On those grounds, and those grounds alone, we accepted it, albeit reluctantly and albeit without unanimity.

    My hon. Friend says that we accepted the argument with some reluctance. Does he accept that although the majority, and that includes me, agreed to the recommendation, there was a general feeling of being somewhat unhappy and a wish that such agreement was not necessary? There was certainly no enthusiasm, and he has made that clear.

    There was not unanimity. We thought about the issue carefully, although it is not for me to meter the degree of enthusiasm that existed during the discussion. The conclusion that we reached was an on-balance one on the lines that I have suggested.

    Is the hon. Gentleman, in saying that he rejects the arguments about a complex matter being too difficult for a jury to understand, saying also that he rejects clause 37, which provides for a jury being discharged in certain complex or lengthy trials—either condition is sufficient—and an alternative being put in place?

    We accepted the argument presented to us by the Minister on the difficulty of finding juries to deal with lengthy trials, but the complexity argument I do not buy.

    It is hard to argue with the Home Secretary's point that where there is clear evidence of jury tampering the possibility of a non-jury trial ought to be provided for, because it clearly is in the public interest that villains should not be able to tamper with juries. I have heard nobody seriously dispute that. I would say only that it ought to be demonstrated, not just alleged, that such evidence exists. The police sometimes want to impress on the jury how heavy the villains are who are on trial. They do that sometimes by over-egging the security around the court so that everybody who comes into court has to see armed guards en route and all that sort of thing. That, of course, makes an impression on juries.

    I say again that it must be clearly demonstrated that tampering has occurred. There must not merely be an allegation at which everyone throws up their hands and the jury is immediately dropped.

    If the hon. Gentleman means what he just said and it was not a slip of the tongue, he supports amendment No. 13 rather than the clause, because the purport of that amendment is that tampering has to have occurred—the phrase he used—whereas the clause would allow the advancement of the argument that it might occur.

    I believe that clear evidence has to show that tampering has occurred or that there is an extremely serious risk of it occurring. There has to be evidence, not simply an assertion.

    If the hon. Gentleman will forgive me, I do not want to get bogged down on this point. The safeguard is in clause 41—the right of appeal will be allowed in cases where a jury trial is denied in relation to fraud and jury tampering. No doubt that right of appeal will be exercised.

    I have a couple of queries. My hon. and learned Friend the Member for Redcar (Vera Baird) touched on the question of a judge having had to rule in private on public interest immunity and having heard things that will not be discussed in open court. I have high confidence in our judges' ability to distinguish between evidence given in open court and knowledge obtained privately. I certainly accept that all our judges, or most of them, are independent of the state, but in my experience judges, even the most intelligent, can be a mite gullible.

    I have sat through major trials over which some of the finest judicial minds in the land have presided. No issue of fact and no detail advanced by counsel on either side was too small to be examined forensically by them but they missed the big picture entirely. Observing such trials, it occurred to me—it is true in other walks of life, not just the judiciary—that it is possible to be extremely clever and stupid at the same time. It is an observation that one could occasionally make about the profession of politics, too. Therefore, I have that reservation about the ability of judges to distinguish between what they hear and what is put to them privately.

    I will in a moment.

    I think that the Home Secretary conceded that, in such cases, a judge should be ready to hand over to another judge, not only so that the evidence is not contaminated but so that the trial is seen to be fair. That reservation worries me. I accept the assurances of the Government that this is not a slippery slope and I am glad to hear Ministers reaffirm that proposition today.

    Before my hon. Friend leaves that point, may I ask him to address what seems to many of us to be a central point? If a judge hears prejudicial evidence, or any evidence, in private with the prosecution, they are the only two people in the court who are seized of that information—the defence does not have it—so how can that person, as a matter of principle, sit as a judge deciding guilt or innocence, and how can one possibly avoid contravening articles 6 and 12, to take only two, of the European convention on human rights, which require that there shall be equality between the parties?

    I am not qualified to pronounce on the point about the European convention. No doubt Ministers have checked that very carefully but, on my hon. and learned Friend's first point, I am very sympathetic. I think that, in a case where the judge is party to a lot of evidence or information—some of it would not qualify to be evidence, which would be a bit iffy to put it mildly—that has not been part of the prosecution case, there is a strong argument for insisting that the case be heard by a separate judge.

    Forgive me. I was in the process of winding up when my hon. and learned Friend intervened.

    I reaffirm the point on which I think everyone here agrees: these reforms, just about acceptable though they are, should not be carried further. There should be no further erosion of the right to trial by jury. We should go thus far and no further.

    Simon Hughes