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Criminal Defence Service (Provisional Representation Orders) Regulations 2009

Volume 712: debated on Monday 29 June 2009

Considered in Grand Committee

Moved By

That the Grand Committee do report to the House that it has considered the Criminal Defence Service (Provisional Representation Orders) Regulations 2009.

Relevant Document: 17th Report from the Joint Committee on Statutory Instruments.

This instrument is being made to provide for publicly funded legal representation in cases of investigations of serious or complex fraud governed by the guidelines on plea discussions in those cases that were issued by my noble and learned friend the Attorney-General on 18 March 2009.

The Criminal Justice and Immigration Act last year inserted paragraph 1A into Schedule 3 to the Access to Justice Act, headed “Individuals to whom right may be provisionally granted”, and these regulations are made under that paragraph and under paragraph 2A(1)(c). At the time of making that amendment to the Access to Justice Act, the Government envisaged making regulations to deal with plea discussions. That had been recommended in the final report of the fraud review, which was published in July 2006.

The report made a number of recommendations encompassing the prevention, reporting, measurement, investigation and prosecution of fraud. The underlying message in the report, which the Government fully accepted, was that it was essential to have an overarching fraud strategy linking all these areas and drawing in all interested parties throughout the public and private sectors.

On the subject of fraud prosecutions, the report recommended that a framework and new guidelines on the conduct and acceptance of pleas by prosecutors in fraud cases should be issued by the Attorney-General. Detailed proposals for the framework for plea discussions were the subject of a public consultation by the Attorney-General in 2008. With some caveats, which we have addressed, the majority of respondents supported the implementation of the framework.

Discussions about the plea and possible sentence already take place in criminal cases in England and Wales. They can be highly beneficial in saving time and costs, and in particular can reduce the stress experienced by victims and witnesses. The benefits can be particularly marked in fraud cases, where the investigation, case preparation and trial are often particularly lengthy and typically run for a number of years. The discussions are also likely to be more complex in these cases than in others. The Attorney-General’s aim in issuing guidelines was to put these discussions on to a clearer footing in fraud cases.

Enshrined in our criminal justice system are three key principles. First, it is the duty of the prosecutor to ensure that the case is put before the court in a way that reflects the true facts and the full gravity of the offending. Secondly, the defendant must not be put under any improper pressure to plead guilty, so the framework adds no new incentive or sentence discount that would reward the defendant for reaching a plea agreement. Thirdly, the court must have the unfettered discretion to pass the right sentence for all the circumstances of the case. It is important to emphasise that the court’s hands will not be tied in any way by this process.

The Attorney-General is confident that the proposed framework safeguards these principles. It has been designed to complement the legal system of England and Wales, rather than being copied from another jurisdiction where different considerations may arise.

I shall now speak to the detail of the draft instrument. Currently, a representation order for publicly funded legal representation in criminal cases can be granted only after an individual has been charged. This instrument allows the provisional grant of a representation order at an earlier point in a criminal investigative process in order that the prosecution and defence may discuss, and in appropriate cases agree, the basis of a guilty plea. If a plea agreement is reached, the case proceeds to the Crown Court in the usual way. Judicial discretion will not be fettered in any way, so judges may accept or reject the plea agreement.

The instrument also makes provision for circumstances in which provisional representation orders must be withdrawn. Broadly speaking, the Legal Services Commission must withdraw the provisional representation order where the plea discussions come to an end, where an individual is charged, or after three months have elapsed. The commission may also withdraw a provisional order where it believes that the plea discussions are unlikely to lead to a plea agreement.

The Attorney-General’s guidelines on plea discussions in cases of serious or complex fraud will encourage discussions about guilty pleas in fraud cases to be much earlier and more transparent. Avoiding costly and lengthy fraud trials would be beneficial for the criminal justice system as a whole, including legal aid, and would provide an earlier outcome for victims and witnesses as well as defendants.

The three-month lifespan of provisional orders may be extended once, on application to the commission, for a period of up to three months. This limited period is important to ensure that the process is not allowed to drift or, if unsuccessful, simply delay cases.

The instrument will cease to have effect on 31 December 2011. At that stage, we will review the effectiveness of the process. If the process is benefiting the criminal justice system, we envisage introducing a scheme based on graduated fees, in common with many other areas of legal aid.

In order to introduce provisional representation orders, the Lord Chancellor will need to amend two other statutory instruments by the negative procedure before provisional orders can be implemented on 1 August 2009. I must make noble Lords aware that a reference to Regulation 2A(1)(c) was inadvertently omitted from the preamble in the draft currently before the House. We have consulted the Joint Committee on Statutory Instruments on this omission, and as a result a correction slip has been published to correct this in the draft before the Committee. The omission does not affect the substance of the regulations. I beg to move.

I thank the Minister for his explanation of these orders which, in effect, bring in legal aid at a much earlier stage in complex fraud cases. He is right to stress that the regulations will cease to have effect on 31 December 2011—that is, in two-and-a-half-years’ time—and that the Government will then review how they have been acting and then, according to whether they have had a positive effect, decide whether to continue with them. Will the noble Lord expand a little on what he means by a “positive effect”? Does it mean that there will be savings in both time and cost in some of these complex cases—many of which, as the noble Lord put it, can last for months or years, be very expensive and a drain on the Courts Service—or are there other factors relating to justice and the administration of justice that the Government wish to take into account?

I add my thanks to the Minister for his explanation of the order. When Clause 56 of the Criminal Justice and Immigration Bill was going through the House we made no objection to it and we were very pleased that the Bar Council and the Law Society were supportive of the consultation. This was for two reasons: the first is that the instrument also makes provision for circumstances in which provisional representation orders may or must be withdrawn; and the second reason, which is quite attractive, is that the Attorney-General’s guidelines on plea discussions in cases of serious or complex fraud will encourage discussions about guilty pleas in fraud cases to happen much earlier and more transparently. That will avoid costly and lengthy fraud trials, which will be beneficial to the criminal justice process.

As this scheme is being set up as a pilot, it would be very helpful if the Minister could indicate how long he expects the pilot to run. When it has finished, will the Government publish the results and come back to the House to update us on how it has worked?

The noble Lord, Lord Henley, asked me, perfectly reasonably, what the positive effects will be. I cannot add to what I said in opening: essentially, there will be a saving in time and costs, which is a good thing.

However, the human dimensions are also valid. I was a witness in the infamous Jubilee Line case, where the events had taken place so far in the past that the idea of having to go in front of a jury and reveal the poverty of my memory was in itself stressful. I think that I answered two out of every three questions with, “I cannot recall”. I was a minor witness, but there were hundreds of witnesses. Many of my friends who were witnesses considered it an irritating event in their lives. Clearly the victims are in a similar situation.

These cases often delay justice, perfectly reasonably, because of their complexity. Securing a safe path for defendants, where they have a reasonable understanding of the range of sentencing against them after following a transparent and positive process, must be good for them. They can be sentenced, serve their punishment and then get on with their lives.

The scheme will run until its sunset date in the order, which is December 2011. We will publish the results of the pilot and consider what to do from 2012 onwards. My understanding is that that will be once we have published the results of the pilot and are able to consult on it. I shall write to noble Lords if we have more precise information on how the pilot will be judged and more on the timescale.

Motion agreed.