Bridget
Prentice: The questions raised are all very important, and
I will do my best to answer them specifically as far as I can. If I
miss anything, I will ensure that members of the Committee are given
full details at a later stage.
The hon. and
learned Member for Harborough asked whether the provision was a device
to bribe defendants, and I want to emphasise that it most certainly is
not. This is not a US-style system; it is about plea negotiation and
encouraging both sides to talk, pre-charge, to make the process more
transparent. As I said, there is no incentive for a defendant in terms
of getting a reward at sentence time as a result of earlier
negotiations. The hon. and learned Gentleman went on to talk about not
fettering the judge’s discretion, and rightly so. It will be for
the judge to take into account whatever he or she sees fit when
deciding the sentence at the end of a trial.
An important
question was asked about what happens if new information comes to light
during the course of the pre-trial discussions. If that happens, it
would be for the prosecution either to pursue separate proceedings if
it is in a different area, or to reflect on whether to proceed with a
particular issue. In a sense, that is no different from what the
prosecution should do in any criminal case if new evidence comes to
light.
The hon. and
learned Gentleman also asked whether full credit would be given for a
plea discussion. That is a matter for the judge, and the prosecution
would offer a plea discount only in some
cases.
Mr.
Garnier: Offer a plea discount? I thought that sentencing
was unfettered. There is no question of the prosecution offering
anything.
Bridget
Prentice: In reference to what the hon. and learned
Gentleman said, he knows, no doubt better than I do, that in the course
of proceedings and charging defendants, the prosecution may often
decide to look for a lesser charge on the basis of information that is
put before it. I was referring to
that. The
hon. and learned Gentleman asked about a discount. It does not give an
incentive to the defendant in the sense of what the sentence might be,
but it does in the sense that they will get the trial over and done
with more quickly. Lots of defendants, almost as much as victims and
witnesses, would prefer their trial to take place more quickly than it
might do at
present. The
hon. and learned Gentleman also asked whether there was any extra cost.
No, there is not, but the costs will come to the fore earlier than they
do in current circumstances.
Jeremy
Wright: What do the Government envisage in that regard?
How likely is the opportunity to be taken up by defendants? If a
defendant or someone under investigation decides that they wish to
enter an agreement with the prosecuting authority to accept a degree of
blame for what has happened, the prosecuting authority can renege on
the deal later and say that, in the light of extra information that has
been received, he has decided that he will charge the defendant with
something additional to that for which he had agreed to accept
responsibility. That is what I understand from what the Minister
said. From
the other point of view, however, there is no advantage to the person
concerned in accepting responsibility early on, because there is no
advantage in terms of later sentence. How often does the hon. Lady
think that someone under investigation is likely to take advantage of
the opportunity
offered?
Bridget
Prentice: Given the consultation that took place last
year, it seems that in many instances quite a number of people in those
circumstances will take advantage of such an offer. It will be made
clear to them early on that it is not about plea bargaining, but
discussion and transparency. It is about their being able to get their
case dealt with more efficiently and quickly. As I said, if other
separate issues come to light, people will also be made aware that
those will be dealt with separately. That can only be right. We cannot
simply say, “Something else has come to light, but we are not
going to deal with it at all.” That would undermine the justice
system
entirely.
Jeremy
Wright: That is not quite the point that my hon. and
learned Friend was making, nor is it the point that I am making. It is
not a question of separate charges or separate matters coming to the
attention of the prosecuting authority, but what happens if the
development of the investigations and the view of the prosecuting
authority changes by virtue of the passage of time and extra
investigation into the same charges. What will be the consequence for
the individual?
Bridget
Prentice: The way that it will work is, first, that the
agreement is made. Both parties will sign it. The agreement will have
the list of the charges, the statement of the facts and a declaration
signed by the defendant personally that he or she accepts the facts and
admits guilt to the agreed charges. When that has been signed, but
proceedings have not yet started, the prosecutor can review the case in
accordance with the Attorney-General’s code. Assuming that the
evidential stage of the full code test is satisfied on the basis of the
signed plea agreement and any other available evidence, they will
arrange for proceedings to be instituted by either a summons or a
charge. At that point, the defendant or the person who is being
investigated has the opportunity to see exactly what is being put
before them. I hope that I have answered the hon. Gentleman’s
question to some extent. If, on reflection, I think that I have not, I
shall come back to him with further information.
The hon.
Member for Carshalton and Wallington asked about the other statutory
instruments. I said that amendments will have to be made to the
Criminal Defence Service (General) (No. 2) Regulations 2001 and the
Criminal Defence Service (Funding) Order 2007. The Lord
Chancellor will also be able to prescribe whether the individual can be
represented by a QC or a junior advocate. He also asked about graduated
fees. For the most part they are the norm in Crown court cases, which
is why we are using graduated fees in this instance, rather than the
fixed-fee system.
The hon.
Member for Wellingborough was concerned about the 21-day rule. The two
other statutory instruments that need to be laid will have to be laid
this week to comply with that rule. I can assure him that, as far as I
am aware, that is going to happen. He also asked about the role of the
Joint Committee on Statutory Instruments. It considers affirmative
instruments before they are made and negative instruments after they
are made, and sometimes that can take quite a long time.
I hope that I
have answered all the questions.
Mr.
Garnier: What is the estimated cost of the operation? The
Minister may have answered, but if she did I did not
hear.
Bridget
Prentice: I did not answer that question. I do not know
the answer at the moment. I will have to write to the Committee with
the estimated cost. I can assure the hon. and learned Gentleman that
after 31 December 2011, should we decide that we want to proceed with
this system, there will be further
consultation.
Mr.
Garnier: Surely the Minister must have come to the
Committee with an idea of the expenditure required to put the scheme
into operation. I am a little surprised that she cannot even have a
stab at the figure.
Bridget
Prentice: I have always believed in being open and
transparent with the Committee. I cannot, in my last file here, find an
estimate of the costs, but I will chunter on for a minute or two, just
in case something pops into my head. We think that considerable savings
will be made as a result of this system, and the overall impact should
be cost-neutral. I hope that that satisfies the hon. and learned
Gentleman.
Tom
Brake: I am sorry to bring to the Minister a subject on
which we have not touched. It might be appropriate for her to explain
how a decision will be arrived at that plea discussions are unlikely to
reach a conclusion. Who has the final say on whether those discussions
have reached, or are unlikely to reach, a conclusion? Will there be an
appeal process against that decision?
Bridget
Prentice: There is no appeal process as such, but the
three-month time frame will be the measure by which people can decide
whether there is likely to be a conclusion to those discussions. They
can ask for a second three-month time frame, but after that we take the
view that the process is taking too long for further discussions to go
on.
Tom
Brake: So it will simply be based on the time that has
elapsed, with no other consideration being taken into
account?
Bridget
Prentice: As far as I am aware, that will be the
case.
Mr.
Bone: The Minister very helpfully dealt with the issue of
the statutory instrument, but it would have been helpful if there had
been more detail on that in the explanatory memorandum. Just to say
“None” was clearly incorrect.
I am not
getting at the Minister personally, but when a statutory instrument
comes to Committee, there should be a cost analysis. We should know
whether it will cost or save money. She cannot have it both ways. It
cannot be saving substantial sums and be cost-neutral. It must be one
or the other. If it is saving substantial sums, that is not good
enough. We need to know the figure.
Bridget
Prentice: I do hope that this is the last time I
pop up and down, but of course I am happy to take any further
questions.
On ending a
discussion, there are three-month slots and the Legal Services
Commission will use its regulations to decide whether there is a need
for it to continue. There will be savings for the criminal justice
system as a whole in terms of individual cases—for example, as I
said, for victims and witnesses. It is not always easy to give precise
figures, but the overall court system will be cost-neutral because
cases will come through more quickly.
I agree that
the explanatory memorandum ought to be as clear and detailed as
possible so that we do not have to get into this kind of dialogue in
Committee. I will ensure that we look at the explanatory
memorandum, not just for this instrument but in the future. If I
advocate transparency, I ought to ensure that we carry it out within
the system that we use. On that basis, I hope that the
Committee can accept the
regulations. Question
put and agreed to.
Resolved, That
the Committee has considered the draft Criminal Defence Service
(Provisional Representation Orders) Regulations
2009. 11.2
am Committee
rose.
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