Crime and Courts Bill [HL]

Lord Goldsmith Excerpts

Tuesday 13th November 2012 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, my noble friend is, as always, entirely on the ball. My amendment is wrong in exactly the way that he mentioned. It should be “or an individual” rather than,

“but may not be an individual”.

So the words that ought to go are, “but may not be”, to be replaced by the word, “or”. For that, I apologise, and I hope that I will be allowed to alter my amendment accordingly. I am not proposing to press it in any event, but we can bring it back on Report if necessary, in a better form.

[Lord Goldsmith]

My Lords, I will speak to Amendment 44 standing in my name, but I want to speak to Amendment 23 as well. Before I do that, and so that I do not have to repeat this on later groupings, I want to repeat the declaration of interest that I made on 30 October at col. 575. I also want to repeat my belief that this is a very useful addition to what the noble Lord, Lord Marks, has described as the armoury for prosecutors and for law enforcement agents. I think that that is absolutely right. On 30 October, I explained how I had been thinking about this when I was in office and, indeed, I introduced at the other end of the scale of offending something that was equivalent: conditional cautions. I believe that this is worth while and I think that the former Solicitor-General, Sir Edward Garnier, deserves credit for having pushed this forward. I had the benefit of talking to him about this before these amendments came forward into this Bill. So I do support them in principle. The few amendments that I have put down are designed to try to make it as workable as possible, given that the principle is there—others may take a different view about the principle—and to make it as useful as possible.

There are some technical amendments but also one or two that relate to the scope of DPAs. I want to underline the fact that I am very grateful to the noble Lord, Lord Marks of Henley-on-Thames, who has made this point. The important issue about a DPA is that it is not just punishment. It can become punishment, but it is about changing behaviour and about compliance. It is a carrot and stick approach.

On the point raised by Amendment 23 about whether this should be capable of being extended to individuals, I repeat what I told the Committee on the previous occasion, that it was actually in the context of individuals that I first saw the benefit of arrangements of this sort. The noble Lord, Lord Marks, has referred to drug offences, and he is quite right. I saw in operation in the United States deferred prosecution agreements being used as a powerful tool to change the behaviour of people who were drug offenders and who seemed incapable of holding down a job and therefore living a life beneficial to themselves, their family and the general public. This was achieved by the combination of a strong statement that if they did not comply in particular ways—taking drug tests regularly, staying clean, following the advice of probation officers or the equivalent—they would suffer serious imprisonment, and the inducement that if they did comply, not only would they not go to prison but they would not have a conviction either. That could be very important to them in terms of getting jobs in the future. On more than one occasion, I watched judges who were speaking on a very direct basis to offenders, reminding them of their obligations and saying, “This is what you have got to go through. This is how you have to comply if you want to get the benefit of this arrangement”. So I think that this is potentially very valuable for individuals, and I ask the Government to think again.

The noble Lord, Lord Phillips of Sudbury, is of course right about the technical issues on the amendment, but I think that the purpose behind it is very clear and, if the principle were accepted, I am sure that the Government would sort out the precise wording to make it work. I do not think that the noble Lord can change the amendment while on his feet.

In the same context, I turn to Amendment 44 in my name.

[Lord Phillips of Sudbury]

I am most grateful to the noble and learned Lord for giving way. Does he not have a residual concern that if one allows individuals into this plea-bargaining regime it could give rise to the sort of scandal that my noble friend Lord Marks referred to of rich, powerful and well lawyered individuals escaping the opprobrium of prosecution and appearance in court that might otherwise be the way forward?

[Lord Goldsmith]

I am not concerned about that for this reason. There are two very powerful safeguards in the Bill that should prevent that. First, the DPA has to be agreed by a prosecutor and, as the debate on the previous amendment demonstrated, not just any old prosecutor but either the Director of Public Prosecutions or the director of the Serious Fraud Office—or, possibly, a person designated by the Secretary of State. I leave aside the locum tenens that might come in; the Minister will tell us at some point how likely that will be. First, the prosecutor has to decide whether it is appropriate. Having spent, as the Committee will know, a lot of time with prosecutors when I was in office, I had a high regard for their understanding of what the public interest and public reaction is. They know when people need to go to prison, if they are convicted, and they know when it is appropriate for them not to do so. We can rely a great deal on them to decide which cases are appropriate and which are not.

There is then a second safeguard. Under the Bill as it stands, it has to go to court twice, and the court has to be satisfied that it is appropriate and proportionate for such a step to be taken. Those safeguards mean that one can be much more relaxed about the risks to which the noble Lord, Lord Phillips of Sudbury, refers. Of course, I would entirely agree with him that if we had a situation in which the system operated only to the benefit of the rich it would be wholly unsatisfactory. That is one reason why I think that extending the ability of DPAs so that they cover the sort of offence that I have referred to and individuals would meet part of that concern. If anything, I am worried that by limiting this to economic crimes for companies and partnerships one sends the very message that the noble Lord, Lord Phillips of Sudbury, does not want to be sent. I invite the Government to think very hard about that.

Those are the two safeguards. My personal preference would be not to add any other barriers. I would not add the barrier of the offence being likely to carry a sentence of imprisonment. As the noble Lord, Lord Marks, recognised, if this was extended to cover the sort of case with which I have been concerned it would rule those cases out. I would leave it to the good sense, judgment and sense of public interest of the prosecutor and the court to limit the cases. For the same reason, I would leave the ambit of cases that could be covered open. I would not try to cherry pick through the statute book to find other offences that might be appropriate. I would leave that to the prosecutor and then to the court to say whether it was appropriate to use it for this sort of environmental offence or that sort of health and safety offence. I predict that fairly soon we will have a code giving guidance, and no doubt there will be debates in this House and in other places from time to time as well, and we will see the sort of offences that are appropriate. It is a very useful tool. Other dispositions are not normally limited in this way to particular offences, individuals or specified periods in prison. When I move my amendment, I will invite the Government to consider those points very carefully.

[Lord Beecham]

My Lords, at Second Reading I expressed misgivings about the introduction of this new concept which were shared by other Members of your Lordships’ House. However, it is clear that the proposal will go ahead. It is certainly possible for us to live with that and, indeed, to seek to improve the legislation on the way.

I listened with great care to the reference of my noble and learned friend Lord Goldsmith to the desirability of extending the DPA process to individuals. However, I am still not quite persuaded about that. I certainly would like to see how the original intentions of the Bill are carried out and what effect they have on what I take to be the basic approach of the Government, whose rationale is that in serious cases, which take an inordinate amount of time and cost an inordinate amount of money to pursue, adopting this measure might achieve a swifter resolution of the problem and, as the noble and learned Lord rightly reminded us, help to pursue the desirable objective of changing behaviour. One particularly looks to that approach being applied in the corporate field. Only today we have seen across the pages of the Guardian an apparent example of the kind of corporate misconduct that could well lead to a massive investigation. One might think that that is an ideal case for the application of this new principle. However, the new principle departs from the traditions of our jurisprudence—as do other things that we shall discuss shortly, but not in connection with this Bill—and is not something to be embarked on lightly. In particular, we need to continue to bear in mind the state of public opinion as it might develop.

I quite take the point that it is not necessary or desirable to confine the scope of this new procedure to economic and financial crime, although I suspect that that is what has triggered it. I am particularly attracted by the references of the noble Lord, Lord Marks, to environmental issues. I think of some of the cases that we have debated in other contexts that involved damage to the environment. Those cases can also be formidably expensive and, almost by definition, difficult to pursue. The noble and learned Lord, Lord Goldsmith, is right. We cannot list every conceivable item. There has to be an element of discretion. It would be sensible for this matter, and its extension, to be the subject of orders and therefore subject to parliamentary approval. I agree with the noble and learned Lord that Amendment 35 in the name of the noble Lord, Lord Marks, probably goes too far.

I want to touch briefly on Amendment 48 in my name which seeks to establish a sunset clause. This is one of three amendments which are partly designed to reassure the public that this measure is not undertaken lightly by the Government and Parliament and that, novel as it is and potentially almost offensive as it could be to some people’s sense of justice, it will be subject to very careful review which is more extensive than the post-legislative scrutiny now available. My amendment would compel a proper parliamentary review of the whole issue if, in the light of experience, it is thought appropriate to renew the provisions. I suggest a five-year period because by definition many of these cases take a long time and it will take time to see how the new system beds down.

The Minister was not oversympathetic to that suggestion on the previous occasion we discussed this matter. However, I hope that it will be given consideration because we cannot lightly embark on this massive change, with the implication that people—corporations rather than individuals—can buy their way out of difficulty. I will return to that thought in relation to other amendments. I hope that the Government will look sympathetically at some of the points that have been made, notably about the extension beyond simply economic and financial crime, and in particular at the possibility of a sunset clause as proposed in my amendment.

[Lord Goldsmith]

The noble Lord referred to someone buying themselves out of trouble, or whatever it may be. It is the same sort of idea that the noble Lord, Lord Phillips of Sudbury, raised. Would the noble Lord agree that as well as a financial penalty, a DPA could well provide an obligation to comply in particular ways in future? That is not the same thing as buying your way out of trouble. It is accepting a form of conduct in future that hopefully would be beneficial to the public and everyone else and is not just a matter of pounds in your back pocket.

[Lord Beecham]

I am talking about public perception, which might well be less grounded in those more fundamental objectives than we might give it credit for when debating it in this environment, dominated as it is—looking around the Chamber—by lawyers. We have to carry the public with us. The noble Earl, Lord Attlee, is aghast: unfortunately for the legal profession, perhaps, the lawyer gene apparently did not pass from his grandfather. We have to take public perception on board and it is in that sense that I use the term.

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Amendment 35 is dependent on the extension of the availability of DPAs to individuals. It would prevent the court, in the case of an individual, from making a declaration that a DPA was likely to be appropriate in circumstances where it is likely that a custodial sentence would be imposed upon conviction. As things stand, extending the availability of DPAs to individuals, or to non-financial or economic offences, is not what the Government are proposing at the current time. The reasons for the DPA, as has been noted by the noble Lord, Lord Beecham, represent an entirely new approach to the criminal justice system. The scheme set out in Schedule 17 has been specifically designed as a response to the problem of prosecuting organisations that have been involved in alleged financial or economic wrongdoing.

[Lord Goldsmith]

More than once in this debate it has been said that this is an entirely novel approach. I invite the noble Lord to consider the fact that we already have deferred sentences, under which judges say, “If you do certain things”—and they are supposed to say what they are—“over the next three or six months, I will take a different course”. We have suspended sentences. I have already referred to the fact that we have conditional cautions. I challenge the proposition that the Government’s proposal is so novel, and invite the noble Lord and his office to consider that.

[Lord Phillips of Sudbury]

That applies in a case that has been tried in open court and a conviction has been made. It is vastly different from the plea-bargain situation where there is no open-court hearing, no obloquy and no public shame.

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[Lord Marks of Henley-on-Thames]

My Lords, I shall speak to Amendments 24, 25, 26 and 27. That suite of amendments has one purpose which is to make a financial penalty compulsory as a requirement of a DPA.

I suggest that there is an anomaly in the Bill as drafted. There is no compulsion to agree a financial penalty. It is one of a series of optional requirements. However, if a DPA contains a financial penalty, that penalty has to be broadly comparable to the fine that a court would impose on a plea of guilty. Therefore, the DPA has to have either no financial penalty at all or a full financial penalty comparable to the penalty that would be imposed by a court. The reason why I suggest that a financial penalty should be compulsory is to maintain public confidence in the new system and to prevent DPAs being seen as a soft option. That is particularly important if they are to be used only for economic and financial crime by corporations rather than more widely. At the moment, if a DPA can be agreed between an offender and a prosecutor without being subjected to the penalty that a court would impose, the innovation runs the risk of being tainted by the allegation that it amounts to no more than plea bargaining, the sort of suggestion made by my noble friend Lord Phillips of Sudbury.

I entirely accept that there might have to be an exception allowed for cases of genuine inability to pay, either at the agreement stage or at the stage when a breach or possible variation is considered under paragraphs 9 and 10, or at both stages. Subject to that qualification, I suggest that a financial penalty comparable to a court fine in lieu of prosecution should be at the heart of the new arrangements. I beg to move.

[Lord Goldsmith]

My Lords, I will make some observations about the noble Lord’s amendments in this group. I shall speak also to Amendments 28 and 29 in my name. It is worth reminding ourselves what the requirements of a DPA may be, as set out in paragraph 5(3). We have spoken as if the only requirement is likely to be a financial penalty. We talked about paying the price and buying one’s way out of trouble. However, a number of requirements may be included, not just the payment of a financial penalty. The words “financial penalty” appear in paragraph 5(3)(a). Paragraph 5(3)(b) refers to a requirement,

“to compensate victims of the alleged offence”.

Paragraph 5(3)(c) refers to a requirement,

“to donate money to a charity or other third party”.

Paragraph 5(3)(d) refers to a requirement,

“to disgorge any profits made by P from the alleged offence”—

no doubt to the person from whom they have been made, not to the prosecutor.

Paragraph 5(3)(e) refers to a requirement,

“to implement a compliance programme or make changes to an existing compliance programme relating to P’s policies or to the training of P’s employees or both”.

I wish to underline that that can be a very powerful tool for changing behaviour, but also an onerous tool. Frequently in cases where such a system exists, a monitor is required. The company then has to pay for an individual—the noble and learned Lord, Lord Woolf, was such a person—who will have full access to what it is doing and whose job it will be, from inside, to see that it is complying with the programme. That can be a very powerful tool for making sure that it changes its behaviour—but, as I said, also an onerous one.

Paragraph 5(3)(f) refers to a requirement,

“to co-operate in any investigation related to the alleged offence”,

and paragraph 5(3)(g) to a requirement,

“to pay any reasonable costs”.

I invite the Government to reconsider even their proposal, whether or not they accept the amendment of the noble Lord, Lord Marks. Possibly this is one of the more important amendments being considered tonight. I looked back at the Government’s response to the consultation on this offence. I noted from page 28 of the paper that more than half the respondents to the consultation did not agree that there should be a fixed minimum payment for a financial penalty. I wish to understand why, given that the majority of respondents took a different view, the Government have committed to this.

I am concerned about several things. First, if we impose this restriction, the DPA may be used in fewer cases, because it will become unattractive to agree to it. I recall that in a previous debate, in answer to a question from me, the noble Lord, Lord McNally, confirmed that the Government saw DPAs being used even in cases where the defendant did not admit guilt. In those circumstances, it becomes surreal to start talking about the financial penalty that would have been imposed on a defendant if they had pleaded guilty when they have not.

Secondly, the cost of the compliance programme—in terms not just of money but of obligation—can be sufficiently significant that it justifies saying, “No, you do not have to pay the same financial penalty”. I will also ask a question about financial penalties. That is why I read out the list. “Financial penalty” is only one requirement on it. I fear that by imposing this obligation, we may create a distorted view. For example, somebody may say: “What about the victims?” The answer may be: “I am afraid that I cannot afford to compensate them because you are making me pay a financial penalty which is commensurate with what I would have been fined, so there is no more money, or at least I am not giving you any more”. That is quite contrary to the principle in the criminal law that where financial measures are made, you treat the fine as the second thing, and if there is money for compensation, you try to get that paid first. I am concerned that this will have a counterintuitive and unsatisfactory effect.

I would avoid this sort of perverse incentive. I would avoid putting on the straitjacket. Of course I take the point about public confidence—although the more in this debate we invite the public not to have confidence, perhaps the more they will not have confidence. Perhaps we should start looking at this in a different way. My answer to this—as it was to the previous amendment—is that there is a double lock on a DPA in the form of the most senior prosecutors and the court. That is sufficient to ensure that what comes out of the DPA is satisfactory. I therefore do not support the amendment of the noble Lord, Lord Marks. My Amendment 28 is designed to have the effect that the financial penalty should not be more than the fine would have been, which is obviously perfectly reasonable.

Amendment 29 deals with a somewhat different but equally important point. It seeks to change the provision in sub-paragraph (5) that a,

“DPA may include a term setting out the consequences of a failure by P to comply with any of its terms”,

and convert it to an obligation not a permission. This is on the basis that the DPA should state what will happen to you if you do not meet its terms—that is what this is all about—in the interests of both the public and the person who is on the receiving end of the DPA. It is an amendment of a different order but I invite the Government to consider it.

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[The Minister of State, Ministry of Justice (Lord McNally)]

Dear, dear, dear. I noticed that my noble friend Lord Ahmad at one point referred to the noble and learned Lord, Lord Goldsmith, as his noble and learned friend. In some ways, both Front Benches are grateful for the noble and learned Lord’s interventions and draw on his experience in this area. In that spirit, I shall take another look at both of his amendments and take advice on them.

Paragraph 5 of Schedule 17 sets out both mandatory elements that every deferred prosecution agreement must include—namely, an agreed statement of facts and an expiry date—and a number of optional elements set out as a non-exhaustive list of potential terms.

As my noble friend Lord Marks has explained, Amendments 24 to 27 would require a financial penalty to be agreed and imposed in every case; whereas, under the Government’s proposals, that is a matter to be agreed by the parties depending on the particular circumstances. The Government have taken the view that, for the purposes of this approach to dealing with alleged criminal wrongdoing by organisations, there must be flexibility to deal with each case individually. As such, our intention has been, as far as possible, to limit the mandatory elements of a deferred prosecution agreement. I defer to the noble and learned Lord, Lord Goldsmith, on whether it is a wholly new approach. As he says, there are at least some areas of our law that are pathfinders for this. However, I think that it is a new approach to economic crime.

It is important to remember that this is a voluntary process and that the outcome will be an agreement between the prosecutor and an organisation, as distinct from court-imposed sanctions. It is essential, therefore, that the parties are able to negotiate terms in an individual case that are tailored to the particular type and extent of the alleged wrongdoing, as well as to the wider circumstances of the case and the organisation, including its financial circumstances. Ultimately, the package of terms will be the subject of judicial scrutiny and the judge will consider whether, taken as a whole, they are fair, reasonable and proportionate. If the judge is not of that view, he or she will not approve the agreement.

A financial penalty is just one of the potential terms of a deferred prosecution agreement, and is one of five of the suggested terms which are monetary in nature. While the illustrative terms in paragraph 5 are not listed in order of priority, it is the view of the Government that any terms of an agreement relating to compensating or making reparation to victims should take priority over the other monetary terms, including any financial penalty. Not all of the suggested monetary terms would be appropriate or desirable in all cases. In addition to, or instead of, monetary terms, an agreement may include obligations to improve corporate governance and compliance and to provide for implementation of the agreement’s terms to be monitored, the cost of which would fall on the organisation, or indeed anything else which the parties can agree is an appropriate response to the alleged wrongdoing. It will be for the parties to negotiate, and ultimately for the courts to approve, a range of terms that are fair, reasonable and proportionate. While a financial penalty is very likely to be imposed in the majority of cases, we do not consider it necessary or desirable to require a financial penalty to be agreed and imposed in every case.

Amendment 28 concerns the level of financial penalty payable under the terms of a deferred prosecution agreement. Where such terms are to be included in an agreement, the sum payable should be broadly based on the fine that would have been imposed for the alleged offence on a conviction following a guilty plea. Where available, the court would follow relevant offence-specific sentencing guidelines, as well as guidelines on general principles of sentencing, including the reductions in sentence for a guilty plea, as the noble Lord, Lord Beecham, pointed out. When considering a financial penalty term of a DPA, it is expected that both the parties and the court would have regard to the same guidelines, as well as the balance of other monetary terms of the DPA. This is to ensure as far as possible that any financial penalty under a deferred prosecution agreement would be broadly comparable to a fine likely to be imposed by a court following a guilty plea.

The effect of Amendment 28 would be to place a cap on the maximum financial penalty that could be negotiated under a deferred prosecution agreement. Given that it will be impossible in any particular case to estimate accurately the likely fine the court would impose, it would in practice be undesirable to seek to limit the freedom of the parties to negotiate the amount of a penalty in this way. In any event, the amount arrived at will have to be agreed by both parties before seeking the court’s approval and the court would need to be satisfied that any financial penalty is fair, reasonable and proportionate, such that we do not think specific further provision is necessary. But as I said to the noble and learned Lord, Lord Goldsmith, I will look at both of his amendments.

Amendment 29 relates to the provisions we have made enabling the parties to negotiate a term specifying the consequences of non-compliance with a deferred prosecution agreement. We have included this provision as a way of dealing with non-compliance capable of being objectively determined by the parties, for example, where the organisation has made a late penalty payment. The aim is for the parties to remedy the non-compliance without recourse to the court, for example, by way of punitive interest in relation to the late payment. Such a term would be negotiated alongside all of the other terms of an agreement and approved by the judge. We do not envisage that such a term will be appropriate in all cases. Whether or not a deferred prosecution agreement includes such a term, paragraph 9 provides a formal procedure for breach and non-compliance which will be the most appropriate way for most instances of non-compliance to be dealt with.

I hope that the Committee will agree that it is desirable to ensure that agreements are tailored to individual cases, with judicial scrutiny of all of the proposed terms to ensure that they are fair, reasonable and proportionate, and that it would be inappropriate to make any of the terms of deferred prosecution agreements mandatory in all cases. And as regards setting the amount of a financial penalty term and inclusion of a consequences term, I trust that my explanation has reassured noble Lords. But I shall read in Hansard what the noble and learned Lord, Lord Goldsmith, has said, and perhaps he will look at what I have said. We can see how they match up or where we should move.

[Lord Goldsmith]

Perhaps I may say a sentence because it may help the noble Lord and his officials. I had in mind in Amendment 29 that the DPA should say, “And if you fail to comply with this, then the prosecution can take place and you may be proceeded against”. That is the sort of consequence I am thinking of. I understand that the noble Lord is talking about something else. So with that expansion of my meaning, I am grateful that it will be looked at again.

[Lord McNally]

That is extremely helpful. With my advisers, I will look at the points that the noble and learned Lord has made. We do not go behind the Chair in this House, but he knows what I mean. I shall see if we can match up. I have found his remarks very helpful.

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[Lord Goldsmith]

I have a short but important point to make on Amendment 31 which stands in my name. As it stands, paragraph 5(2) requires that there should be an expiry date in any DPA but gives no guidance as to what its length should be. There needs to be some end point. This should not hang on for ever—in any event, it is unlikely that it would do so—but it is difficult to specify what that length should be. It could be different depending on the circumstances. The point of my amendment is simply to say that some consideration should be given to how one determines the length of the DPA. The best way of trying to get some guidance about that seemed to be to suggest that it should be included in the proposed code. There may be other ways to do it. I am completely open to what the mechanism is. My concern is that it is undesirable to leave it as it stands with apparently infinite or perpetual DPAs in existence.

[Lord Beecham]

My Lords, I certainly endorse my noble and learned friend’s remarks and support his amendment. I also support Amendment 32 standing in the name of the noble Baroness, Lady Hamwee. I shall speak to Amendments 31A and 31B, which again would provide effectively parliamentary oversight and approval of the code of practice to be drawn up by the Director of Public Prosecutions and the director of the Serious Fraud Office.

In his letter to me that other noble Lords may have seen, the noble Lord, Lord McNally, indicated that of course the Government believe in,

“the fundamental principle of prosecutorial independence”.

We certainly affirm that. The Minister went on to say that it is therefore appropriate for the code to be issued by the DPP and the director of the Serious Fraud Office,

“rather than it being put on a statutory footing in regulations laid by a Government minister”.

In my judgment, prosecutorial independence merely applies to the way in which a case can proceed, whether it should proceed and the like, but not necessarily the framework.

This is a novel framework being established for this purpose and, I reiterate, it will need to command public support. I do not refer to the individuals currently holding those offices or necessarily to those previously holding them, but neither of those departments has, shall we say, an unblemished reputation among the public over a series of quite different matters over the years. I have every respect for the current holders of those offices. As it happens, they both seem to be doing a very good job but the history is somewhat difficult in both cases. After a consultation process, the holders of those offices would have effectively the final word without any real intervention or guidance by Parliament. That is inappropriate in the particular circumstances of this case. What I propose would not interfere with their prosecutorial discretion, but it would allow the public to have confidence that the framework being established, within which prosecutorial independence would be exercised and maintained, is one that has Parliament’s support. It would not simply be left to Parliament to debate, without being able to influence it, following consultation carried out under the provisions of the Bill. For what it is worth, I have the support of the noble and absent Lord, Lord Phillips. The noble Lord, Lord McNally, looks to the heavens in gratitude. I shall direct the noble Lord, Lord Phillips, to Hansard tomorrow. There is a serious point here and I ask the Government to reflect upon it.

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Moved by

[Lord Goldsmith]

33: Schedule 17, page 263, line 11, leave out paragraph 7

[Lord Goldsmith]

I will also speak to Amendments 34, 36, 37, 39 and 40, which are all in my name. This group covers three topics and I will deal with them shortly. Amendment 33 is really a probing amendment, relating to why there is a double court approval. I have previously talked about the importance of the court approval and nothing that I say now takes away from that. A court approval is important. I was looking forward to explaining to a packed Chamber how the Bill is structured. Sadly, we seem to have reached a moment when it is not as full as I was hoping.

[Baroness Smith of Basildon]

There is the quality.

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[Lord Goldsmith]

The quality, as my noble friend says, is however very high. The way the Bill is structured is that there are two court approvals. Under paragraph 7, there has to be a court approval before a DPA is entered into and then a court approval, described as a final hearing under paragraph 8, afterwards. My question is: why is it necessary to have both? I am really not clear what the advantages are because it is plain, under paragraph 8, that a DPA does not come into effect and cannot be entered into unless there is the court’s approval. Why does one need the prior approval under paragraph 7? I do not see the advantages; that is why it is a probing amendment.

I also see disadvantages. There are costs and court time, both of which are precious commodities—particularly for the ministry that the Ministers represent. I am concerned that it is also unnecessarily cumbersome. May it also distort the negotiating process? Might a defendant who is a potential agreer to a DPA say, “I know you want more, Mr Prosecutor, but let us go and ask the judge whether what I have offered so far is enough”. I am not very happy with that proposal. Above all, why is it necessary to have a double process? That is the question. Amendments 37 and 39 are consequential to that amendment.

The next point, which I imagine can be dealt with very quickly, is in Amendments 34 and 36. These amendments are designed to ensure that whatever process there is, whether it is preliminary or final, it is clear that the defendant is to be present when that takes place. I have little doubt that that is what is intended but I would like reassurance on it, and that there is not to be any form of ex parte application by the prosecutor to the court—something to which the defendant is not a party.

Amendment 40 raises a more substantial point. As it stands under the scheme of the Bill, when a DPA comes to an end certain things are to happen. Paragraph 11(8), to which this amendment applies, requires that at that stage there should be details of the compliance. It says that:

“Where proceedings are discontinued under sub-paragraph (1)”,

which I apprehend is when the DPA has come to an end,

“the prosecutor must publish … the fact that the proceedings have been discontinued, and … details of P’s compliance with the DPA”.

I am rather concerned about why that is necessary. It cannot be for the purpose of checking whether there has been compliance because that must be for the prosecutor to do. Indeed, if the public say, “We don’t like this compliance”, there is no procedure for the DPA somehow to come back into existence, so I do not see why it is necessary. If, to take a different case, a prison sentence is reduced for good behaviour, the behaviour that has led to the reduction is not published.

I am concerned for one reason in particular. If there is a lengthy DPA, and the company, which it seems it is simply going to be, has complied and done what was necessary, the publication of the details of its compliance—and I do not know how detailed that will be—would result in the whole thing being revived. That is a little against the spirit of the idea that you make an agreement, it is sanctioned by the court, you comply with its terms, and then your record does not get sullied again. I am concerned that the consequence of this may be to raise the matter again to the disadvantage of the defendant who has done all that was required of him or her. If it is necessary because there is a real point in publicising the details of compliance, that may be one thing, but because I cannot, at the moment, see the benefit of it in the scheme of the provision, I question its desirability. I look forward to hearing what whichever noble Lord responds will say about it. I beg to move.

[The Lord Speaker (Baroness D'Souza)]

I must advise your Lordships that if this amendment is agreed to, I cannot call Amendments 34 and 35 by reason of pre-emption.

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In light of the points that I have raised, I hope that the noble and learned Lord, Lord Goldsmith, will agree to withdraw his amendment.

[Lord Goldsmith]

My Lords, I am grateful to the noble Lord for that detailed reply. I want to study carefully in Hansard what he said, as I want to study what was said by him previously on other amendments and by the noble Lord, Lord McNally, and then decide what I would like to bring back on Report. Nevertheless, I am grateful for his reply, as I was grateful for the detailed letter that came from the noble Lord, Lord McNally, which dealt with questions that I raised on the previous occasion. Subject to that, and given the hour, I beg leave to withdraw the amendment.

Amendment 33 withdrawn.