My Lords, I should like to add just a few words in support of the amendment proposed by the noble Lord, Lord Butler of Brockwell, drawing attention to the phrase “knowingly or recklessly” which he emphasised in his short speech.
One should perhaps bear in mind that the prosecutor has to prove the case to the criminal standard—that is, to the standard of “beyond reasonable doubt”. At one time in my career, I was a prosecutor and I am aware of the significance of the burden of proof on the prosecutor in proving the offence to that standard. So the words “knowingly and recklessly” set a very significant standard that requires looking into the mind of the alleged offender. It would surely be unthinkable for a prosecutor to bring a case before a single judge or a jury without convincing evidence that the standard could be met.
As for the very interesting question of who decides, I believe—the Minister will correct me if I am wrong—that the decision is made by the prosecutor, having regard to the anticipated length of sentence and the gravity of the offence. I would have thought that the structure of the proposed amendment is right: that there ought to be a choice between the two, because some offences could justify only a minor penalty, in which case the summary process would be appropriate, but there could be other, very serious ones where prosecution on indictment would be appropriate. However, the judgment would be that of the prosecutor, having regard to what the sentence would be likely to be at the end of the day.