§ 4.32 p.m.
§ Lord Williams of Mostyn
My Lords, I beg to move that this Bill be now read a second time.
I recognise that most of those who will speak tonight are my personal and professional friends and that they will feel unable to support the Bill. Even as regards those who do not have the indignity of being in that first category, I recognise that their motives are entirely honourable. It is not their motives I question but their conclusions.
It is fair to say that we have spent a substantial amount of time on this issue and I make no complaint about that. I hope that your Lordships will think me neither discourteous nor derelict in trying to keep my remarks reasonably economical tonight, bearing in mind the number wanting to speak.
The single issue here is: how do we deal with either way offences which can be tried either in the magistrates' court or the Crown Court? That is the issue. It is not Magna Carta; it is how we operate the Crown Court system in an efficient and appropriate way in modern circumstances.
Perhaps I may say by way of background that the right to an impartial trial in a reasonable period of time is one of the rights in the European convention. It is not a right that attaches only to defendants. I suggest that it is the right of the wider community that serious cases should be tried in the Crown Court with a jury within a reasonable period of time. The melancholy conclusion to which one is driven is that many cases go 962 to the Crown Court system which is a limited—I would say precious—resource when they ought not to go there at all.
The issue I would put to your Lordships is: how do we manage the system in the most appropriate, prudent and judicious way? We are therefore attending to the question: what is the proper process of decision by which that question is answered? This Bill, were it to have a successful Second Reading tonight—I think that that is a reasonable use of the subjunctive—will have the following consequence. It will give to the judiciary, whether magistrates or Crown Court judges, the power to decide whether either way cases should be tried in the Crown Court or the magistrates' court. That is to say, it will substitute the defendant's diktat with judicial discretion.
§ Lord Williams of Mostyn
My Lords, the noble Earl, Lord Onslow, says that that is clever. It was not intended to be; it was intended to be a purely factual description. Indeed, I shall paraphrase what the former Lord Chief Justice, Lord Bingham, said. I recognise that it is a paraphrase but I believe that it is a fair one. It was, "Should we entirely leave the decision to the defendant whose overwhelming motive may not be the securing of the interests of justice in the public community?"
§ Lord Tebbit
My Lords, I am grateful to the noble and learned Lord for giving way. What grated slightly with me—I am not sure whether it grated also with my noble friend Lord Onslow—was his use of the phrase "defence diktat", whereas most of us would have used the phrase "the right of the defence".
§ Lord Williams of Mostyn
My Lords, I take the noble Lord's point. My purpose in using that phrase was that the defendant has an absolute right to dictate. If one leaves the question to the judiciary, one has a judicial discretion imported. I take the noble Lord's point, but having done so I still believe that I put the opposition fairly and accurately between those two stances.
As I said earlier today and during our first lengthy debate, I recognise that honourable people can honourably disagree on this. I am trying to define the issue and others must come to their own informed conclusions about what their answer may be.
Perhaps it ought to be remembered that at present magistrates can and regularly do direct that an either way case should be tried in the Crown Court if they believe it is too serious for them to try. They could carry on doing that if the Bill were passed. But let us not forget that the defendant can chose a jury trial even in very minor circumstances. It is not an overstatement to say that it is not in every case that an allegation of shoplifting a jelly or a banana from Tesco ought to occupy the scarce resource of trial by judge and jury.
The result is that at the moment a significant number of cases go to the Crown Court which objectively ought not to be held to justify that mode of 963 trial. Those cases—I make no apology for saying this—hold up other cases which are rightly in the superior forum. I do not apologise for what I shall say next, although I know that it sometimes causes distress. If cases which are inappropriate go to the Crown Court, the inevitable consequence is bound to he that cases which ought to be tried efficiently and promptly cannot be so tried.
I shall give some examples. A women who complains that she has been raped is doubly traumatised—understandably, I believe—if she has to wait many, many months before the trial occurs. A complainant in a child abuse case is similarly harmed. The evidence is overwhelming that many child complainants believe that the system has damaged them more than the offence and that they would not complain in future.
In any event, apart from delay damaging complainants, it has a number of deficiencies from the point of view of the general community. I believe that there is a social and moral imperative that crime should he speedily investigated and promptly tried. When unworthy and unacceptable delay creeps in, that imperative becomes dissipated. The victims of crime rightly cry out that their voice is not sufficiently attended to, that their cases are taking a long time and that if the process of rebuilding their lives which have been grossly damaged is put off, that is a further injustice to them. I believe that they are right.
Witnesses' recollections fade and the quality of the evidence is diminished. The sentencing judge has a much more difficult task to carry out if a significant period of time has elapsed between the commission of the offence and the finding of guilt and ultimate sentence. I do not believe that any of the propositions that I put forward is unreasonable. That was why I began by suggesting to your Lordships that this is not simply an oppressive attempt to take away the rights of individuals in this country—far from it. We seek to balance proportionately different interests, not every one of which may be triumphant on every single occasion.
§ The Earl of Onslow
My Lords, the noble and learned Lord said that the victim of rape or child abuse would face a postponed trial. Can the noble and learned Lord quantify it, or is it just a guess?
§ Lord Williams of Mostyn
My Lords, it is not a guess. I do not mean to put it disagreeably, but it is the product of many years' prosecuting and defending mainly in the Crown Court. I know perfectly well, as does every practitioner in the Crown Court, that time is regularly wasted. I give a statistic which may be of assistance. Sixty per cent of those who elect trial by jury plead guilty when they get to the Crown Court. I do not need to be a statistician to draw the conclusions which I offer to the noble Earl, Lord Onslow. These are facts.
I understand as well as anyone the importance of trial by jury. It is the appropriate remedy in serious instances where the state and the citizen's interests collide. Trial by jury is not suitable for election by the 964 defendant in every either way case. I suggest that cases which involve allegations of serious crime should not be held up by cases which, judged objectively, do not merit a Crown Court trial.
How is that objective judgment to be made? I repeat what I said to your Lordships earlier. I was not willing in any circumstance to allow the decision to rest only with the magistrates. This Bill provides for an automatic and immediate right of appeal by a potentially aggrieved defendant who wishes to be tried by the Crown Court. The magistrates decide and there is an automatic right of appeal.
I do not deal with questions of cash but resource, which is a much more subtle concept. The resource of the Crown Court is limited and should be properly directed. I suggest that if we wish to have a structure of criminal justice that has something to do not only with crime but also with justice and that it become systematic, we should give these proposals an open-minded reception. That is all that I ask; I cannot seek anything more.
There are many offences—on the previous occasion the noble and learned Lord, Lord Bingham, gave the example of indecent exposure—which are not capable of election. The noble and learned Lord gave the graphic illustration of the bank manager who was charged with indecent exposure and had no right to elect trial at the Crown Court. It is not possible for the school teacher who is accused of common assault on one of her charges to elect trial by jury. Your Lordships will be well aware of the recent example in South Wales. A nursery nurse who is prosecuted for cruelty to children cannot elect trial by jury. Parliament has decided over the years that those offences can be tried only by magistrates. I do not introduce a note of levity. Today, two Bishops are present. Their lives and vocations would be wholly destroyed beyond redemption in this world if they were convicted of kerb crawling. There is no right to elect trial by jury in such a case.
Whatever may be the conclusion of noble Lords this evening—I have an unhappy presupposition that it may be adverse to me—this is not a simple point; nor should it be swept away simply by gathering around ancient totemic beliefs and thinking that they are a legitimate response to considered argument.
§ Lord Campbell of Alloway
My Lords, I agree with the noble and learned Lord that this is a difficult point. I sympathise with much of what he said about resources. Does the noble and learned Lord agree, however, that none of the examples that he has just given involves dishonesty?
§ Lord Williams of Mostyn
My Lords, that is entirely my point. The totem has emerged from under the stone where it formerly slept. I cited the right reverend Prelates by way of an example. The consequences of such a case for them would be devastating and infinitely worse than for a person of clean character who had stolen a minor item from Tesco or had convictions as long as one's leg (as one puts it) but 965 could still elect trial by jury. I am most grateful once more to my noble colleague. By his question he has reinforced my argument.
Furthermore, quite regularly Parliament has entirely removed the right to trial by jury simply by reclassification. I give some examples. Common assault can be tried only by magistrates. Criminal damage to the value of not more than £5,000 cannot be tried automatically at the defendant's election. Other examples include taking a vehicle without consent and matters relating to vehicle road tax, which are offences of dishonesty, and driving a vehicle with excess alcohol. I give the latter example again because some noble Lords may have had the misfortune not to hear these arguments before. If one is a police driver, fireman, ambulance driver or haulier and one is convicted of driving with excess alcohol, the consequences are irrecoverable. The police driver will lose his work, his substantial pension and, if he occupies a police house, his home. That was why I ventured to say earlier that we cannot approach this in a similar way to a patient whose knee is struck by the doctor with a rubber hammer.
§ Lord Mishcon
My Lords, will my noble and learned friend forgive an attack from behind? Does he agree that his argument, which is always put forward so lucidly and eloquently, is that we should look at offences which do not give the accused this right and give them that right rather than remove a right which already exists?
§ Lord Williams of Mostyn
My Lords, attacks from behind are always the most agreeable, particularly from my noble friend Lord Mishcon. I do not agree. The overwhelming majority of criminal cases in this country—about 1.8 million (more than 95 per cent)— are tried by the magistrates. There is a school of thought, with which I do not agree, that magistrates are not capable of providing justice for their fellow citizens. If that is the thrust of the argument, let us do away with the lay magistracy. If anyone behind me or opposite me asks me how I should like to be tried if my case was coming up, my response would be that if I was run over on the pavement I should much prefer my civil case to be tried by a judge and jury, but that is not allowed. I might prefer it, but not necessarily for entirely legitimate purposes.
I put this point to your Lordships. If the resource is scarce, how do we prudently manage it? The prudent management with a fair balance of interest is to say to the defendant, "Of course you may make your choice, but your choice will not be determinative. The case will go to the magistrates and there will be an automatic right of appeal on the merits to the Crown Court". In exactly the same way—I put this point to your Lordships in the same general context—if I apply for bail, the magistrate may refuse me and I can go immediately to the Crown Court. The decision on bail, which is not to be entrusted to the magistrates, is far more fundamental in many instances than the decision on where the case should be tried. After all, if I am 966 refused bail, I may lose my livelihood; I may lose my family or my home. One of the pollutants of our criminal justice system—I have no doubt in saying it and I do not exaggerate for a second—is delay.
§ Lord Hutchinson of Lullington
My Lords, perhaps I may interrupt the noble and learned Lord once more. I apologise for doing so. He has been wasting a lot of time on this matter and is not meeting the point. All the offences to which he has referred have been considered in Parliament and have been passed by Parliament as being suitable for summary trial. The objection here is that one magistrate, or possibly two or three magistrates, will make the decision whether certain offences—no fewer than 700 of them—will be tried summarily or on indictment. That is a totally different situation.
§ Lord Williams of Mostyn
My Lords, it is not. The noble Lord objects to the magistrates having the power initially—subject to automatic appeal; let that not be forgotten—to come to decisions about venue. It is venue alone, not guilt or not guilt. What can the magistrates do at the moment? They can sentence their fellow citizens to imprisonment for six months on any one charge with, in some circumstances, a total sentencing power of 12 months. They are entrusted with that. They are entrusted with decisions about bail. I return to my point. If you can trust the magistrates to determine guilt or not guilt, entrust them with the power to sentence their fellow citizens to six months' imprisonment for a wide spectrum of offences and entrust them with decisions on bail, why then is it wrong to entrust to them at first instance only, subject to automatic appeal, on the question of venue? I have never myself encountered a satisfactory answer to that.
I quote what the then Lord Advocate said during the debate in January:What is essential in any system is that the various interests are balanced; that society's interests, as represented by victims and witnesses, are balanced against the interests of the accused. But what must be ensured is that the accused is protected from the effect of arbitrary decisions. Who better to perform such a task than an independent judiciary?".—[Official Report, 20/1/2000; col. 1287.]I revert to the point about which I know the noble Lord, Lord Hutchinson, feels very deeply. If Parliament passes the Bill it will itself be saying to the judges, "Here are your limits of discretion" and we do that constantly and regularly in every aspect of the criminal justice system.
The noble Lord says that I have been wasting time. I am sorry if I have, but I wanted to put those points to your Lordships and show the respect that I have for people who disagree with me. There are powerful arguments to be mounted on this side of the argument even if occasionally they seem to be rather solitary.
We altered the first Bill by taking away the provisions relating to reputation and livelihood. Some of us took the view that the first Bill ought to have included those, but there was considerable criticism in your Lordships' House. We therefore listened, which is a common practice these days, and we responded. I say no more.
967 Criteria will be set down. If the magistrates think that the offence is beyond their sentencing powers they will direct the case to the Crown Court for trial. If there are features which make it more appropriate—there are many of them which I am perfectly able to develop if any of your Lordships would like—to commit the case to the Crown Court, they will do so. There are some cases where it is better that a jury of 12 should decide rather than three magistrates or a single stipendiary. We have built in the safeguard—I hope that this will come as an additional assurance to your Lordships—that any appeal, which is automatic, as a right, will be heard by a senior Crown Court judge; that is, by the resident Crown Court judge at any centre or his nominated deputy.
During the debate on the previous Bill questions were asked about racial impact. The better evidence, I suggest, and I repeat, is that in both magistrates' courts and Crown Courts a black defendant is about six to seven percentage points less likely to be convicted than a white defendant. I know that on previous occasions it was said that perception is important. I can only repeat that perception is important, but it can never be definitive.
I hope, therefore, that I have deployed the arguments as reasonably as I may. I do not want to speak at greater length in the confident belief that others may follow that example. I commend the Bill to the House.
Moved, That the Bill be now read a second time.—(Lord Williams of Mostyn.)
§ 4.55 p.m.
§ Lord Cope of Berkeley
rose to move, as an amendment to the Motion that the Bill be now read a second time, to leave out ("now") and at end to insert ("this day six months").
The noble Lord said: My Lords, for the benefit of those who follow our procedures from outside, I should perhaps make clear, which the amendment does not in a direct form, that the effect of the amendment, if carried, would be to kill the Bill.
As the noble and learned Lord the Attorney-General said, we discussed the principles of the Bill fairly thoroughly in December and again in January. Your Lordships then decisively voted it down. Therefore, I do not think that I need repeat in too much detail the arguments which persuaded us against that measure. The new Bill, the Criminal Justice (Mode of Trial) (No. 2) Bill, has been altered in some respects in response to the barrage of criticism expressed at that time, but the alterations have in fact turned away some of the previous supporters of the Bill. In some respects the situation has developed in the meanwhile.
In short, however, the jury system is unchallenged for serious crimes and important cases. Similarly, the system of summary justice by magistrates for the majority of lesser cases is not affected by the Bill. The Bill, as the Attorney-General made clear, concerns the intermediate cases, the so-called "either way" cases. The ability of magistrates to refer a case to the Crown 968 Court on their own initiative is affected a little by the Bill. But, as I shall explain, the big issue is the ability of the accused to insist on a Crown Court trial. We think that that is a valuable safeguard in the system and has widespread support. It was inserted in 1855, not by accident, as the Home Secretary recently suggested, but as a deliberate safeguard when trial by jury became no longer automatic in what became either way cases. That has been the position since then.
Of course I recognise, as the Attorney-General explained in his speech, that the categories into which cases fall have been altered from time to time by Parliament. Like the noble Lord, Lord Mishcon, I certainly do not rule out discussion of those categories in the future and moving or redefining offences in either direction as far as concerns those categories. But that is not what the Government are asking for here. We believe that to end the option for the defence in all these either way cases is to weaken support for the criminal justice system.
In particular, it has become clearer than ever since our previous debates that there is strong support for jury trial among our fellow citizens in the ethnic minorities. I shall not dwell on that point because I have reason to believe that others may spell it out in more detail and with more authority. However, unless compelling reasons are put forward to do so, it is wrong to weaken support for the criminal justice system. At a time when all authority is being challenged as never before, it is wrong to replace a longstanding citizen's option with a decision on the type of trial by judicial authority—magistrates and judges on appeal.
Noble Lords will note that I said, "type of trial". This is not a question only of whether magistrates or a jury decide guilt or innocence and whether magistrates or a judge conduct the trial and decide on the sentence. A trial on indictment in the Crown Court requires far greater advance disclosure of evidence and the relevant facts and all sides need to prepare their cases more thoroughly. That is why some defendants plead guilty before the Crown Court, having seen the full weight of evidence being ranged against them which they would not have had to face were they to appear before the magistrates. That is also why, not infrequently, the prosecution reduces the charges at the Crown Court stage, also leading to changed pleas. Those two factors sometimes have been ignored by Ministers and were not mentioned specifically by the noble and learned Lord the Attorney-General—no doubt in the interests of brevity—when he argued that plea changes demonstrate how defendants use the option to delay matters in spite of the greater sentences they then receive for wasting time if they are subsequently found guilty.
I stated that it would be wrong to weaken the acceptability of the criminal justice system unless there were compelling reasons so to do. The Government have suggested that delay and costs—or resources, as the noble and learned Lord put it—are such reasons. However, they are of course building potential delay into the new system. An accused who wants to cause delay under the new system can first argue with the 969 magistrates for a jury trial. As we have just been told, if he is unsuccessful before the magistrates he can then appeal to the judge for a jury trial. If that is refused, the third step is for him to be tried by magistrates. If the accused is found guilty in the magistrates' court, he can take the fourth step of using his automatic right of appeal to a judge at the Crown Court where all the witnesses and victims will need again to give their evidence. This last right is not dependent on a Court of Appeal ruling that a conviction is unsafe, as happens in the higher courts. It is an absolute right. For that reason, there is plenty of scope for delay in the new system.
As regards costs, some of the predicted savings have been based on the assumption that delays will be reduced, although it is doubtful how extensive that reduction will be. Much of the highest anticipated saving—£83.5 million out of £128 million in total, according to the new figures—is expected to be made in the Prison Service, not in the courts at all. It is thought that magistrates will give lower sentences when they try intermediate cases that would otherwise have gone before a judge and jury than is generally the case with judges. The expectation is that 5,000 convicted offenders will serve an average of four months' less imprisonment, and will thus reduce prison costs. I am not sure how that squares with a policy of being tough on crime and I do not believe that it will be in any way an automatic process. The fact that on average magistrates confer shorter sentences at present does not mean, when they come to try more serious cases as a result of the Bill coming into law, that they will continue so to do.
I have doubts about the extent to which such savings will be realised. Indeed I doubt whether any savings at all will show up in the Government's accounts. I do not feel that such speculative reasons, along with the calculations that have flowed from those speculations, are compelling enough to justify damaging public confidence in the criminal justice system in this way.
Perhaps I may turn to the changes that have been made in this Bill in comparison with its predecessor, which we discussed some months ago. The most important changes concern the criteria to be used by magistrates and by judges on appeal when deciding which cases should be sent to the Crown Court. Many people, including myself, have asked how magistrates are supposed to weigh in the balance the threat to the reputation or livelihood of the accused arising from the various different types of trial. In response, the Government simply removed those criteria altogether. The new Bill specifically forbids magistrates to consider the circumstances of the accused and limits them to looking only at the offence. That misses the point that we made. The fact that it is difficult for a magistrate to weigh these matters in the balance does not mean that they are not important to the decision or to the accused. Of course they are important, but only the accused can truly judge them.
Similarly, criticism was aimed at the original Bill because a different type of trial was to be given to someone who had previous convictions. Almost every 970 example of damaging time-wasting behaviour cited by Ministers concerned old lags with long strings of convictions. However, magistrates will now not be told of any previous convictions when deciding on a request for venue, so old lags, if they wish, will be able to utilise the new mechanisms to spin out matters.
However, the most crucial change in the criteria for deciding venue is the omission from the new Bill of the words "any other relevant circumstances". That is a change not only from the earlier Bill, but also one from the present position. Like its predecessors, the 1980 Act allowed the magistrates, when reaching their decisions concerning the trial venue, to take into account any other relevant circumstances and to use their discretion. This Bill does not make that provision.
The government estimate of the effect of changing the criteria in these ways is that 2,000 defendants who would have been sent by magistrates for jury trial under the terms of the old Bill will now be tried in the magistrates' court. I am not absolutely sure how the Government arrived at the figure, but they stated that 12,000 defendants who would have opted for jury trials would have received summary trials under the terms of the original Bill. They now say that 14,000 defendants will receive summary trials under this Bill; that is, 2,000 more defendants pleading "not guilty" right through to the Crown Court will be denied a jury trial under the terms of the new Bill because their personal circumstances or other relevant considerations cannot be taken into account.
It has been pointed out that these new and much more restrictive criteria for decisions on the type of trial mean that the Bill does not now implement the recommendations of the Royal Commission. In our previous debates, the noble and learned Lord the Attorney-General relied heavily—as, during the early stages, did Ministers in another place—on the recommendations of the Royal Commission. However, it has been made clear by members of the commission that this new Bill does not carry out their recommendations.
I believe that that may also mean that the support of the noble and learned Lord, Lord Bingham, for the Bill is now slightly in question—I put it rather diffidently because I certainly do not wish in any way to misquote the noble and learned Lord. However, we can see from published correspondence between him and the Home Secretary that he has some doubts about it. I should add that, since the previous discussions on the Bill, the serving Law Lords have now taken a vow of silence on matters of party political controversy. I am not quite sure if that covers today's proceedings. In any case, we shall have some authoritative lawyers to advise us in addition to the noble and learned Lord the Attorney-General, who has already done so.
In other respects, too, discussion on the Bill is affected by events since the previous Bill. During the summer we read in several newspapers—I emphasise "several" because it is often a sign of a deliberate leak when a news item appears in several newspapers at once—that the Government wanted to abolish lay 971 magistrates and replace them all with stipendiary magistrates. The noble and learned Lord made a glancing reference to such a proposition in the course of his speech.
§ Lord Williams of Mostyn
My Lords, I should not like anyone to be under any misapprehension. I said nothing of the kind. I said that the mode of trial in the magistrates' court at the moment is three lay magistrates or one stipendiary. That is the present position. That is not a floated reform; that is what obtains at the moment.
§ Lord Cope of Berkeley
My Lords, I entirely understand that. I have no wish to misrepresent the noble and learned Lord the Attorney-General. I thought I heard him refer to at least the possibility—not to recommend or agree to the possibility—that some people might wish all magistrates to be stipendiary magistrates rather than lay magistrates. If I am mistaken I shall withdraw my remarks. We shall be able to read it in Hansard tomorrow.
In any case, that is what we read in the newspapers not so long ago. If that is planned it will have serious consequences for the Bill. The transfer of the decision on the type of trial to an authority in the form of lay magistrates will damage public confidence in the system; but if it were universally a transfer of the decision to junior judges, as it were—to stipendiary magistrates—that would increase the damage to public confidence in the system.
The other way in which matters have moved on since our previous discussions is that we are now very near to the publication of the report by Lord Justice Auld on the whole matter of criminal justice in the courts. It is due at the end of the year, in three months' time. At the very least, we should wait for this authoritative report. Apart from all the other arguments on both sides—which I accept can be discussed—this is a question of sensible government. The question of jury trials for either way offences is included in the remit of Sir Robin Auld and, whatever one thinks about the issues in the Bill, we should not legislate before we have seen all his recommendations and arguments and had the chance to weigh them up. Until then it is certainly wrong to risk damaging public confidence in the system.
If it helps the noble and learned Lord the Attorney-General, he need not say today that he will drop the proposal in the Bill; he need say only that he will wait and see what the Auld report says. He used to think that this whole proposal was "madness".
§ Lord Cope of Berkeley
Not far off, my Lords. "Madness" was the word he used when writing an article in The Times.
§ Lord Williams of Mostyn
My Lords, I know that the noble Lord, Lord Cope, is not a lawyer—but he soon will be one if he indulges in selective misquotation.
§ Lord Cope of Berkley
My Lords, being a politician, I am grateful for the indirect confirmation that lawyers indulge in selective misquotation more than politicians.
972 However, the noble and learned Lord the Attorney-General wrote an article in The Times about the previous discussions. He says of course that that was before there was a right of appeal to the court—although that was discussed at the time. I shall not press the noble and learned Lord too far on that. All I want him to say is that he will wait for the Auld report.
If he cannot manage even that, then please can we hear less about the "listening Government". I realise that the refrain has now changed—I beg your pardon, the "message" has now changed—to, "Well, we have listened but we do not agree with you", but in the case of this Bill they are not willing to wait and hear the point of view of someone whom they asked for an expert opinion. There are times when it is necessary to patch a building without waiting for the surveyor's report—but this is not such a case and the surveyor's report will be with us very soon.
The basic argument for retaining the system is the acceptability of the criminal justice system. These days every kind of authority is diminished. Judges, bishops, Ministers, the police, schoolteachers, civil servants, politicians—where it was never very high in the first place—are all subject to much sharper criticism and are given much less respect for their service to our national life. In these circumstances we should not lower the acceptability of our criminal justice system for the sake of speculative possible savings.
Finally, the right honourable gentleman the Home Secretary recently said on television that it would be "profoundly undemocratic" for this House to defeat this Bill. At the time of the last election the Labour Party was firmly on record in opposition to proposals of this kind. In so far as that entered into the calculation of anyone's vote at the last general election—I do not argue that it did so very much—this Government were elected to oppose this Bill or proposals very like it.
The Home Secretary's idea of democracy is that because he has changed his mind and used the Government's temporary majority to force this through another place—against formidable opposition from all sides, including his own, and under a guillotine—this House must rubber stamp it. That is constitutional nonsense—and dangerous constitutional nonsense. This House is now composed according to the formula chosen by the Prime Minister and agreed by both Houses. We have not only the legitimate right but the duty to make up our own minds on this issue.
I recognise that some noble Lords opposite who do not feel strongly on the issue may be concerned that if they do not support the Home Secretary they will incur the wrath of the noble Lord the Government Chief Whip with his well-known terrier-like qualities. Confidentially I can reassure anyone in that frame of mind: I believe that the Chief Whip will be secretly delighted if we win today. He knows, as I do, that if the Bill is given a Second Reading today the Committee and later stages will be long and difficult, particularly as discussion was guillotined in another place. He also knows that there are five other Bills from the Home 973 Office alone now before this House, either awaiting Committee stage or part-way through Committee stage—plus, no doubt, there will be some Commons amendments to other Bills to consider—all of which he is supposed to deliver in the last few days and nights of this Session.
That is in addition to the three Home Office Bills which completed their passage and became law in July. Judging by his recent record, the Home Secretary seems to be mad keen on Bills. It is no wonder that they are so badly drafted. They may be rubber stamped by the temporary majority in another place but in this House, where no party has a majority and where independence of mind is respected, we must each decide for ourselves. This Bill is wrong in principle and in detail. It would damage public confidence in the criminal justice system and we should throw it out. I beg to move.
Moved, as an amendment to the Motion that the Bill be now read a second time, to leave out ("now") and at end to insert ("this day six months").—(Lord Cope of Berkeley.)
§ 5.19 p.m.
§ Lord Thomas of Gresford
My Lords, the Home Secretary, in his mad keenness to reintroduce the Bill in this form, said that it was part of the Government's programme to modernise the criminal justice system and to improve public confidence in it. It was noticeable that the Home Secretary did not have the confidence of his Back-Benchers in the other place. The government majority was reduced to 83. It was the second biggest rebellion that has taken place under this Government: 23 Labour Back-Benchers in the House of Commons voted against it, 90 abstained, and the Bill was carried by a combination of the "payroll" vote and 30 Scottish MPs for whom these provisions cannot possibly have any interest. Not a single Government Back-Bencher spoke in support of the Bill either on Report or at Third Reading. It was passed, as the noble Lord, Lord Cope, said, only by reason of a guillotine which curtailed the discussions. This is not a popular Bill.
I should like to develop the theme referred to by the noble Lord, Lord Cope, during the course of his speech, and look more deeply into the question of public confidence. I do so with obvious enthusiastic support from the Government Front Bench!
There is no doubt that confidence is the crucial factor which ensures that the criminal justice system works at all. It is not simply that people who are arrested for crime think that they will have a fair trial. Ninety-five per cent of the population rightly suppose that they will never find themselves in the dock, either in the magistrates' court or the Crown Court. But the detection of crime requires public co-operation and participation. The police cannot do their job without the support of people who come forward as independent witnesses to give evidence. Defendants also may not be able to rebut a prosecution case unless they have the support of witnesses who come from the 974 public. There is no reward for being a witness. It is not fun. People do their public duty and participate in the criminal justice system because they think it is fair. It follows that every time there is a miscarriage of justice the effects on public confidence are far-reaching and have an effect on the detection and punishment of crime.
Miscarriages of justice occur not simply in the widely reported Court of Appeal decisions where expert evidence is found to be flawed, where there has not been proper disclosure, or where police methods have been questionable. They occur on a much more mundane level, every day, where a man or woman who has made a mistake finds that a court will infer dishonest motives and intentions, or maybe where an eyewitness imputes the action of one person to another and there is a misidentification.
The noble and learned Lord the Attorney-General has referred to the case of someone who is charged with shoplifting jelly from the supermarket as though it were totally trivial. I recall a case in which a friend of mine, after a rugby dinner, walked out of a public house carrying a glass of whisky, which he proceeded to consume, was charged with theft of the glass, which was valued at half-a-crown, and was convicted in a magistrates' court. That had a profound effect on him and on his standing in the community from which he came.
Whether the inference that is to be drawn from a person's conduct is a safe inference depends upon the experience of the person who makes that assessment. In judging the reactions of a youngster or of a confused and elderly person, what they say or what they do, the input of a person of a similar generation with a not dissimilar background is very important. The essential strength of a jury is that there is the collective experience of 12 people drawn by lot from the community who come together to discuss and analyse the evidence that they have heard in a case and to apply their common sense and their shared experiences to the issues that arise—issues which in each-way cases may be extremely important to the individual who is charged with the offence.
I do not believe for one moment that the public lack confidence in the fairness and impartiality of a jury. I agree with the view recently expressed by Professor Michael Zander in the New Law Journal, that,There is a profound belief in jury trial as the fairest system for serious criminal cases".If the Government want to modernise the jury, let them rename it in their own new Labour speak as a "trial focus group" or something of that sort, but let them keep the substance for what it is—the collective and shared experience of 12 people drawn from the community.
The problem is that governments across the world are not comfortable with juries. Juries are a highly democratic institution. In many of our former colonies they were the first institution that we had left behind to be abolished. Singapore is a case in point.
The problem that a jury poses to government is that government cannot control it. It comes together for one case, it makes it decision and departs. It is not 975 answerable to the Lord Chancellor's Department. Its decision on the facts cannot be challenged. If a government wish to pass a repressive law, juries can and will ignore it. Indeed, there have been significant advances in human rights both in this country and elsewhere in the world brought about by the perverse verdicts of juries. If prosecutions appear to be oppressive or misguided, a jury will acquit. In recent years in this country, prosecutions for obscenity, for breaches of state secrecy, and recently for damage to government-supported GM crop experimentation have failed. A common assault is now triable only summarily. Can one really believe that a jury would have convicted the headmistress from South Wales who was recently sentenced to prison by a stipendiary magistrate? Would that case even have been brought by the CPS had it thought that it would have to justify the prosecution, not in front of the stipendiary magistrate but in front of a jury of 12 people of common sense?
The attitudes of juries are not necessarily progressive or liberal. It is my belief, for example, that the fall in the conviction rate in rape cases derives from a deep suspicion of allegations of marital rape or date rape—and the rate of convictions in that type of rape case will increase not by tinkering about with the law, as we have heard suggested by the Government, but only when public attitudes on these questions become more progressive. So I do not claim that a jury is an extension of the Liberal Democratic Party! It is not. It represents a broad cross-section of opinion throughout this country.
The free choice of venue in an each way case may be absolutely critical. Talking with colleagues recently, I was reminded that it was the diktat—the word used by the noble and learned Lord the Attorney-General—of miners during the miners' strike to be tried by juries in such cases. Equally, it was the diktat of police officers to be tried in a magistrates' court. I do not need to develop the reasons why those choices were made. It would be ironic indeed if noble Lords opposite who are veterans of that struggle—such as the noble Lord, Lord Hardy of Wath, who spoke so movingly about it immediately before this debate—were to troop through the Government Lobby on this Bill, which would have denied to the miners the opportunity of being tried by people from their community.
Because juries exist as a legitimate and constitutional check on excessive legislative power and can throw out cases where there is an unjust law or an unjust prosecution, it is tempting for government of any colour—particularly for the present Government, who until recently had an excessively good opinion of themselves—to try to interfere.
On Second Reading in another place, Mr Charles Clarke, the Minister of State, said that,none of our case rests on the cost savings that may arise from the Bill"—so they have thrown that argument away—it derives entirely from the need to create a more transparent, clear and fair criminal justice system. That is why the Bill is before us, and that is its intention"".—[Official Report. Commons, 7/3/00: col. 965.]976 If one analyses and examines what the Minister said, one has to ask, where is the lack of transparency in the jury trial? Here is a well-developed system of disclosure both for the prosecution and the defence cases. All the proceedings are in public. Submissions on the law are heard and ruled on in public, even though the jury may be absent. But are magistrates' courts transparent? The justices retire and take advice in their retiring room from their clerk. They give no reasons. Indeed, not even stipendiaries are required to give reasons for the decisions that they reach. Where is the opaqueness? Where is there a lack of transparency? It is certainly not with the jury trial.
The greatest lack of transparency—
§ Lord Donaldson of Lymington
My Lords, is the noble Lord correct in saying that magistrates' clerks advise them in chambers? Even when I was on the Bench, I understood that the law had been changed, thereby requiring them to advise in open court.
§ Lord Thomas of Gresford
My Lords, I have taken advice on this matter. I understand that it still happens, although the recommendation is that it should not happen.
The greatest lack of transparency in the criminal justice system is in the appointment of magistrates and judges. It is in the hands of the Government, without any independent input. The Lord Chancellor consults widely but in secret. He is a significant political figure. There is no route up the judicial ladder save through him. No one would pretend that the judiciary at any level, whether in the magistrates' court, on the circuit bench, in the High Court or beyond, is representative of the general community in age, in gender, in ethnic background or in educational background. It is not representative: juries are.
Despite the total control over appointments, it is rather strange that this Government do not trust those concerned to do what is right. They have introduced mandatory life sentences: judges are required to pass sentences that they may well believe to be contrary to the justice of the particular case. Unlike juries, they cannot cock a snook at repressive legislation.
In the rush for "modernisation", it is easy to denigrate history and tradition. I believe we had a prime example from the noble and learned Lord the Attorney-General when he referred to "ancient totemic beliefs". He conjured up the picture for us of a totem pole underneath a stone, crawling out from under it. I was rather confused by that. But the temper of this country, its love of liberty, its desire for fair play—indeed, the actual spirit of this country—both fashioned and, in turn, was nurtured by the common law. When the jury in Bushell's case in 1670 refused to convict William Penn of preaching to an unlawful assembly as the Crown demanded (they were locked up without food for two nights), they were released by the Chief Justice of that time and their right to be free of government influence and punishment was then established.
977 Going back in history, the noble and learned Lord the Attorney-General said that this is not about Magna Carta. The right to be tried by one's peers—the pares, the equals—was an important part of the Great Charter of Liberties, Magna Carta, and was confirmed on a number o f occasions, notably on 3rd May 1253 in Westminster Hall. At that time, the Archbishop of Canterbury and other bishops apparelled in pontificals and with tapers burning, pronounced the Great Curse. They excommunicated, accursed and sequestered all those that by any craft or wiliness violated, broke or diminished the liberties contained in the Great Charter, together with all that secretly, openly by deed, word or counsel, do make statutes or observe them being made against the said liberties. So that is exactly what the Government are doing now.
Not every country in this world shares the temper that we enjoy—the liberal values. For example, in China there are 4,000 years of a tradition of deference to authority. I can tell your Lordships that a Hong Kong jury is a tougher proposition for a defence counsel than an Old Bailey jury.
In my view, this Bill runs against the grain of this country. Our arguments against the absurd claims for costs savings that were made as regards the last Bill have been accepted and are no longer relied on. The attempt to introduce a two-tier system into the Bill about which we complained last time has been abandoned. The argument that we heard today from the Attorney-General was put forward on the basis of delay. He talked about the prudent management of resources. It is all this "new speak" that we, as recorders and part-time judges, see when we are sent charts and graphs to show how cases have been disposed of. The great word is "disposal". It is more important to dispose of cases than to ensure that justice has been done.
As the noble Lord, Lord Cope, said, this profound change was never a manifesto commitment. As he also pointed out, both the Home Secretary and the Attorney-General condemned similar proposals put forward under the previous government. It has been reintroduced in a fit of pique and with the threat of the Parliament Acts behind it. If the Government are seeking to wheel out the siege gun of the Parliament Acts, they should bear in mind that those Acts have been used only five times since 1911: the Government of Ireland Act 1914; the Welsh Church Act 1914; the Parliament Act 1949; the War Crimes Act 1991; and the European Parliamentary Elections Act 1999. Will this Government seriously use the Parliament Acts to introduce this legislation, contrary to the wishes of a significant proportion of their own Back-Benchers?
That threat was perhaps made in more arrogant times. As we were told today, we have a Government who listen:Is there anybody there? said the Pensioner,Knocking on the PM's door".I am sure that some noble Lords will recall that poem by Walter de la Mare. I think I came last in the school eisteddfod in 1954 in reciting it. The answer to that 978 question is, "Yes, only a host of phantom listeners!" That is what this Government are—phantom listeners. Noble Lords will remember that the traveller in that poem calls:Tell them I came, and no one answered,That I kept my word".The poem concludes:Never the least stir made the listeners,Though every word he spakeFell echoing through the shadowiness of the still houseFrom the one man left awake".When this House rejects the Bill again, I sincerely trust that Mr Straw will himself awake and realise the full implications for the ancient liberties and freedoms of the people of England and Wales that his measure represents.
§ 5.38 p.m.
§ Lord Ackner
My Lords, at the outset of my submissions to your Lordships perhaps I may respectfully, as always, raise two questions. The first question was referred to—certainly indirectly—by the noble Lord, Lord Cope. We were told recently by the Prime Minister that the Government are not arrogant or that, if they are, they have ceased to be so. We have been told that the Government do listen or that, if they have not listened adequately in the past, they will do so in the future.
My first question is, "Why don't you wait and listen to one of the most experienced Court of Appeal judges on criminal matters, Lord Justice Auld? You appointed him to consider, among other things, this very question. You imposed a time limit on him which has caused some people to refer to him as the poor man's Harry Woolf. Having imposed that time limit, you propose to ignore it". This non-arrogant, ever listening Government propose to invoke the Parliament Act to force through a decision with which he may disagree in a few months' time. My question is: why? What is the rush? What is the hurry?
For over 25 years we have considered this question. Why, all of a sudden, does it have to be forced through in this way? If that is not arrogance, I do not know what it is. If it is not a sign that the Government are deaf to reason, I do not know the reason.
My second question relates to a well-known interdepartmental committee presided over in 1975 by Lord Justice James. He was assisted by 12 other members of that committee. Some were ordinary practising lawyers. One was a chief magistrate. Another was a circuit judge. Lord Justice James and his committee took a great deal of time to consider that which he was asked to consider; namely, the distribution of criminal business between the Crown Court and the magistrates' courts. Like the Butler Committee, which dealt with the question of sentencing people suffering from mental disabilities, its recommendations have been forgotten or, perhaps worse, suppressed. I wonder why that is. I shall endeavour to indicate just how relevant that committee and its report were.
979 The interdepartmental committee reported in 1975. Paragraph 47 on page 23 of the committee's report states that the central issue of the inquiry was how the mode of trial of offences in the intermediate category—that is what we are dealing with—should be determined. It was pointed out that within the framework of the present system there were three possibilities as to who should decide whether an offence within the intermediate category should be tried summarily or by judge and jury on indictment: the prosecution, the court or the defendant.
The possibility of the court determining the forum attracted most attention and in order to stimulate discussion the committee suggested that the magistrates' court should decide the mode of trial of offences in the intermediate category. Under this scheme a person would have the right to make representations about the mode of trial but the final decision would rest with the court. If the magistrates' court decided on committal for trial, that decision would be final. But if it decided to try the case summarily, both parties would have a right of appeal to the Crown Court against that decision. How on earth does that differ from the issues raised before your Lordships?
Twenty-five years ago an interdepartmental, objective committee dealt with the matter, but the report has been suppressed. My question is: why? But before I ask that, I remind your Lordships of the conclusions of the committee. Your Lordships may consider that it is important.
Paragraph 59 of the interdepartmental committee's report needs to be set out in full. It reads as follows:Despite the weight of support for the proposed decision that mode of trial should be taken by the Magistrates' Court, we finally rejected it for several reasons. First, there would be an inherent difficulty in the Court having to decide the importance of the case. It would be difficult to lay down appropriate criteria for the Court to apply and there would be a danger of their being applied inconsistently by different Courts"—is that not the brief answer to the Mode of Trial (No. 2) Bill? —Secondly, the strong opposition of many of those who made representations and gave evidence upon this issue showed that the suggestion was unlikely to be acceptable to a wide sector of the public. Thirdly, a proposal to substitute the decision of the Magistrates for the defendant's right to elect Trial by Jury is unattractive in so far as it would lead to the Magistrates trying summarily a case … which the same Court, albeit differently constituted, had refused the defendant's request for Jury Trial. The Court would be placed in an invidious position if a defendant simply took objection to the Magistrates' Courts generally or to a Magistrate personally. Fourthly, a procedure involving the Hearing and Determination by the Magistrates of representations about the mode of trial, possibly a trial before different Justices and the establishment of an appellant process—which is the key, of course, to the refuge of the noble and learned Lord the Attorney-General from the madness of the Royal Commission's proposal, to which I shall refer later—would be a potential cause of delay in the disposal of business and would create an additional task for both Magistrates' Court and the Crown Court. Fifthly, although the majority of defendants consented to Summary Trial, both the OPCS Survey and the Sheffield Research show that defendants themselves attach great importance to the choice of forum at present vested in a defendant. 980 Most of those who at present elect Trial by Jury do so for reasons connected with the possibility of conviction: they think that they will get a fairer trial, or that their case will be considered more carefully, or that they have a better chance or acquittal M the Crown Court. What matters to them is the fact of conviction or acquittal, except in the most serious cases, where the defendant knows that if convicted he will receive a substantial sentence of imprisonment, the loss of a reputation or loss of livelihood rather than the possible sentence may well be what is uppermost in his mind. But these are matters which are related not only to the particular offence but also the personal characteristics of the defendant. A professional person of good character, if convicted of a minor offence of dishonesty, for example, will suffer in reputation and may lose his livelihood, whereas for a person with a long record of similar offences the only penalty will probably be the sentence actually imposed. This suggests that if the Magistrates' Court were to decide the mode of trial, it would be both necessary and right for it to have regard to the consequences of conviction for the defendant, which would inevitably involve considering his character and standing in the community".This is what I stress; it is virtually the end of the committee's conclusions.
It would he quite unacceptable for the Courts to discriminate in this way. It would offend against the principle of equality before the Law if particular classes of people or people of some standing in the community were able, in effect, to choose their tribunal, while others were denied that choice. Jury Trial should be available either to anyone charged with a particular offence, regardless of his personal position or to no-one".Those were the grounds. It sums up the entire debates that we had. It sums up to date what has been advanced to your Lordships. Why has this been suppressed? I do not know. Is it perhaps because those very grounds would add force to the present Home Secretary's protestations when in opposition that it would be quite wrong to accept such a proposal because of the consequences.
The views of the interdepartmental committee provide considerable support to those of the noble and learned Lord the Lord Advocate, expressed, I emphasise, not in the heat of the debate but in an obviously well considered and extensive article written by him when in opposition in The Times welcoming the Royal Commission's report. The article starts with the fulsome compliment that,in almost every respect, the Report of the Royal Commission on Criminal Justice is a masterly piece of work".However, he ends the article with the following terse observation:The serious blemish in an otherwise admirable report is the proposal that in those cases where the accused can now opt for Trial by Jury this right should be removed, and in cases where the Crown Prosecution Service does not agree to Trial by Jury the Magistrates would have the power to decide. This would be madness. There are delays and inefficiencies at present, but the way to deal with them is to improve the mechanics, not to erode a fundamental liberty. How will a defendant feel about this case if he has failed to obtain a Jury Trial and has his case heard in the very Magistrates' Court that refused him his present rights? I hope that Parliament will refuse to countenance legislation of this kind".When the noble and learned Lord replies, I hope that he will tell us the ingredients of the proposal which amounted to madness. They have all faded. Why? It is said because of a right of appeal. There is no novelty in that. That was considered by the interdepartmental committee as part of its proposals. The right of appeal 981 was put forward by Mr Howard, the then Home Secretary, in his proposals which were debated and castigated by the present Home Secretary.
I hope that there will be two satisfactory answers to the two questions I have raised: one relating to Lord Justice Auld and one relating to the interdepartmental report. The position is very worrying indeed because there appears to be a lack of frankness which should be one of the characteristics of this House. I strongly support the proposed amendment.
§ 5.54 p.m.
§ Baroness Mallalieu
My Lords, there may be those in this House, particularly on the Benches which I occupy, who are concerned about rejecting a Bill which has been sent to us by another place, the elected Chamber. It is worth, therefore, looking at what happened in the other place when the Bill was debated at Second Reading on 7th March of this year.
When he opened the Second Reading debate on the Bill, the Home Secretary said that the proposal had the unanimous backing of the Royal Commission on Criminal Justice. Professor Michael Zander, who served on that commission, has since made it clear that this Bill in its present form does not have his backing.
The Home Secretary said to the House that the Bill,enjoys the active endorsement of the Lord Chief Justice, Lord Bingham".—[Official Report, Commons, 7/3/00; col. 886.]However, the letter which the Lord Chief Justice had written to him on 22nd February, before that speech, and which was placed in the House of Commons Library after the honourable Member for Medway, Mr Marshall-Andrews, on 25th July obtained an undertaking from the Home Secretary to do so, states:Your conclusion"—about the form of the Bill—causes me concern. I think there are dangers in excluding consideration of anything which is relevant in the given case".If that is active endorsement, I shall eat my hat!
The Home Secretary went on to tell the House of Commons that the vast majority of High Court judges—in the ordinary course of events they do not try this type of case—the Magistrates' Association and all three police associations gave their blessing to the Bill. Perhaps in the light of what was said there, which no doubt persuaded that House to give this Bill a Second Reading, we should go back briefly to first principles.
The criminal justice system is not there for the benefit of the judges, the magistrates or the police. It is not there—I declare an interest as a practising member of the criminal bar—for the benefit of the lawyers, the Home Office, the Treasury or the government of the day. The criminal justice system is there for the benefit of the people of this country. If the rule of law is to be preserved, it is necessary that the people, not just the professionals, have confidence in its fairness.
Juries sometimes return verdicts which seem inexplicable on the face of it. On occasions it is clear later that a jury has got it wrong. But, for all that, the 982 jury system over the years, and up to present time, has kept the confidence of ordinary people quite simply because they believe that it is the fairest system of trial. Whether they are right or wrong—I make no criticism of the fairness of either lay justices or stipendiary—public perception is crucial because public confidence is the basis of respect for the rule of criminal law. We erode that confidence and take away those provisions at our peril.
Most of those who appear before the criminal courts are young men. Many are from poor or deprived backgrounds. Quite a few come from ethnic minorities. Despite every effort and encouragement to widen representation of those communities on the bench, most magistrates still come from a very different world from those who appear before them. The result is that, given the choice, most defendants who want to fight their case will say, understandably, "I want my case to be tried by people like me, people who will understand the situation I was in because they or their families or friends have had similar experiences".
Defendants may also want 12 fresh minds to look at the evidence and hear their account, not one, two or three people who have already tried many similar cases, sometimes involving the same police officers. There are other factors that lead people to choose a Crown Court trial. More disclosure will be given in a Crown Court. The jury, unlike the magistrates, will not hear or see evidence that is subsequently excluded by legal argument.
There is also a greater chance of pleas to lesser charges being accepted. My learned friend—that is what I would call him in court; I meant to say the noble and learned Lord the Attorney-General—said that 60 per cent of people plead. That is partly because only at the Crown Court does someone of sufficient seniority apply their mind to what the correct charges should be. Above all, when people hear that the chances of acquittal are vastly greater in the Crown Court, they choose the Crown Court—and so would we all, except, apparently, the Attorney-General.
The Attorney-General tugged at our sensitivities, referring to people who have to wait for trial, sometimes for a long time. He mentioned rape cases and child witnesses in particular. I am glad to say that one of the developments that has become increasingly apparent under this Government is the making of provisions for cases involving children to be fast-tracked. I cannot conceive of a situation in which the theft of a banana—which was the example given by my noble and learned friend—would take precedence over a case in which a young child witness had to give evidence.
The line is drawn arbitrarily. As the noble Lord, Lord Mishcon, said, some offences with very serious consequences can be tried only by magistrates. However, this proposal to remove the right to elect trial in middle-tier cases was not in the Labour manifesto at the last election—I think that I read it fairly closely.
983 Two reasons have been given for introducing the Bill now: the first is delay and the second is pressure on resources. However, the system that the Government believe is more desirable has different built-in delays. Up to four separate hearings could replace the existing two. On each occasion, the defendant will be represented. Witnesses may have to give evidence not just once, but twice, with the complete rehearing that an appeal before a Crown Court would involve. New and different delays would inevitably creep in.
In the other place, the Home Secretary said that appeals from the magistrates about venue would be fast and efficient. He said that they would be heard by a resident judge or someone who was nominated by the presiding judge of the court and that they would be likely to be heard within 48 hours. Those of us who often wait outside courts for large parts of the morning while the judge in front of whom we are in the process of conducting a trial deals with a multitude of applications for bail, pre-trial reviews, applications for adjournment, and so on, know that existing trials are often delayed, resulting in something that might have taken a day or two being extended to twice that length because of applications that have to be dealt with in a hurry. The Government seem to be proposing that up to 14,000 other such hearings will be added each year to the Crown Court. I wonder whether those delays and the existing costs caused by jurors, by witnesses and by existing Crown Court trials being held up were considered when the Home Office produced its assessment of the resources that would be saved. The noble and learned Lord, Lord Williams, has not mentioned figures. He simply talked about resources being saved.
When this matter was before us previously, it was claimed that £.120 million a year would be saved. I trust that that is now accepted to be pure speculation, because it seemed to be based on a guess that 14,000 applicants a year would be refused permission to be tried in the Crown Court, that any appeal that they chose to make to the Crown Court would fail and that as a result prison costs would in some way be saved by shorter sentences and shorter remands. The figure was never remotely substantiated.
As we all know, Lord Justice Auld is currently conducting a review of the criminal justice system that covers that topic. The Government are apparently not willing to wait for his report. I hope that we are not going through an exercise today on an issue on which the Government have already made up their mind. I say that because I cannot help but notice the large number of appointments being made at the junior Bar in the past year all over the country to a position that is new since my time as a junior—the assistant stipendiary magistrate. I suspect that the Government are anticipating an inevitable difficulty that they would face if there were a large number of further summary trials. It is very difficult today to get lay justices together again for any case that lasts more than a day or so. If we bring in part-time lawyers who will sit in judgment alone and reach their judgments far more quickly, and I have to say far more cheaply, than lay justices or full-time stipendiaries, it might just be 984 possible to get through the workload. I hope that I am not being suspicious, but I wonder what other work those new appointments are being prepared for.
As the noble Lord, Lord Thomas of Gresford, said, the right to elect trial by jury has always been seen as the principal safeguard for minorities and dissenters who fear that they are likely to be unpopular with judges or the establishment. It is perhaps ironic that tonight it falls to the House of Lords, which is always regarded as the embodiment of the establishment, to protect that safeguard. I shall support the noble Lord, Lord Cope, in the Division Lobby later.
§ 6.6 p.m.
§ Lord Mayhew of Twysden
My Lords, I shall begin with a remark that will attract the approval of all your Lordships. I have deleted much of what I was going to say from my intended speech because it has already been said more elegantly and persuasively than I could hope to do.
Another comment that will attract the support of many of your Lordships is a compliment to the noble and learned Lord the Attorney-General. When he last addressed us on this subject, I presumed to say that his performance had made me proud to be a member of his profession. I should have said that it had made me even prouder. Tonight, that pride has, if possible, increased, although not quite to bursting point. Though wonderfully elegant, his argument was, alas, insufficient. He dwelt lovingly and movingly on the anomalies in the present legislation which provides that many cases of importance shall not be eligible for jury trial. I am afraid that my withers were unwrung, even when he pointed out that one of the right reverend Prelates who might be charged with kerb crawling would not have access to a jury.
My withers were unwrung because it is your Lordships' duty, as it is mine, to assess the value of the right that government propose to take away from those who currently enjoy it. We must then ask ourselves whether any argument has been put forward to justify taking it away. The fact that other people do not have it is not the point. If the balance needs remedying, it lies with the Government to remedy it. In my few short remarks, I propose to question the merits of the Bill by that criterion.
It is true that the Bill does not abolish jury trial, but it substantially diminishes the right to choose it. For those defendants whose right to choose jury trial will be taken away, it amounts to the same thing. Therefore, I suggest that the Government's reasons need to be examined with a good deal of care. When one boils them down, their reasons come to this: there is a right to jury trial and it is very important; far be it from us ever to suppose that we would wish to take it away; however, the trouble is that it is being abused and we must take action. That in a nutshell is the Government's case.
I am afraid that whenever a government, for their own purposes, wish to deprive some people of their rights, they say that they are being abused. Sometimes that may even be true; sometimes it is not. However, in 985 those circumstances it is always upon the Government to discharge the burden of proving that it is necessary to correct an abuse which is happening.
In the present case, I believe that your Lordships should hold that the Government have failed to establish that there is an abuse; they merely assert that there is one. There may have been an abuse once but since 1986—we have heard nothing about this as yet in the debate but we know it from the Home Office's own paper—the proportion of cases that arrive at the Crown Court by way of election for trial by jury has been falling steadily and substantially from 53 per cent in 1986 or 1987 to 28 per cent. I rather think that the figure is now 23 per cent. I hope that we shall be told what the figure is when the noble and learned Lord replies.
The Home Office does not know why a smaller proportion of cases is going to the Crown Court. However, plenty of commentators have a very good idea. They suggest that it is because, first, since 1986 the Court of Appeal has made it very clear that if one unjustifiably changes one's plea to guilty when the case comes to trial, one is liable to attract a penalty in the sentence. That is now enacted in statute. Secondly, they suggest that it is because the procedure for taking a defendant's plea at the magistrates' court now provides that it must be taken before the question of whether or not one goes for trial by jury is allowed to arise.
There is a third point which I suggest is quite significant. Where a not guilty plea is changed at the Crown Court to one of guilty—a point already made by the noble Baroness, Lady Mallalieu—typically it is because on a review of all the circumstances of the case the prosecution has concluded that the justice of the matter will be met by accepting a plea of guilty to a lesser offence. All such cases are included in the statistics. If that is the case, it is in the public interest that that course should be followed. I am quite certain that the noble and learned Lord the Attorney-General, who is responsible for the Crown Prosecution Service, would give no support whatever to the canard that that happens because the CPS has somehow been leant on or wrongly pressurised.
That is why I must conclude regretfully that the purpose of the Bill is still in one way or another to save costs: either to save costs or to avoid spending more money. That can, of course, be a laudable purpose but not where the price of it is disproportionate and causes grave damage to our liberties. Another way was suggested by the noble Lord, Lord Mishcon. He said that, if the balance is wrong, why does one not correct it by creating more Crown Court judges if that is necessary in order to enlarge the right to jury trial.
Why is the incursion on our liberties grave? I suggest that it is grave because there is great value in the traditional common law right of defendants to be tried for dishonesty by a random jury chosen from our fellow citizens when the alternative is perceived to be trial by a permanent, case-hardened authority—or permanent, case-hardened authority figures, as they have been described—who will be on familiar terms 986 with professional witnesses who appear regularly before them. I say that that is the perceived alternative and if the right to go for trial by jury is removed that will be a very serious matter. I believe that that perception is particularly present among black defendants.
I have never heard anyone challenge what I have put forward on more than one occasion to your Lordships in this House with an illustrative scenario which I shall not repeat: that a harassed but wholly honest housewife will reasonably and rationally believe that her innocence of shoplifting, let us say, will be more likely to be accepted by a jury. I have never heard it challenged that she may rationally and reasonably believe that. If she does, why should she not continue to have that right? Theft is dishonesty and a conviction for dishonesty when one is innocent is a disaster for anyone, even if it does not lead to a term of imprisonment.
If, as a defendant, one wishes, in the old language of the law which has now gone, to put oneself upon one's country and go for trial by jury, I suggest that this House should preserve that right, even though it may cost a little. I believe that the Government should withdraw the Bill or that it should be defeated.
§ 6.15 p.m.
§ Lord Simon of Glaisdale
My Lords, I regard it as a great privilege to follow the noble and learned Lord, Lord Mayhew. He was a most successful and admired Law Officer, so he speaks with knowledge of the prosecution process. Moreover, he mentioned the viewpoint in this debate which most appealed to me: that we are taking away from a citizen an existing right. It is a right that has existed certainly since 1855 but which in fact goes back far further, having its origin in Magna Carta.
Lord Devlin, in his famous lectures on trial by jury, said in the encapsulation of a cogent, closely argued and deeply thought-out argument that each jury is a little Parliament. So it is. I use the language of the noble Lord, Lord Cope: very strong evidence is required to take away from any citizen access either to the big Parliament or to the little Parliament—the right to trial by jury. The jury is after all the forensic microcosm of political democratic society at large. However, that is what we are asked to do.
Obviously the Government are not tyrants. They do not propose to abolish the jury system or Parliament and there is no need for the frequent disclaimers that we had in the other place to that effect. However, the noble and learned Lord the Attorney-General put it very well in his letter of 1993. My noble and learned friend Lord Ackner quoted a phrase from it which convicted the noble and learned Lord the Attorney-General of a complete volte face. So it does. However, he is not the only great statesman who has changed his mind and we must not hold that against him. However, what he said, not only in the passage about it being an act of madness, was that the way to deal with delays and inefficiencies was to improve the mechanics, not to erode a fundamental liberty. The word "erode" is the 987 danger here—the chipping away of liberty rather than the subversion of freedom. We must guard lest we are eroding what he called "a fundamental liberty".
In the end it comes to this. Trial by jury is the people's justice. It is decision by the people, for the people and of the people. Just as we respect what Lincoln said on the battlefield of Gettysburg, we should be equally careful where we are considering the microcosm of the democratic process.
There is another great advantage of the jury system. It has been recognised since ancient times that hard cases make bad law. At the same time it was recognised that good law could throw up hard cases, because the law deals with the generality of cases. If an attempt is made to deal separately with every hard case that it throws up, there would be no rule of law at all. There would be palm-tree justice and a lurching from one case to another, so that the citizen would not know under what law he stood. There are several ways of dealing with hard cases, but by far the best way is trial by jury. The jury can allow for the hard case without making bad law at all, because it is the judge of the facts.
When this matter was discussed last year the noble Lord, Lord Shore, pointed out that, by returning what the establishment would regard as perverse verdicts, juries have not only protested against a law which they regarded as harsh and oppressive but have managed to secure by their successive acquittals a change in the law.
I have only one question about cost. When the No. 1 Bill came before your Lordships, if my memory is correct, the savings were estimated at £105 million. The figures were fairly bogus then, but that was the figure claimed. The savings are now estimated at £128 million. Why is there that difference? With the impact of plea before venue, the tendency should be the other way. But, as the noble and learned Lord, Lord Mayhew, said, in the end it is not simply a question of cost, because there is no price to be put on justice. There is no price to be put on perceived injustice.
Burke famously said:The age of chivalry is gone.—That of sophisters, economists, and calculators, has succeeded".Let us not have to say that in place of chivalry the people's justice has passed.
Finally, I deal with the parliamentary aspect. There is no reason at all, no constitutional convention, which bars a vote against this Bill with approval of the amendment tonight. This is not a manifesto commitment. On the contrary, on 27th February, 1997, less than two months before the election, the Home Secretary made absolutely plain his opposition to the proposal. It was with his words ringing in its ears that the Labour Party went into the general election.
It is to be hoped that your Lordships will, having listened to the cogent, splendid speeches that have preceded mine, which have really left no argument put forward unshredded, vote for the amendment.
§ 6.26 p.m.
§ Lord Borrie
My Lords, when this House was discussing the first Bill last December I ventured to suggest that when Parliament discussed changes in the way in which criminal trials are conducted that it would be helpful to have researches available into that question. Specifically I criticised the statutory prohibition that currently exists on even the most carefully devised and officially authorised research into the deliberations of juries which is imposed by the Contempt of Court Act 1981.
Since December I have had the benefit of seeing some of the results of studies of jury trials in New Zealand—whose law does not forbid such studies—conducted under the authority of the New Zealand Law Commission, and I am grateful to the noble and learned Lord, Lord Cooke of Thorndon, for putting me in touch with that body.
The New Zealand findings are a refreshing insight into how juries behave; to what extent they comprehend; to what extent they follow the directions and instructions of judges; what further help can be given to them to do their job better, and so on.
This Bill is not the only change to the way in which trials are conducted that is contemplated. There are in the wings the Government's consultation paper on fraud trials and the forthcoming report on Lord Justice Auld's criminal courts review. If tonight's vote goes in the Government's favour I intend to propose an amendment to this Bill which will facilitate jury research.
I am the first speaker since my noble and learned friend the Attorney-General this evening to favour the objective of the Bill. I do so because, in determining whether or not there should be in this intermediate category of offences a trial by jury in the Crown Court or by magistrates, it substitutes a decision by a court in place of the existing automatic unfettered, untrammelled right of election by the accused to say where he will be tried. In principle, it seems to me that an objective judicial determination, taken after considering all the circumstances, is a more sound basis for determining where the trial should be held.
On the last occasion, although not this evening, my noble and learned friend quoted from the 1993 Royal Commission report. That report stated that defendants should no more be entitled to choose the mode of trial that they think will give them a better chance of acquittal than they should be able to choose the judge who they think will give them the most lenient sentence.
A judicial decision as to mode of trial would surely better ensure justice and fairness. I mention to your Lordships that it is not just a matter of justice and fairness to the accused, important though that is. It is also a matter of justice for the victim, for the other witnesses and for the community and for the community's interest in ensuring that undue delay does not occur. Those interests deserve to be considered as well, and they are not served if the accused has, and continues to have, a completely unfettered right to determine where he shall be tried.
989 Your Lordships will have noticed that there is a useful improvement in the Bill compared with the No. 1 Bill in that magistrates must give reasons for their decision as to mode of trial. Needless to say, the accused does not give that, yet everyone else must accept the accused's choice under the present system.
On Second Reading of the first Bill a number of disparaging remarks were made about magistrates and magistrates' courts. Yet surely everyone must accept as a sheer practicality that magistrates must decide, wherever the lines are drawn, now, in the past or in the future, the vast majority of criminal cases. We must all accept that even those offences which are triable only by magistrates can involve serious loss of reputation and serious risk to livelihood. My noble and learned friend the Attorney-General today referred to a whole range of offences where that is the position.
It seems to me that if magistrates are fit to try cases that are certainly not trivial and which have serious consequences for people's reputation and livelihood and all the rest of it, then they are fit to settle the mode of trial.
I thought that instead of the disparaging remarks that I recall being made in this House in December last, a more measured tone was adopted by a former Attorney-General in the House of Commons in the course of debates on this No. 2 Bill. Sir Nicholas Lyell said:Conservative Members are not saying that magistrates are unsuitable to try either-way offences. They have been held to be perfectly suitable to try them—and I think they are",but then he added the phrase,if the accused accepts it".—[Official Report, Commons, Standing Committee D, 6/6/2000: col. 53.]To my mind, if magistrates are perfectly fit and suitable to try either way offences, surely that fitness cannot be dependent upon whether or not the accused wants it and elects. It seems to me that if the position is that magistrates are fit to try either way offences, then that is surely the case, irrespective of the accused's own preferences.
Nowhere else in the world does the accused determine where or how the trial is to be conducted. It is not done anywhere else in the world at the behest of the accused and solely in his own interests. So I favour the objective and thrust of the Bill. However, I consider that the present Bill is rather less likely to achieve the Government's objectives of greater efficiency, fairness and justice to all concerned than the proposals of the Royal Commission of seven years ago.
I say that for a number of reasons. One has been mentioned by the noble and learned Lord, Lord Mayhew. The number of either way cases now going to the Crown Court has already considerably reduced since either about that time or since 1996. One can mention that especially because the Act of that year introduced the plea before venue.
Secondly, the introduction in the No. 1 Bill and in this Bill of a right of appeal against the magistrates' decision not to send an either way case to the Crown 990 Court must inevitably cause a delay in a proportion of their decisions as to venue. The Government have given an estimate of 25 per cent of those who would have elected to be tried by a jury and whom the magistrates have decided to try will appeal. That estimate and the estimates of the number of those who will go for a full oral hearing and so on must be speculative and imprecise. But surely we can all agree that the right of appeal must cause some delays in some cases and, therefore, detract from some of the purposes of the original Royal Commission proposal.
Thirdly, I mention the provision in this Bill that the decision as to venue must take account of the circumstances of the offence but not take into account the circumstances of the accused. The Bill also says that the court must consider whether it has sufficient powers of punishment. That makes only partial sense to me at best because it is not allowed to take account of the circumstances or record, if any, of the accused. Without that, how can the court tell whether or not it has sufficient powers of punishment?
We all know why the Government have made the changes to which I have just referred—to meet the objections raised in this House and elsewhere that to allow the circumstances of the accused to be considered would be to give advantage to the middle-class or professional person, since his livelihood is very likely to be adversely affected by a conviction.
Of course, there are working-class jobs which are just as likely to be affected. Examples were given in the House of Commons; for example, the long-distance lorry driver or the school caretaker who, accused of theft, would be at serious risk of losing his job. But the generalisation that better-off defendants are more likely to be allowed trial by jury if their personal circumstances are considered is true. Yet not to permit, and for this current Bill to prohibit, the circumstances of the accused to be taken into account seems to me to be counter-intuitive, perverse, unfair and unjust to individual defendants. The Government's change of heart in this No. 2 Bill seems to be a triumph of political correctness over justice.
In principle, I still favour this Bill. But it has not been improved as it has progressed. I do not believe that the Government's objectives are as likely to be achieved now, as the Bill is currently drafted, as was formerly the case. Decisions as to venue should be made by judicial authority rather than as a result of the outcome of choice by one party to the proceedings; namely, the accused. The choice which was provided in 1885 was and still is something of an oddity. But changes in the law and changes in experience since the Royal Commission report in 1993, changes made to the commission's proposals and to the first Bill make me feel that the Bill is much less likely to achieve what is intended than was the case.
I am not convinced of the urgency for the Bill. Lord Justice Auld has been asked to look at the criminal justice system as a whole. I personally should like to see the outcome of authoritative studies of jury trials to assist further consideration of 991 the system. The Government have my vote this evening but those are the doubts which I have about the decreasing value of the Bill over a period of time.
§ 6.39 p.m.
§ Lord Hutchinson of Lullington
My Lords, those who oppose the Bill will be encouraged to hear that the support is crumbling, having heard what the noble Lord, Lord Borrie had to say. His view that this Bill is worse than the first is encouraging to us all. However, this Bill is as dangerous as the first Bill was. In my view it is also patently absurd. Its danger can be spelt out shortly, yet again. It gives an unprecedented power to a single stipendiary sitting alone, or two or three magistrates together, to deprive the citizen of his or her historic democratic right to trial by jury in a huge swathe of over 700 offences covering all except the most serious crimes.
That democratic right has now been described by the noble and learned Lord the Attorney-General as the defendant's diktat. I only hope that in saying that he was speaking as a Labour Minister and not as the head of my own great profession. It was encouraging to hear from the noble Baroness, Lady Mallalieu, that at the Bar the views of the great judge Lord Devlin still prevail and that the matter is still one of principle there.
That right has always been based on principle, that no one should suffer more than trivial punishment or loss of liberty without a prior verdict, not of an appointee of the state but of his or her fellow citizens. In that way the ordinary citizen is bound into the criminal process forming a central pillar of our democracy and one of its greatest safeguards. That process is described now by the leading government lawyer as merely a matter of court management.
Clause 1 of the Bill spells out how that imperious power is to be exercised replacing Section 19 of the 1980 Act under which the magistrates today must consider, above all, whether the case before them is serious. The new Clause 19 makes no mention of seriousness. The reason for that astonishing omission is pathetically clear. What makes a case serious for a defendant in 90 per cent of cases is the effect of a conviction upon his reputation or livelihood. Only he can know that. That was recognised in the first Bill and strongly recognised by the Royal Commission. But if we remove those considerations from the Bill altogether, logically we have to remove any consideration of seriousness. What is left? This is why I say the Bill is absurd: the magistrates are then left to consider only the nature of the case and the circumstances of the offence in a complete vacuum. Their task becomes ridiculous. One can go on until one is blue in the face considering the nature of the case and the circumstances of the offence. One can say, "Is it long? Is it short? Is it violent? Is the offence dishonest? Is it white? Is it black?" One could go on for ever but that consideration has to be directed somewhere. It has always been directed to the question, "Is this offence a serious offence?" Without that consideration, I suggest that the task of the magistrates becomes 992 absurd. Thus, as we have already been told, Professor Zander rightly now denies any support from the Royal Commission for the Bill.
Equally—the point has been made; I make it again—how can a court consider adequacy of sentencing powers when it does not know whether the person in front of it is a paragon of virtue or an old lag? Surely that is absurdity. At present a defendant will, in general, accept the fairness of the procedures in court. Eventually, most defendants come to accept the verdict. Here, what is the position? The defendant will be forced to accept trial by a court against his will; by a court which has refused his request apparently because his case is not serious when he knows that a conviction will be complete devastation for him or his family. His appeal is to be to a local judge in close touch with the magistrates who, in the defendant's perception, will suffer from the same shortcomings as they do and who will have every incentive to save his brother judges from trying what in their view are trivial cases.
What happens then? On conviction, he may be sent up to the very court that he had asked originally to go before because now, lo and behold, his case has become too serious. That is a recipe for distrust, resentment and contempt of the system. It is a lottery as every Bench and stipendiary across the country exercises discretion in inconsistent and different ways. We were reminded by the noble and learned Lord, Lord Ackner, that the James committee foresaw that all those years ago.
There is another cause for distrust. I refer to the cynical and unprincipled approach of the Government to what is a serious issue of human rights, spun by Ministers as just a modest procedural change or, as the noble and learned Lord said today, a matter merely of court management. At every stage of the last Bilk and of this one, Ministers have claimed the support of the Royal Commission, the Lord Chief Justice and the judiciary. But what did the Minister say when the commission reported? Unfortunately I shall not have the pleasure of repeating again the comments of the noble and learned Lord the Attorney-General. That has already been very well done by the noble and learned Lord, Lord Ackner. But what did the Home Secretary say on 27th February 1997 in the other place, at col. 433?Let me refer to the [Home Secretary's] proposal [Michael Howard] to end the right of many defendants to elect for trial by jury, even though they may face charges of dishonesty, and their reputation and their whole future may be at stake".That obtains just the same today as it did in 1997. He stated:Surely, cutting down the right to jury trial, making the system less fair, is not only wrong but short-sighted, and likely to prove ineffective".And,If a police officer, a Member of Parliament or even a Secretary of State were charged with an offence of dishonesty—there is dishonesty again—would they not insist on being tried by a jury?".993 "Insist" is the word he uses; that is, no doubt, to assert the defendant's diktat. They would insist on their fundamental right to jury trial; they, not the court, knowing that their whole future may be at stake. He concluded by asking,why should others be denied that right?".—[Official Report, Commons. 27/2/97; col. 433.]Why, indeed? Now his solution in this Bill is to deny everybody that right. "Ah", say Ministers, "a right of appeal to a Crown Court judge alters everything". That is their alibi, referred to many times in the passage of the last Bill. But that will not wash. If we read carefully what Mr Straw went on to say, we see this:Will not forcing mini-trials on magistrates, the delays that may occur where there is an interlocutory appeal, simply worsen the delays?".Those are exactly the points that we, the opponents of this Bill and the last, repeatedly made.
I remind the House of the words of the Attorney-General: that the way to deal with this is to improve the mechanics, not to erode a fundamental liberty—a "fundamental liberty" now referred to as the defendant's diktat, as a totemic emblem. Now his stance is that an appeal clears all that; that fundamental liberties can be eroded as long as it is done by a Crown Court judge. Madness, as we have heard, becomes sanity.
The noble and learned Lord retains his skill as the master of the U-turn. At the Second Reading of the last Bill, on 2nd December 1999, at col. 921, he said:The magistrates will be required to have regard not only to … gravity [and] complexity … but also—this is of critical importance—to the effect … on the defendant's livelihood and reputation".In these few months those critical safeguards have melted away and the poor defendant is now left entirely defenceless.
Last time the noble and learned Lord regaled us with many of his previous U-turns. He told us about the appeals against lenient sentences; about the making of the breathalyser offences triable summarily; about the removal of peremptory challenges. We all enjoy the jokes of the noble and learned Lord—indeed, jokes have been in rather short supply in the new, reformed House of Lords. But, as your Lordships will remember, he also said that he is now a poacher turned gamekeeper. That was a perfect analogy, for he preserves the pheasants and the grouse for the fat cats of the commercial and libel courts—on the Front Bench, of course—while the poor criminal poachers must bag the odd, emaciated, politically-modified, legally-aided rabbits in the wastelands of the Back Benches.
Of course it is not a laughing matter. Are those ministerial arguments principled? Have they been guarding our human rights? Have they been protecting our democracy? Have they been observing the integrity of our judicial process? Or do they desperately try to hide the fact that the Bill is Treasury-run, as the noble and learned Lord, Lord Mayhew, 994 pointed out? Or did the cat jump out of the bag when the Home Secretary said on 26th February last year at a criminal justice planning meeting in London,I wasn't sure for a long time. But I've finally decided to remove the defendant's right to jury trial as I do not want defendants to argue human rights points after the Act comes into force".Finally, at Second Reading, as we heard, Mr Straw claimed the active endorsement of the Lord Chief Justice. We heard the extracts from his letter 12 days before Second Reading expressing his "unease" and "concern", ending with the words:I do not think one could say that a defendant's past record is always irrelevant to a decision. Magistrates and judges should not be obliged to ignore it".The Government can no longer rely on his support for this Bill.
I conclude by asking whether it is right that the support of the judiciary should be claimed in introducing a highly contentious Bill such as this. How many Chancery judges, I wonder, considered the arguments at the judges' meeting? Not one single Crown Court judge has been approached. Who are the judges concerned? What are dissenting judges to do? Are dissenting judges now to lobby this House and the other place? Are they to write letters to The Times saying that they do not agree? Is it right, as the correspondence discloses, that the Lord Chief Justice of the time should be invited to a drafting meeting of parliamentary counsel to improve the wording and to fashion amendments? Have this Government simply abandoned the separation of powers? I suggest that those are serious matters for this House to consider at some other time.
The twists and turns of Ministers; the whole shabby history of these two Bills; the guillotine in the other place; the harm to the criminal process; the impact on the vulnerable, the underprivileged and the ethnic minorities and the Bill's inherent absurdity will surely convince all noble Lords to vote for the amendment.
§ 6.57 p.m.
§ Baroness Kennedy of The Shaws
My Lords, this week the Prime Minister courageously did what politicians rarely do. With humility and decency he admitted that there were areas where mistakes had been made by the Government. It may be a source of schadenfreude for those on other Benches; for me it is a sign of real leadership and gravitas when a Minister, particularly a Prime Minister, is capable of such reflection and honesty. No government can get it right all the time. The people of this country know that and respect plain speaking.
This Bill is another area of mistake—profound mistake. Fortunately, this is a mistake which can be cured before the damage is done. Some of the motivation may have been well intentioned—we should always be finding ways to oil the wheels of justice, to avoid delays, to reduce waiting times for witnesses and to keep down costs wherever possible. But the good management of courts should not be surrendered to managerialism; nor should we allow the erosion of the keystones of the system. I, for one, cannot make a whore of my principles.
995 The arguments against the reduction of jury trial have been made by me in this House many times before and I do not want to rehearse them all again. But I should have thought that removing the choice of trial from the citizen is the very antithesis of this Government's philosophy, which is supposed to be about empowering and engaging citizens.
By reducing the number of jury trials dramatically we institute an erosion not only of justice, but also of active citizenship. We talk about the social contract being concerned with rights and responsibilities, and here we have the finest example of just that. That jury tradition is not only about the right of a citizen to elect trial but also about the juror's duty of citizenship. It gives people an important role as jurors—as stakeholders—in the criminal justice system. Seeing the courts in action and participating in that process maintains public trust and confidence in the law.
It is one of the reasons why our criminal justice system is admired around the world and I hear it lauded regularly as I travel for the British Council. It is also one of the features of our system of law and governance which produces social capital. What do I mean by that? Social capital is not easily reducible to pounds, shillings and pence, but it is that unquantifiable but hugely important sub-soil from which trust is created and from which thriving societies grow. Many things contribute to social capital and it will vary in different countries and societies. Jury trial contributes enormously to the social capital of this country.
The Bill should fail for many different reasons and they have been enumerated tonight. However, I believe that it should fail particularly because of some of the myths the Government have used to maintain the arguments. One of the myths which has not been mentioned tonight but which I have heard mentioned several times recently by colleagues in this House is, "What's the problem? Don't the Scots do it this way?". Wrong; the Scots do not do it this way. In Scotland, the procurator fiscal, who is a lawyer, decides whether a trial shall be by jury in front of the sheriff or without a jury in front of the sheriff, the sheriff being a qualified and experienced judge.
If a case is tried in a summary manner without a jury, it will draw down only a maximum of three months' imprisonment and there is no committal to a higher court for a greater sentence. I warn colleagues that the criminal justice system is carefully calibrated. You cannot just uplift something from another system and transfer it without consideration of many other factors. It is often forgotten that law is cultural and we must take account of traditions, heritage and values. Therefore, one cannot cherry pick as the Government are seeking to do.
Another myth is that there is good research to show that no racial discrimination will flow from these changes. Wrong. New research from the Commission for Racial Equality shows that the chances of black and Asian defendants having their cases terminated by the prosecution at the Crown Court are respectively double and triple those of white defendants. In the 996 research sample of those who elected trial in the Crown Court, the majority were either acquitted of all charges or, as the noble and learned Lord the Attorney-General said, had their charges reduced and pleaded guilty. The conclusions of the research were that the right to elect to go to the Crown Court played a key role in rectifying discriminatory police practices such as over-charging and pursuing charges based on weak evidence.
The Bill is not only unpopular, as was shown earlier in the way with which it was dealt in the other place, it is opposed by all the major civil liberties organisations and all legal practitioners. Of course, we shall no doubt hear from people who suggest that this is all trade unionism by lawyers, but the argument is about principles and knowing first hand how people are directly affected. Liberty, Justice, the Legal Action Group, NACRO and all the groups representing ethnic minorities are of one view about the Bill—and let me tell your Lordships that it is not positive.
As regards the other myth that somehow the Bill has been salvaged by dropping the reputation test, the change only compounds the folly. Others have dealt with the subject. It is impossible for magistrates to decide what is serious without having consideration of how it will impact on the lives of individuals. These are not trivial offences about bananas and jellies; they are charges of theft, burglary, the possession of drugs, the supply of drugs, indecency and gross indecency. The impact on people's lives can be enormous.
My noble and learned friend the Attorney-General argued about delay and explained his concerns in particular for those who are victims of sexual offences and abuse. I spent 20 years of my professional life arguing for a fairer treatment of the victims of crime particularly in those categories. Indeed, the best way of dealing with that is to find ways of fast-tracking such cases and preventing delay. Already we are seeing the benefits of the fast-track system, as my noble friend Lady Mallalieu told the House. I remind the noble and learned Lord only that one cannot purchase justice for victims at the cost of injustice for those who are accused.
Perhaps I may reiterate the concerns of my noble friend Lady Mallalieu that behind this a redesigning of the system is taking place but without openness and transparency. There is the business of suddenly significantly increasing the number of those who might become full-time stipendiary magistrates. If that is part of the thinking of those in government, I say only that if you do not take the public into your confidence about what you are trying to do, you inevitably get your fingers burnt. We have seen that during the past few weeks. People want to know and to understand the basis of shifts in policy.
I hope that this is not about some harmonising or homogenising with the rest of Europe, creating a "supercrime" category of cases which will be dealt with by juries, with everything else being dealt with by a class of professional magistrate. That is not part of our cultural tradition. The Bill would, if implemented, do enormous damage to the reputation of the criminal 997 justice system. Defendants accused of serious offences would, against their wishes, be tried not by ordinary men and women but by what they regard as representatives of the establishment whom they perceive, rightly or wrongly, to be prejudiced against them or lacking in understanding of their personal circumstances.
They may be wrong about that, but I reiterate what others have said: perceptions matter when it comes to confidence in the system. Politicians should be careful before they undermine one of the few aspects of the legal system in which all sections of the community retain confidence. Ministers could more effectively turn their attention to other ways of improving the efficiency of the criminal justice system.
Finally, I warn the Government that to use the Parliament Act in the face of so much opposition will be perceived as a terrible display of arrogance, and I hope that we have learnt our lesson on that. I, too, shall support the noble Lord, Lord Cope, in the Division Lobby.
§ 7.8 p.m.
§ Lord Alexander of Weedon
My Lords, to speak after the previous two speakers is to follow two of the finest spirits in our profession. They embody the priceless virtues of the Bar: independence and a real and passionate concern with the rights of citizens.
It may go a little against the grain of the debate if I say that I respect much of the work of the present Home Secretary. I believe that he deserves great credit for his part in the incorporation of the European Convention on Human Rights. I also believe that prior to the Recess he dealt sensitively with the difficult football hooliganism legislation. I equally respect very much the stance he took in opposition when the then Conservative government flirted with, but wisely withdrew from, the very proposal that is now being put forward.
I find it difficult to understand how a man of such ability and sensitivity can be so mistaken as to say in the other place on Second Reading of this Bill:The Bill threatens no hallowed rights".—[Official Report, Commons, 7/3/00; col. 900.]No one who has heard the passion and power of the debate in this Chamber tonight can conceivably believe that that is an appropriate view of what has been for centuries the right of an accused to elect—I prefer that word to "dictate"—trial by jury on an offence which for him or her is not trivial, however it appears to others.
In the light of the speeches which have been made, I do not need to say much about the merits of the Bill. To oppose the Bill is not in any way to call into question the work of the magistracy. It is marvellous that it tries 97 per cent of criminal cases. I am aware that the magistrates' courts committees do excellent work, almost all of which is voluntary, in administering an ever-more demanding system. Sometimes the magistracy has itself feared—that has been fuelled by press reports this summer—that the 998 Government's agenda is to reduce the work of lay magistrates and to replace them by stipendiaries. That fear was touched on obliquely by the noble Baroness, Lady Mallalieu. I very much hope that the review of the criminal courts chaired by Sir Robin Auld will decisively reject any such proposal.
We all know that to praise the magistracy does not mean that trial by jury should be eroded. It is accepted that in this country it is the right form of trial for serious cases. I do not propose to add to that but merely to comment on the progress of this Bill since the previous occasion on which it was before this House. I gratefully adopt much of the critique of the noble Lord, Lord Borrie. It was a rotten Bill last time round, in part because it allowed magistrates, in making their decision, to take into account the reputation of the accused. Obviously, that was inappropriate because it would be seen to favour the white and middle class against the under-privileged who are often to be found among ethnic minorities. Your Lordships eloquently shot a hole in that argument so devastatingly that the Government accepted that they must change direction.
However, as the noble Lord, Lord Borrie pointed out, the change of direction makes this Bill even worse, because not a single circumstance peculiar to the alleged offender can be taken into account in determining the mode of trial. We all know that that is unrealistic. In practice, in some cases magistrates see a black defendant who comes from a sink estate where there is a record of crime: in other cases they will see a white lady who is charged with an offence who has an address such as "The Old Vicarage". The usual osmotic assessment of those circumstances which cannot be taken into account will be taken into account. Whether or not one takes into account reputation, this Bill is a bad Bill either way (in its own jargon). I gratefully adopt the view of the noble Lord, Lord Borrie, that the Bill is worse now than when this House rejected it by a thumping majority of 220 to 115 last time round.
Several speakers have drawn attention to the fact that this issue is currently being studied by Sir Robin Auld. He and his colleagues are looking at the criminal justice system with a wide-ranging remit and are due to report by Christmas. Perhaps I may quote their terms of reference:Whether or not the Crown Court and magistrates' court should continue as a separate system. Should there be a single comprehensive and simply expressed code of procedure with, so far as appropriate, the same forms and methods of starting prosecutions and specifying the offences charged? Who should decide where a case is to be tried".That illustrates both that this issue is interdependent with other issues which Sir Robin is considering and that it is four square within the ambit of his inquiry. Why should the Government pre-empt the advice of their own able, and no doubt expensive, commission? Surely, to turn round the argument of the Attorney-General—he and I are good friends—an open-minded government would await the response of Sir Robin Auld.
999 The whole history of this Bill has been characterised by the Government's disdain for the parliamentary process. In January, a coalition in this House of Conservatives, Liberal Democrats, Cross-Benchers and a few splendid independent spirits on the Government Benches threw out the Bill. I vividly remember that the Leader of the House immediately riposted that the Government would proceed to put the Bill to the elected House. That reaction indicated to me two disappointing aspects of the Government's thoughts. First, they were not prepared to pause even to reflect whether it was just possible that the arguments put forward in this House, however improbable they might appear, were right. Secondly, the Government's approach embodied the concept that the elected House was the place to which the Government were truly accountable and that it would form an independent view.
In this Parliament it is only this House that has independence. In the House of Commons there have been exactly 1,000 Divisions. The Government, in best old-fashioned soviet style, have won 1,000 decisions. Use has also been made of the guillotine, notwithstanding the Government's enormous majority, on many more occasions than in previous parliaments. The Government revel in their tame juggernaut foot soldier majority.
I was a member of the Jenkins commission which took trouble to recommend what some of us believed to be a fairer system; namely, that in elections votes cast should he allowed to be reflected in seats in Parliament. We optimistically awaited the Government fulfilling their manifesto commitment to put the report of that commission to the electorate in a referendum. The Government have resiled from that commitment.
I believe that the lack of an effective House of Commons has real dangers. It may well encourage the kind of direct action that we have seen in the past few weeks. One member of the government party in the other place, who fortunately has a considerable store of independent fuel in his tank, recognised the faults and farce in the process in the House of Commons. I am glad to say that he was a barrister—Mr Bob Marshall-Andrews QC. He said he felt that the Government did not have a mandate for the measure because,this is not a manifesto commitment of the Labour party or any other party. It has never received careful consideration and control through conference or any forum—policy or otherwise—in my party. It has never been placed before the electorate … It is surely wrong that the Government should use their massive and quiescent majority without the issue ever being put before the electorate, particularly as a review commission is sitting and will report by the end of the year. Its finding may then be properly considered by the electorate".—[Official Report, Commons, 7/3/00; col. 918.]I can only say to those words, "Hear, hear".
I can only say to the Government that if they seek to steal a march on the Auld commission they will be displaying the very arrogance to which the noble Baroness, Lady Helena of The Shaws; I mean Lady Kennedy of The Shaws—I got it half right, and the half I know best—referred. Equally, if the Government really believe in this, why do they not wait and put in 1000 their election manifesto, "We intend to seek to restrict trial by jury", and let them see how it appeals to the people? But what they should not do, as the noble Baroness said, is dare, if they wish to be seen as respecters of Parliament, to seek to use the Parliament Act on this dreadful Bill.
§ 7.21 p.m.
§ Viscount Tenby
My Lords, I rise to offer my support to the Bill. Having made that provocative statement, I had better say immediately that I must do two things. The first obviously is to don my flak jacket. The second is to declare an interest as a magistrate of many years standing, now on the supplementary list, and as a member of the Magistrates' Association, although I hasten to say that any views I express today are my own.
These two modest pieces of legislation have attracted more misrepresentation and more exaggeration than anything since King Alfred put back the cause of haute cuisine in this country by 600 years. Most of the arguments have already been advanced in discussion on the ill-fated mark 1 Bill. A certain amount of repetition is therefore inevitable; a hazard which has hitherto in my experience in this place not deterred speakers unduly. The proposal then is to remove the right of certain defendants to opt for trial at the Crown Court rather than before magistrates where some lesser offences are concerned; in other words, each way offences.
In one respect I believe that the new Bill is an improvement on the old one, in that it does not require magistrates to have regard to a defendant's circumstances and the effect a conviction would have on his or her reputation in determining where the trial should be held. Had the earlier Bill survived, I would have sought to amend that proviso during its passage.
It may fall on deaf ears, but I have no doubt whatever that the thrust behind the Bill enjoys the substantial support of all who have to work the system in the lower courts—the magistrates, the justices' clerks and the police. If passed, the Bill will save money. The amount that has been bandied around is anything between £100 and £128 million annually. But that is something of a red herring because, welcome though that is, the issue is not about money but about two rather more important things: the ability of streetwise repeat petty offenders to manipulate the present system to their advantage and, arising from that, the consequential increase in the time taken before a case is brought to court. Perhaps I may put some flesh on that point because we have not previously had the figures.
According to the latest information, the average time between committal and trial in the Crown Courts is 15.2 weeks. That of course excludes the time between first appearance and committal, which might charitably be assessed at eight weeks, provided all the relevant agencies have got their acts together. Some may think, "Some hope". So, optimistically, let us call it a total of 23 to 24 weeks. In my area the average time before the summary trial itself is eight to 12 weeks.
1001 Every effort is made to get it down towards the lower of the two figures. We all know—the records prove it—that many defendants change their plea to guilty shortly before their Crown Court appearance. The consequential waste of human resources in the case of both police and witnesses is considerable.
In the case of the former, for example, it may be that they would otherwise be on the beat at the time. What about the call for more bobbies on the beat? Here we are taking them off it. It also increases the ordeal of the victims and may adversely affect the memories of some witnesses, particularly the elderly. We have repeatedly been told that this is a direct attack on a defendant's right to be tried by his peers. I believe we can safely disregard the near hysterical cries of Magna Carta abuse since the right of election dates only from the Criminal Justice Act 1855.
However, the critical point is surely this. Not all those accused of lesser offences enjoy the right at the present time. The best tunes are always worth repeating, especially if they are being sung by a Welshman such as the noble and learned Lord the Attorney-General. For common assault you can forget election, just as you can if you assault a police officer, commit criminal damage up to a level of £5,000 or expose yourself indecently. Similarly, if you are accused of any one of three of the most serious motoring offences—driving while disqualified, drink driving or taking without consent—you can whistle for a Crown Court trial unless, of course, the magistrates decide to send you there. Some might feel that to be accused of any of the foregoing offences would be just as damaging to one's reputation as, say, stealing a bottle of milk from a supermarket.
There are unexpected spin-offs from these exclusions. The offence of causing actual bodily harm carries an each way ticket, whereas, as I have just said, common assault does not. In order to save both time and money the Crown Prosecution Service may be tempted to prosecute under common assault. It makes sense.
If opponents of the Bill were arguing along the lines of, "Let's put a stop to this lottery and make the right of election available for all offences, not just the haphazard selection as at present", I still might not agree to the proposition, but I could at least see the logic in it. The noble Lord, Lord Mishcon, made that point. As so often, he put his finger on the point. I am sorry that the noble Lord is not in his place at the moment. We all know, however, that this will not happen because it will cost too much money, increase the legal log jam even more, making the old saw about justice delayed being justice denied even more relevant, and because Crown Courts simply would be unable to deal with the extra volume of business engendered by the change. I must also point out that, so far as I am aware, not a single amendment was put down during the passage of the mark 1 Bill to attempt to remove that anomaly. So it is all about Luddism and not constructive alternatives. It is better by far to keep the 1002 quaint old British Gilbert and Sullivan capriciousness which we now have and will fight to the bitter end to defend.
What is the size of the problem? Latest available figures indicate that we are talking about 18,000 defendants who annually elect Crown Court trial against the 47,000 who will have been sent there by the magistrates. In other words, Benches already send nearly two-and-a-half times as many defendants to Crown Court as those who go there by their own choice.
Let me turn to one other aspect of the argument. There appears to be a feeling, always strenuously denied of course but nevertheless present—it was certainly present in our discussions on the mark 1 Bill—that magistrates are a throwback to an earlier, unreconstructed age and are not always as competent as they should be. In fact, the people who are out of touch, those who live in the world of Dornford Yates, or perhaps more appropriately in this context, Somerville & Ross, are those who harbour and promote such thoughts. On competence, let the facts speak for themselves. Magistrates conduct some 70,000 trials annually and out of this formidable total only one case has had to be referred to the Court of Appeal by the Criminal Cases Review Commission. That is only one out of 70,000 cases.
It is also inferred that benches may not be quite up to snuff in racial awareness, or at least may not appear to be so among their clientele, which I agree is an important point. I have to say, however, that the magistracy is just as aware of its responsibilities in a multi-ethnic society as any other public body—probably rather more than most. In passing, it contains proportionately more representatives of ethnic minorities than, for example, the judges' bench. It also contains many trade unionists, blue-collar workers and now, mercifully, younger representatives of our society.
Of course there are batty magistrates, just as there are batty barristers and, dare one think the unthinkable, batty judges as well. That is the nature of the human race, but I strongly resent the suggestion implicit in the comments of some who oppose the Bill that defendants get a better deal in the Crown Court. That is not borne out by the facts, just as it is not true that ethnic minorities are worse served in magistrates' courts, where the conviction rate for white defendants—as was pointed out by the noble and learned Lord the Attorney-General—is higher than for those who are black.
Let me dispel one further myth which has been touched on during today's debate.
§ Earl Russell
My Lords, I wonder whether I might ask the noble Viscount to accept the assurance given by the noble Lord, Lord Alexander of Weedon, that those of us who support this amendment do not intend 1003 any criticism of the lay magistracy. Those words were spoken for the overwhelming majority of those involved.
§ Viscount Tenby
My Lords, I am much obliged to the noble Earl for that interruption, made in his usual gracious and graceful manner. Of course I accept what he has said but, on reading some of the comments that have been made in the media as well as certain remarks recorded during the passage of the mark 1 Bill, there appeared to be some feeling about that.
Perhaps I may dispel one further myth. We have been told repeatedly that magistrates take advice from their clerks behind closed doors and, after coming to a decision, do not elaborate on how they got there. That did not happen in any court in which I have sat in recent years. Furthermore, a practice direction from the Lord Chief Justice in 1981 has effectively blocked this bolthole. If that were not assurance enough, Article 6 of the European Convention on Human Rights will make that become even more relevant after next week. I beg noble Lords not to trot out once again that old canard. I cannot stop myself from thinking that if a similar discipline were to be required of juries and the steps by which they arrived at their verdicts were to be made public, there would be red faces and wig tearing all round in the legal profession, as well as throughout the country as a whole.
For a variety of reasons I commend this Bill to the House. I am almost tempted to refer to it in the terms of a winegrower's recommendation. It is a robust, no-nonsense Bill which will stand the passage of time and which should be laid down without delay.
I hope that I will not be thought presumptuous on this, but to noble Lords behind the Government Front Bench I say: be of good cheer, despite the forces of reaction ranged against you. To noble Lords on the Liberal Democrat Benches—with whom in related matters I often find myself in agreement—I say that I respect their opinions on this matter, which I believe to be wrong but which at the least have been expressed consistently. To noble Lords on the Conservative Benches, I can only express—I am trying to find the right word—polite incredulity. I hope that they have not allowed the frenzied atmosphere of the spill-over period unduly to cloud their judgment.
Unusually for the conventions of this House, the Bill is to be divided upon at Second Reading. If that is the case, I hope that there are sufficient numbers of noble Lords to see the Bill for what it is—a long overdue attempt to correct an anomaly and a scandal—and therefore resolutely to support it, as I shall.
§ 7.35 p.m.
§ Lord Beaumont of Whitley
My Lords, unlike almost all previous speakers, I do not have the advantage of being a lawyer or of being a magistrate. My experience is limited to two terms of learning about law at Oxford and of being successfully defended by the noble Lord, Lord Hutchinson, in an indefensible case before a stipendiary magistrate. That has given me a great respect for the process, as well as for the judgment and expertise of the noble Lord, Lord Hutchinson.
1004 It is no offence to magistrates to describe summary proceedings as "done quickly and without formality", because that is the dictionary definition of such proceedings. The fact that that is not always the case in magistrates' courts trials is one of the main reasons for opposing the Bill. By imposing a heavy caseload on magistrates' courts, the Bill goes against the very concept of summary justice.
Whatever the arguments of justice and tradition which support the continuation of a right to jury trial—a right which, I understand, actually pre-dates Magna Carta—my party, the Green Party, is always more concerned with the realities of life. If enormous savings were to be made as regards time or money, then it should possibly be considered—although those are not the most important considerations in the administration of justice. However, as the debate continues, it has become increasingly clear that no such savings will be made.
Previous reforms have improved the situation. Any temptation to "manipulate the system" has been more or less eliminated. That has had the effect of reducing the number of cases going to the Crown Court from more than 30,000 to around 18,000, a spectacular reduction of 50 per cent.
The savings in time and money are so small as to make only a minor improvement in the criminal justice budget. Is it really worth the sacrifice of principle which is involved? Is it, as some have said and as has been hinted at by the noble Baroness, Lady Kennedy, an attempt to bring the English criminal justice system closer to that which prevails on the Continent? Is it because the inability of juries to provide explanations makes it harder to accommodate their decisions within the European Convention on Human Rights? Such an approach would be misguided. Legal hegemony is not an essential part of the European vision. Harmonisation of legal procedures is not a key objective for Europe. On the contrary, it is being realised at last that diversity is a strength and not a weakness.
My respect for the noble Lord, Lord Hutchinson, has not diminished in the slightest, but a conversation conducted immediately in front of me does rather lengthen the delivery of my speech, which no one would want—not even myself.
§ Lord Beaumont of Whitley
My Lords, more important, is the Bill really an improvement to the system at all? To say that a magistrates' court trial is less fair than a jury trial is not to make a criticism of the magistrates but is based on an inherent flaw in summary trials; namely, that there is no independent arbiter or judge to decide what evidence is or is not admissible so that such matters as previous convictions, an irrelevant but prejudicial background, improperly adduced parts of an interview and so forth may have to be considered, even if only to decide that they should not be taken into account.
1005 Decisions of law are taken on the advice of court clerks, who may or may not be professionally qualified and certainly do not have the training and experience of Crown Court judges. It would not be entirely surprising if either stipendiary or lay magistrates occasionally became "case hardened" and it is not too outrageous to say that summary trials—as the name suggests—are not as full a form of justice as jury trials.
On Sunday, the Home Secretary suggested that it was to the benefit of victims that matters were dealt with by magistrates because it meant that matters were tried sooner. In fact, on average, two-day cases are brought to trial in the Crown Court within five weeks of committal, whereas the average delay in contested cases in magistrates' courts is 21 weeks.
There is one final practical point against the proposed changes—that is, that the Crown Courts are designed to deal with trials whereas the magistrates' courts are not. The bulk of the business of magistrates' courts is taking pleas, sentencing and processing, and of course nearly all aspects of motoring offences. Any case which lasts longer than a day causes re-listing problems because, as has been said, it is always difficult to find a date when the same three magistrates are available unless the time estimate has been correctly predicted.
The hustle and bustle of a modern magistrates' court is not entirely conducive to a trial setting. For example, there are no witness support facilities and already a distinct lack of consultation rooms. On the other hand, the Crown Court has all of these things and the logistical expertise and experienced personnel to handle all the complexities of a reasonable justice system, with all that that entails, including variable timescales.
As the noble Lord, Lord Thomas of Gresford, said, the Bill goes against the grain of this country. That matter should be borne carefully in mind as we decide how to vote. I also bear in mind that the only two speeches made in defence of the Bill—the first by the noble and learned Lord, Lord Williams, and the other by the noble Viscount, Lord Tenby—relied largely on the argument that because we do not necessarily give some people the right in some cases we should take it away from other people in other cases. That seems to me a bad argument. It is with considerable enthusiasm that I shall go into the Lobby in favour of the amendment.
§ 7.42 p.m.
§ Lord Brennan
My Lords, an occasion for a debate such as this presents an almost irresistible opportunity to my barrister colleagues to make resounding jury speeches. I propose to decline that temptation because it has led some of them, in their forensic enthusiasm, to assign motives and strategies to the Government—and to the Home Office in particular—which I completely reject.
This Government and the Home Office have undertaken considerable reform of our criminal justice system: greater protection for vulnerable witnesses; 1006 more imaginative and, where necessary, tougher sentencing; and, recently, assisting offenders not to reoffend by programmes such as "Custody to Work". All these are welcome. They are welcome because they are all reforms necessary in the public interest. But this Bill to abolish the right to elect trial by jury in either way offences is a step too far.
The noble and learned Lord, Lord Steyn, one of our most considered and profound commentators on our constitution and on liberty, has said:The jury system is an integral and indispensable part of our constitutional arrangements…Only the most compelling grounds of public interest could ever justify the abandonment of trial by jury in any area".With that in mind, I ask three questions about this Bill. Can it now be said that there is such compelling evidence? Is this Bill the subject of careful research and convincing data? Will it give the public confidence that the criminal justice system will be the better for it? I shall seek to answer those three questions by addressing your Lordships to four considerations, which I would describe as democratic and not reactionary considerations. Although I was chairman of the Bar last year, none of them represents lawyers' interests.
The first consideration is the role of the juror. Citizens occasionally act as electors and so participate in the life of this Parliament and of local authorities. As taxpayers, our citizens have a constant and often lively interest in the actions of government but little or no control over that government. But, above all, in our criminal justice system, when they act as jurors, our citizens fulfil a vital role—they become the judges of their fellow citizens. They do so because our society believes, first, that judgment by one's peers is fair justice; and, secondly, that judgment in significant criminal cases should be by a jury of the people and not by magistrates or judges. As my noble and learned friend Lord Simon of Glaisdale said in a previous debate:The jury is a microcosm of a democratic society".—[Official Report, 2/12/99; col. 968.]With this Bill, as I calculate it, 85,000 fewer people will act as jurors than presently do so. In times when people are ever more questioning of government and Parliament, and are ever more concerned about their own lack of involvement in public processes, can it really be said that public confidence in our criminal justice system will be increased by reducing the involvement of the citizen as the juror in this system? I think not.
The second consideration is the effect of this Bill on ethnic minorities. Public confidence in the criminal justice system should embrace all the community, including ethnic minorities. As the noble Lord, Lord Dholakia, reminded us in the previous debate, the late and distinguished Lord Chief Justice, Lord Taylor, was right when he said that,Race issues go to the heart of our system of justice which demands that all are treated as equals before the law. It is therefore a matter of the gravest concern if members of the ethnic minorities feel that they are discriminated against by the criminal justice system, more so if their fears are borne out in reality".1007 I do not question the integrity or competence of the magistracy. I do listen to what those in ethnic minority communities say. There has been and will be much debate about the statistics as to whether such minorities are discriminated against in the magistrates' courts and in our police system. Professor Bridges and his team at the University of Warwick have produced conclusions at odds with the Home Office statistics referred to by my noble and learned friend the Attorney-General. Neither report can claim to be conclusive. What is clear is that no one in this House can say with confidence that there is no discrimination against ethnic minorities, whether by over-charging, more severe penalties, or discrimination by the police and magistrates, albeit institutional rather than intentional.
As was pointed out by Lord Taylor, a vital question is whether ethnic minorities feel that there is such discrimination against them. The evidence that they do is overwhelming. Nearly 50 per cent of all ethnic minority defendants who have the right, elect trial by jury; 90 per cent of Professor Bridges' cohort of ethnic minority defendants say that they will receive a fairer trial before a jury. Right or wrong, that is what they feel. And they are not just defendants, are they? They are the sons, daughters, husbands or wives of black people in a responsible ethnic minority community whose feelings we should respect.
The Home Secretary showed considerable foresight after the Lawrence inquiry in setting up the working group that he chairs. Its purpose is to implement the Macpherson recommendations, and in particular to make sure that patterns of discrimination are not sustained, especially in our justice system. I do not know of any—I repeat, any—representative of any ethnic minority in this country who supports the Bill. On the contrary, ethnic minorities want the right to elect trial by jury. It is no reassurance to that community to tell them that their fears are based on statistical misconceptions. The Bill will undermine their confidence in the criminal justice system. Such a result should not be accepted.
Thirdly, is the Bill constitutionally appropriate? That consideration is at the heart of the democratic debate in which we are engaged. When similar changes were introduced previously, they were decided by Parliament. A democratic vote determined who would and who would not have the right to elect for trial by jury. This Bill gives that decision to magistrates and judges. It forbids them to consider the circumstances of the offender; it limits their discretion. Surely it will lead to inconsistency, and that will lead to injustice. For my part, I prefer my liberty to be dictated by a vote of this Parliament rather than by the decision of a particular group of magistrates, no matter how well intentioned.
The fourth consideration is whether the Bill is necessary now. At the beginning of his remarks, my noble and learned friend the Attorney-General said that the resources of a Crown Court are limited and that they must be properly directed. I entirely agree. That no doubt explains why the Home Secretary and the Lord Chancellor appointed Lord Justice Auld to 1008 carry out his review. I am sure that it is intended, if it can, to produce savings, such as those identified by the National Audit Office only a month or two ago: £20 million could be saved simply by improving the administration of our criminal justice system—£20 million! How much more will Lord Justice Auld identify for saving? If such savings are available, the right to trial by jury should be the last, and not the first, of our rights which are endangered in the cause of economy.
When Auld delivers his conclusions, that will be the beginning of the debate, not the end. We in this House inevitably assume that we—the lawyers, the professionals—know everything that there is to be known about what the public want from the criminal justice system. We have no idea. That is why, last year, the Bar Council promoted, at its own expense, a project by the Institute for Public Policy Research into what the public think about, and what they want from, our criminal justice system. The Home Secretary welcomed it and it is now being progressed. That debate is necessary. Before I take away, as a voter in this House, the rights of any citizen in matters as grave as this, I should like to know what those citizens think. The debate is starting, not ending.
In closing, I remind myself that I am a professional and a personal friend of my noble and learned friend the Attorney-General. I have thought most carefully about whether these four democratic considerations could properly be castigated with the intellectual sobriquet, "totemic beliefs". I sincerely hope that he will not so treat them. They are meant to be reasoned, democratic arguments against the Bill.
So I answer the three questions that I posed. First, there is no well researched and convincing data that justifies the abolition of the right to elect trial by jury. Secondly, the public do not think that the Bill is necessary. I know of no evidence that there is any public desire for it. Lastly, and most importantly, the Bill runs the risk of damaging public confidence in the role of the jury in our criminal justice system.
I therefore conclude that there is not the compelling evidence which the noble and learned Lord, Lord Steyn, thought vital. I, like the Home Secretary who reportedly said this, feel anxiety in relation to the Bill. My noble and learned friend the Attorney-General was generous enough to say that it was a debate on an issue on which there could be genuine disagreement. My anxiety leads me to disagree with the Home Secretary. Therefore, with regret, yet with resolve, I come to the conclusion that I cannot support the Bill.
§ 7.56 p.m.
§ Lord Windlesham
My Lords, the speech to which we have just listened was not only notable, but was courageous for a recently appointed recruit to the Government Benches. I remember the letter written by the noble Lord, Lord Brennan, in his capacity as chairman of the Bar Council before he took his seat in this House, which was circulated to all Members of the House of Commons and to selected Peers at the time of the Queen's Speech at the start of this Session. It was 1009 highly critical of the proposals regarding jury trial that were included in the Queen's Speech. The proposals to limit access to jury trial in the manner indicated in the Bill are part of the Government's presentational imperative. They are encapsulated in the phrase, "tough on crime".
The Queens Speech contained a package of "tough on crime" measures, of which the restriction on jury trial was one. It had already been previewed by the Home Secretary to the somewhat unpromising audience of the Police Federation. I say that in the knowledge that I am to be followed shortly by an acknowledged spokesman for the police, the noble Lord, Lord Mackenzie. No doubt the Home Secretary chose that audience because of the nature of what he was about to reveal.
I believe we can all agree that limiting access to jury trial is regarded by Ministers as fitting in with the presentational imperative that drives so much government policy. The noble Baroness, Lady Kennedy of The Shaws, will remember that loss of social security benefit for offenders alleged to have failed to comply with the terms of a community order was another item. There were four others, making six in all. Fortunately, through the efforts of the noble Baroness and others, as well as the willingness of the Government to meet us halfway, the loss of benefit proposals were subsequently modified following opposition in this House.
Since the original mode of trial Bill was withdrawn after the defeat in this House by nearly 100 votes earlier this year, Ministers have made further amendments. I say to them with a sense of sympathy that they must despair at the consequences of those changes, some of which, as the noble and learned Lord the Attorney-General pointed out, were intended to meet concerns expressed in this House and outside. Not only did the changes fail to placate their critics in the House of Commons, including many on the Government's own side, but they also jeopardised the backing of the two most influential sources of support claimed for the original measure.
The noble Baroness, Lady Mallalieu, has already pointed out that while the main reservation expressed by the noble and learned Lord, Lord Bingham of Cornhill, (the Lord Chief Justice at the time) was met by the provision of a right of appeal for any defendant denied trial by jury for an offence triable either way, it is now evident from his correspondence with the Home Secretary, which was placed in the Library of the House of Commons shortly before the noble and learned Lord was appointed as Senior Lord of Appeal, that he was not happy with another change in the No. 2 Bill; namely, the provision that specifically prevents a magistrates' court from taking into account the "circumstances of the accused" when making its decision. Those are the words used in the Bill now before us, and they cover any previous record of offending. Even the noble Lord, Lord Borrie, who spoke in support of the Minister, had reservations about that particular change.
1010 Similarly, the report of the Royal Commission on Criminal Justice can no longer be cited in support of the No. 2 Bill, as was the case in the earlier stages. As we have heard more than once in this debate, a leading member of the Royal Commission, Professor Michael Zander of the London School of Economics, has gone on record as saying that emphasis was placed by the Royal Commission on the view that access to jury trial was important for cases involving potential loss of reputation. That no longer applies; it has been deleted from the present Bill.
In her trenchant speech the noble Baroness, Lady Kennedy of The Shaws, warned—and it was a timely warning—against the danger of covert redesign of the system of criminal justice without any proper forethought or public consideration. The impulse to communicate, to share and reflect the public mood, is so powerful in the present Government that it can have its perils.
More significant even than the loss of the dwindling band of claimed supporters is the review of the criminal courts currently being carried out by Lord Justice Auld, to which reference has been made by several speakers in the course of this debate. The review was set up by the Lord Chancellor in December of last year with a tight timetable of about 12 months. In some ways it is a counterpart to the review by the noble and learned Lord, Lord Woolf, on civil justice, and is expected to report in December of this year. Lord Justice Auld has made good speed; he has not wasted any time. The outlines of some significant changes in court structures are not only beginning to emerge, but recently have been the subject of consultation.
There is now the prospect of a unified, national and centrally-funded administration of all courts of criminal jurisdiction. The unified court is envisaged as having three tiers—with the middle tier comprising of a professional judge sitting with lay magistrates, probably between two and four in number. Although it is not yet resolved where the jurisdictional boundaries should be drawn, the most likely of the possibilities is for offences to be triable at this level if, on conviction, they would attract a custodial sentence of between six months and two years' imprisonment. More serious contested cases would be tried by a jury in the Crown Court as now. Less serious offences would be tried summarily by the magistrates, as now.
Reform of the criminal courts may, or may not, follow this pattern. We do not know what the recommendations will be, or what the Government's reaction will be. The work is, however, well advanced. There is now the prospect of a reform that would eradicate the fundamental cause of all the difficulties that have been experienced: that is the either way category of offences. It is a typically British compromise. It was designed with the best of motives, but the situation is now changing. There is unlikely to be any going back to the earlier concept of either way offences because we have experienced its inherent weaknesses and contradictions.
1011 These changes may, or may not, emerge in the form that I described. However, of one thing we can be certain: changes in the organisation of the criminal courts there will be. Moreover—pace the noble Baroness, Lady Kennedy—they will be carefully considered changes. They will not arise out of a political decision, but will be the result of a review by a highly experienced criminal judge in the Court of Appeal. So the review is timely, and provides an opportunity to get away from the increasingly sterile arguments over the present mode of trial, and the variations that are now under consideration.
Eliminating the either way category would enable us on both sides of the House to look to a more rational and properly considered future when we know the shape of the forthcoming recommendations. It would he a way to avoid—I am sure that the noble and learned Lord the Attorney-General would be the first to welcome this—getting bogged down in the quicksands of the present controversy. I urge the Government to consider the proposal seriously.
§ 8.9 p.m.
§ Lord Donaldson of Lymington
My Lords, in January of this year I supported the Government on the Committee stage of the No. 1 Bill. I now wish to explain, as briefly as possible, why in the case of this new Bill I find myself in the ranks of the opposition. Let me make it clear that that is not out of a desire to get out of a minority position; that is one with which every Cross-Bench Member of this House is familiar.
As has been said over and over again, for a long time it has been accepted that the most serious offences should be tried by a judge and jury and the least serious by magistrates. It has again been said—it needs to be emphasised—that this is not because one is better than the other but simply because the more elaborate procedure of jury trial is generally accepted as being appropriate only in the case of more serious offences.
The either way offences are those which, according to the circumstances, may fall into either category of not being very serious or being very serious. As the noble Viscount, Lord Tenby, suggested in the context of the No. 1 Bill—I believe that this has also been suggested again here today—there may well be offences in the compulsory summary trial category which share those characteristics and ought therefore to be in the either way category. However, that matter is not before us today.
Although in form the dispute is as to whether the accused can insist upon a jury trial in either way cases, the real issue is whether the mode of trial shall be decided in the interests of justice or in those of the accused. The story goes that a lawyer giving the news of acquittal to his client was once ill advised enough to say, "Justice has triumphed" only to be met with the immediate retort, "Appeal at once". I am sure that that is apocryphal but it contains more than a grain of truth.
I must not speak for your Lordships, but I confess that if I were accused of an offence, my interest in justice—which has been an abiding interest all my 1012 life—would be suspended for the duration. What exactly self-interest would dictate I do not know—obviously that would depend upon the circumstances—and I prefer on the whole not to find out.
The only real reservation which I had about the No. 1 Bill was that it expressly directed the magistrates' attention to the effects which conviction could have upon the accused's reputation or livelihood. Contrary to the belief of many, those factors have always been taken into account in deciding mode of trial, and rightly so. Therefore, I was distinctly surprised and perturbed when the Government in this Bill forbade consideration of those two factors. You can only do justice in relation to deciding on mode of trial if you can take account of any circumstance which seems to you to be relevant. There can be no restrictions.
I appreciate the reverence in which the jury system is held in this country. However, whether too much importance should be attached to a special form of jury service acting as a little parliament which seems to consist of returning perverse verdicts in the interests of sending political messages on GM crops and Polaris submarines must be open to doubt. I also have personal doubts whether young people or ethnic minorities are justified in thinking that juries are more sympathetic than magistrates. But they may think that, and they may even be justified in thinking that.
What I do accept, based on personal experience, is that if juries get it wrong and a miscarriage of justice results, it almost invariably takes the form of a misguided acquittal. I have been involved in one or two high profile trials and I have never met a case in which I disagreed for one moment with a jury's decision to convict. Whether the same is true of magistrates I just do not know, but in their case there is the safeguard of an appeal on the facts in the form of a complete re-hearing.
So what is new that has caused me to change sides? Essentially there are two things. First, the No. 2 Bill—I have already mentioned this point—in new Section 19(2)(b) forbids the court to consider circumstances affecting the accused when considering the seriousness of the offence. This goes much further than removing the false emphasis given to those factors in the No. 1 Bill. As has been said, it has led to Professor Zander pointing out that it invalidates the Runciman Commission's view and has caused him to withdraw support.
Secondly, I entertain grave doubts about the Government's motives in putting forward this Bill at this time. Why not wait for Lord Justice Auld's recommendations? What on earth is the hurry? The Government must know that such changes as have been made in the No. 2 Bill, as compared with the No. 1 Bill, will not cause this House to change its collective mind. The only explanation must be that they wish to lay the foundation for the Bill's reintroduction and passage under the Parliament Acts, notwithstanding this House's objection.
1013 This, in my view, raises an issue of some constitutional importance. I did not agree with the majority view on the No. 1 Bill, but I respected the sincerity and depth of professional and other experience which underlay it. Above all I was impressed by the fact that while I supported a change in the law which I thought would be an aid to efficiency, those who differed from my view opposed it in the belief that a fundamental right and freedom was under attack. Such depth of feeling, whether right or wrong, should not be disregarded.
In principle, I of course accept the supremacy of the elected House, but it is a supremacy which needs to be asserted rarely and sensitively and probably only when a failure to do so would frustrate a vital part of the Government's strategy. That is not the case here. To seek to override the opinion of this House would in my view, in present circumstances, be to display unmitigated arrogance and a total contempt for the existence and purpose of this House.
§ 8.16 p.m.
§ Lord Mackenzie of Framwellgate
My Lords, not for the first time in this House I sense that I am in a minority. I was abroad in August watching "Breakfast with Frost" by satellite—that is sad in itself—when I heard Mr Simon Hughes MP, the Liberal Democrat home affairs spokesman, talk about the Government,getting rid of jury trial".The Government are doing no such thing. This Bill simply carries out a manifesto commitment to modernise the criminal justice system to make it swifter, more efficient and more effective.
This Bill simply places the responsibility for deciding where either way cases should be heard where, in my judgment, it belongs; namely, with the magistrates' courts. In Scotland such a decision is determined not by the court or the accused but by the prosecutor.
When considering why it is necessary to change the law, let us have no nonsense about jury trial being a fundamental right. What is a fundamental right is the right to a fair trial. I have not heard any evidence tonight—in fact, quite the contrary is the case—that a fair trial will not be provided in either way cases by magistrates' courts, which try over 95 per cent of cases.
Justice is not served by an abuse of the criminal justice system. I suggest that leaving the decision as to venue with the accused or his legal adviser is both costly and can lead to an abuse of justice. I intend to address my remarks to that aspect this evening.
We all know that juries are fallible and can get things wrong. Indeed, most of the celebrated miscarriages of justice in recent years have followed jury convictions. But juries can also be got at. Indeed, one of the reasons for bringing in majority verdicts, against much opposition from what I shall describe as the "usual suspects", was to tackle "jury nobbling" by professional criminals. But we need to do more.
1014 The National Criminal Intelligence Service recently took the unprecedented step of publishing its annual report—its threat assessment of criminal activity which is normally restricted to Ministers. That report showed that organised crime in this country is booming as never before. Collapsed prosecutions and surprise acquittals are becoming the bane of British justice, with juries being bribed or threatened and witnesses intimated. Criminal families still dominate certain parts of this country.
The police are solidly in favour of this Bill, as is the Magistrates' Association. The principle was a recommendation of the Royal Commission in 1993. It is supported by Customs and Excise. Sir Iain Glidewell, who reviewed the Crown Prosecution Service in 1988, supports it, as do the majority of Her Majesty's judges. That is why Parliament has a duty to support the prosecuting authorities in streamlining justice and making abuse by criminals and their legal advisers more difficult.
Perhaps it will be useful if I give some examples of the abuses which could be prevented by restricting the right of the defendant to elect trial by jury in either way cases. In London it is common knowledge that "dips", or pickpockets, target tourists because they know that if they are caught all they have to do is cause delay by electing trial and the likelihood of the victim being brought back from abroad to give evidence is slim. That is a miscarriage of justice.
Devon and Cornwall Police have told me of a persistent shoplifter who recently moved into the West Country and is currently committed for trial at Exeter Crown Court for theft from a shop. The value of the goods is £2 or £3. Is that really a sensible use of public money?
Devon and Cornwall Police also describe how a man was arrested for theft of articles from a flat. He left without paying rent. He was driving a car without documentation. He was already subject to a suspended sentence at the time. He elected trial for theft even though the articles were found in his possession. He pleaded guilty to the theft at the Crown Court but the suspended sentence was not invoked because he argued, untruly, that the theft occurred before the original sentence. Because of his plea this could not be refuted by the prosecution. The motoring offences for which he could have been disqualified were left on the file as they were considered stale. That is lawyers playing the system.
Kent Police tell me of a professional criminal charged with handling, deception and driving while disqualified. There are eight prosecution witnesses and the evidence is overwhelming. The trial was listed for 26th June at Truro Crown Court. It has now been put back due to lack of court time. Some witnesses had already travelled from Kent on that date and are now considering withdrawing their evidence. Justice delayed is justice denied to the victims as well as to the accused.
1015 Northumbria Police describe how thieves stole two pairs of denim jeans from a shop and handed them nearby to two accomplices who were also arrested by a shoplifting squad. The two thieves pleaded guilty at the magistrates' court. The two handlers elected trial and as professional shoplifting is a major problem in the area the Crown Prosecution Service committed the handlers for trial. The Crown Court recorder refused to deal with the matter on the grounds that it was too trivial and a waste of court time. I agree with him. This Bill would prevent that type of abuse. Justice is not served.
Durham Crown Court recently had a case of a recidivist thief electing trial for the theft of a 75p can of lager. The Crown Prosecution Service offered no evidence at the hearing.
What a way to run a justice system. Suffice to say that the police are frustrated at the waste of time and effort, not to mention money, that goes on by this abuse of the right to jury trial. A recent study in Wales showed that 26 cases resulted in the prosecution accepting lesser pleas because witnesses failed to attend. Sixty-one per cent pleaded guilty prior to trial listing and 20 per cent pleaded guilty at the trial itself.
This is evidence of serial abuse of due process. It brings the criminal justice system into disrepute. It is the same professional thieves, retaining the same legal aid solicitors, briefing the same barristers chambers, all from public funds. The gravy train is still on track and has not been affected by the fuel dispute! My simple question is this. How many of these criminals would care to exercise their so-called fundamental right to be tried by jury if they had to pay for it from their ill-gotten gains?
On Wednesday, I heard the noble Lord, Lord Phillips of Sudbury, on the Jimmy Young show wearing his hat as the "legal beagle". He waxed lyrical about the legal profession doing too much "lawyering"—an interesting term—and said that they were about to exploit financially the forthcoming Human Rights Act unless judges were draconian—I think that was his word—in resisting frivolous claims. I agree with him. I only wish the same rhetoric were applied to the abuses discussed today, because abuses they are.
An old detective inspector once told me of a case where he had three suspects: a rich lawyer, a poor lawyer and a tooth fairy. He told me that he had arrested the rich lawyer because the other two were figments of his imagination. I do not know whether there is any truth in that; I certainly do not impute that there is.
We hear of fundamental rights. I should like to hear more about the fundamental rights of the victims of crime as opposed to those few in society who prey on them and then exploit our liberal justice system to avoid paying the penalty that most decent people believe to be just and proper. We need to change the rules for those who know no rules. This Bill does just that.
§ 8.26 p.m.
§ The Earl of Onslow
My Lords, the noble Lord, Lord Fraser, seems to assume that everyone whom plod arrests is automatically guilty.
§ The Earl of Onslow
My Lords, I apologise. I do not like getting a name wrong but I am quite happy to attack speeches. The noble Lord said that anyone whom plod arrested should automatically be slammed up because all the lawyers are rich, they all do it for fun and none of them has any views of their duties to the court. That is not what I recognise about British justice.
§ Lord Mackenzie of Framwellgate
My Lords, perhaps I may place on record that I, and I believe the police in general, object to being called "plod". It is the Police service and we provide a service to the nation. The term is unacceptable. The noble Earl used it in the previous debate. It does him little credit.
§ The Earl of Onslow
My Lords, it may do me no credit but I do not know anyone who does not refer to the police service as "plod". I promise the noble Lord, Lord Mackenzie, that I shall never again use the word "plod" in your Lordships' House. I may use it in a pub or bar outside. I may use it as a slightly affectionate general description—our police service is good—but the word which I promise never to use again is frequently used outside this House. I sought to suggest that the noble Lord assumed that everyone whom he arrested was guilty. He assumed that juries could be fallible and "got at" and that (the word that I am not allowed to use) was infallible. That is not the case.
The football song goes, "Here we go, here we go, here we go". Here we go again. The core substance of the Bill has remained unaltered. It was universally thrashed six months ago.
The Government have hanging over their heads a great accusation of illiberality and abuse of the liberties of the subject. I shall go through some of the charges: vouchers for immigrants; the football hooligans Bill; the Countryside and Rights of Way Bill, which, as the noble Lord, Lord Brittan, showed yesterday, is open to challenge under the European Convention on Human Rights; two strikes and you're out; those who are late for a probation appointment lose their social security; and now this Bill.
The last time that we debated the subject, I suggested that the noble and learned Lord, Lord Williams of Mostyn, was an insincere version of Mr Michael Howard. I have a terrible feeling that he may be becoming a sincere copy of Michael Howard. That is almost worse. I also think that he will never again use the word "totem", any more than I shall ever describe the police force—the boys in blue—with the word that so much offends the noble Lord, Lord Mackenzie. I have promised that I shall never use it again.
1017 I was totally convinced of the wrongness of the Bill when the Attorney-General mentioned the Bishops. In front of me on the Benches were "Tweedle Southwark" and "Dum Chichester"—or "Dum Chichester" and "Tweedle Southwark", not to be rude. I imagined each in their respective diocese on a hot Saturday afternoon in a bookshop, musing on the nature and substance of Christ. That is what bishops should do. Each picks up somebody's learned divine commentaries on the difference between the Nestorian, Arian and Monophysite heresies and all the issues that were discussed in butchers, bakers and candlestick-makers' shops in Constantinople in 500 AD. In a fit of divine inquiry, they both wander gently past the till, to be drawn sharply to their senses by a ping. They are then arrested by a passing member of that which I may not describe and accused of shoplifting, which is an each way offence. One of them is in Chichester, where the magistrate says that he may not be tried by a jury. The other is in Southwark, where the magistrate says that he may be tried by a jury. That potential difference between the treatment of two people accused of the same crime goes to the core of the wrongness of the Bill. That point is very important.
I accept that there are other crimes that could have the same effect on a person's reputation. If "Tweedle Chichester" and "Dum Southwark" both go flashing on Brighton pier, neither of them can be accused of gross indecency in front of a jury. They would have to go in front of a magistrate, but the key point is that they would both get slotted by the same court system. That is what is wrong with the Bill.
The intellectual arguments have been made and the detailed descriptions of the law have been enunciated, but "Tweedle Chichester" and "Dum Southwark" have shown me why the Bill is basically flawed.
§ 8.33 p.m.
§ Lord Phillips of Sudbury
My Lords, at this time of night there are few scraps of significance left on the bones of a debate that has illustrated the utility of this place. I start by looking at the issues from the point of view of the public. It is vital that we preserve public confidence in our justice system, particularly among that part of the public from which most criminals and their victims have traditionally come. It is easy for the middle classes to retain confidence in justice, but it is much more difficult for those people.
Public confidence is a sine qua non for an effective system of justice, upon which everything else depends. Without co-operation between the so-called ordinary citizen and the police and the courts, the system will fall into disrepute and ineffectiveness. Public confidence is not a function of pure logic or statistics, let alone a detailed understanding of the measures in the Bill. That is sometimes forgotten in this place. It is much more a gut matter. It is more about heart than head. The public's feelings towards the criminal justice system are formed by experience and anecdote.
Whatever many of us may feel—I think particularly of the contribution of the noble Viscount, Lord Tenby—at the heart of public comprehension of the 1018 criminal justice system is the jury. It has the totemic significance that the Attorney-General referred to rather disparagingly. It is certainly the best known and best understood feature of the system. The noble Baroness, Lady Kennedy of The Shaws, touched on the point that it is the only part of our legal system that is owned by the public because they participate in it on a random basis. Sometimes, it prevents them from losing confidence in cases in which juries have convicted or acquitted unpopularly. Far from the public viewing the choice of jury trial as a diktat—a remarkable and unpretty word used again by the Attorney-General—they view is as their right. It is not just any old right, but a crucial, invaluable and ancient right. We have been told tonight that it has been in existence only since 1855. That is a joke and it is not even true. The jury system has its roots in Anglo-Saxon culture. It sits at the heart of public esteem for the law and has around it a symbolism and power over public sentiment that we tinker with at our peril.
Such symbols are important, providing vital linkage between the citizen and the justice system. In this age particularly, when all around us there are signs of public disengagement from and disenchantment with the institutions of our society, the maintenance of those elements of the relationship between the ordinary citizen and such institutions is crucial.
I should like to say a few words about the several contributions that have been made about justices of the peace and their role. I spent the first five years of my legal career in a general solicitor's office traipsing round the magistrates' courts and working for a part-time clerk to the justices. Indeed, I sat as a substitute. No one in this place has a higher esteem for the justice system and for lay justices than I do. We persistently hear rumours about proposals to weed them out and eliminate them in favour of stipendiaries. If there is any truth in that, it would be a disaster of the first proportion. However, frankly we are not talking about whether or not the justices are esteemed. We are talking about how they are perceived. In the Committee stage of debate in the first hearing (if I may call it that) of this Bill on 20th January, the noble and learned Lord, Lord Bingham, said that we would confidently expect magistrates to decide questions with the same fairness, open-mindedness, human insight and common sense applied to every other issue they resolve. True!
However, the point is that, when confronted with a choice between trial before magistrates or trial before a jury, a great many of our citizens will feel that a jury is more open-minded as regards the issues in their case and is possibly possessed of more common sense—or certainly breadth of life experience—than a typical Bench can be.
I believe that the noble Lord, Lord Alexander of Weedon, made perfectly fair reference to some of the attributes which apply to many lay Benches. It is not to their discredit to point that out. It is merely to accept that we have an ancient, vital and central choice which is one of the prized attributes of citizenship of this land: that is, to choose between magistrates and a jury in cases in this middle rank.
1019 Frankly, it is no good playing games with this issue and talking about the "banana" case. It is no good playing games on the matter of the boundaries between either way cases and summary cases or cases which have to go to Crown Court. All divisions in this sphere will have their edges—extreme and silly examples and cases. The heart and core of this issue is about the right, which exists (we are not starting with a clean sheet) and which is so much valued, of citizens to choose trial, as they do, by jury.
I wish to make a point about resources and the effectiveness of the current system. I believe that the scale of the problem is apt to be exaggerated. No one can disregard any ineffectiveness, delay or unfairness. However, I believe that we need to put the matter into perspective. There are 465,000 either way cases a year—I use Home Office statistics. Only 4 per cent of those cases involve elections by defendants to go to Crown Court. I repeat: only 4 per cent. The other 96 per cent are dealt with in the magistrates' courts because defendants have made that choice, or 47,000 of them because the JPs themselves have elected to put the case to the Crown Court. Of that 4 per cent of cases—18,500—only 7,400 elect to go all the way to trial. Sixty per cent plead guilty between election and trial.
Much play has been made of that statistic of 60 per cent. It has been said that it is a waste and that it shows just how insincere the defendants were to plead in the first instance. I believe that the noble and learned Lord the Attorney-General was frank enough to admit at Second Reading that no research had been done into this matter. In fact, he suggested that if the matter was of continuing concern after the Bill had become law, no doubt research could be done. Research has now been done; it was referred to by the noble Baroness, Lady Kennedy, and the noble Lord, Lord Brennan. It has been carried out by Professor Bridges of the Warwick University School of Law and two other researchers. Any noble Lord who doubts the significance of the 60 per cent figure should study the summary of the report in the Legal Action Bulletin. It proves very clearly that the majority of those 60 per cent of defendants plead guilty when and only when the charges with which they were presented at the magistrates' court are reduced. The reduction in charges on such a heavy scale is because only when the matter goes to Crown Court will it be given the senior examination by experienced members of the Crown Prosecution Service who say, "No, this is ridiculous", and they drop the charge.
Therefore, it is not a question of people simply trying to avoid being found guilty of that of which they are guilty but of people feeling that they have been overcharged and not being willing to subject themselves to the overcharged cases before the magistrates.
The other point which has not been taken into account is that if the defendants in those 60 per cent of cases are forced back into the magistrates' court, they will not plead guilty because they will then not be presented with a choice. They will not be presented with the evidence on which the case is to proceed. The 1020 charges will remain and they will have to answer to them before the justices. Therefore, I am convinced, as others have said, that all the financial statistics which have been presented tentatively by the Home Office are unreliable, to put it mildly.
It is very easy in a debate such as this to look at the issues through the wrong end of the telescope, so to speak. It is very easy to assume that one is dealing with people whom one knows to be guilty. There is much talk about abuse of the system as if magistrates or juries know before they hear a case who is a villain and who is undertaking the abuse. It strikes me that we must face up to the fact that there is no clinically scientific system of sorting out villains from innocent people. The trial process is a rough and ready system. It is sheer nonsense and delusion to pretend that there is a perfect answer to these issues and that there is a system which will not be abused.
What is more, such an attitude is dangerous because we have always posited our understanding of the rights of the citizen in this country before the criminal law on the first, second and third basis that the priority is to avoid the conviction of innocent people. The acquittal of many guilty people stands well in the wake of the essential need not to convict the innocent. That is for the good reason that nothing will so quickly and surely undermine the whole process than the corruption which follows from regular conviction of innocent people. Noble Lords must realise that in our debates and avoid falling into the trap which, I am bound to say, I feel that the chairman of the Association of Chief Police Officers, Chief Constable David Phillips, fell into when he said—and this is quoted by the Home Office in support of this measure:In the end it is plain daft to allow a persistent criminal charged with a minor theft to invoke the full panoply of a criminal trial".Well, yes, if one knows that he is a persistent criminal. However, our system makes sure that we do not know. The essential buttresses are: presumption of innocence, no revelation of convictions before trial, and a dozen other essential props.
Here tonight we are dealing with a case put forward by the Government which I contend—and I believe that many others will agree with me—has simply not been proven. Any tinkering with this central aspect of our criminal legal system around which so much significance attaches by so-called "ordinary" people would in my view be an absolute folly.
§ 8.47 p.m.
§ Lord Lipsey
My Lords, if the Government were to lose the vote this evening, I believe that I should be inclined to advise them to appeal. We have heard in this debate no fewer than 17 of the finest advocates in the land on one side of the argument and a mere handful—although in many ways we do not regret that—on the other side.
Indeed, the speeches which we have heard from the opponents of the Bill have been great speeches. It has been wonderful for those who have been present to hear magnificent and memorable speeches. They would have been great speeches even if the Bill before 1021 the House was, as some noble Lords seemed on occasion to think, one to abolish jury trial altogether rather than to shift by a relatively small although, I admit, significant amount the boundary between the offences that are at present tried by jury and those that are not.
If I was to demand equal time for the defence, I should speak for three hours. However, I have a slight feeling that the House would not welcome that at present. Therefore, I shall try to cast aside my notes and say one thing in about three minutes which is directed at the liberals (with a small "1") on both sides of the House who oppose the Bill. I should like them to weigh the following with the arguments that they have put forward.
The one matter that is certain about the Bill is that, if it is lost, more people will go to gaol for longer. I quote from the Answer given in another place on 25th May, by Charles Clarke, a Home Office Minister, using the Home Office's model of costs and flows developed in collaboration with the Lord Chancellor's Department and the Crown Prosecution Service: custodial sentence rate 22.5 per cent from magistrates as opposed to 46.5 per cent from the Crown Court—half; average sentence 3.6 months from magistrates as opposed to 10.9 months in the Crown Court—about 40 per cent; remand time avoided—this cannot be questioned—nine weeks on average if the case is tried by magistrates.
Reading those figures, it is not surprising to learn that almost half the people who elect jury trial wish afterwards that they had not done so because the outcome is that they get locked up for longer.
I know that all these figures have been subject to vast amounts of research—and I shall not try to summarise this in three minutes. I know that they are all fraught with danger because unless without a double, blind, controlled experiment with huge matched samples, we cannot be sure of anything. One thing I would say is that we can be fairly sure that Home Office officials and the Home Secretary at any rate—who will have spent more time on this than anyone else after all—will be pretty sure that the effect is that way. This is a fantastically unattractive Bill for any Home Secretary to produce. That is no doubt why Mr Howard backed away from pushing it through, having flirted with it. In introducing this Bill, the Home Secretary had to eat his words. I have yet to meet a politician who likes eating his words.
In introducing this Bill, the Home Secretary lays himself open to just the kind of attack from Left, from Right, from centre and certainly from the media which are naturally unsympathetic to this kind of legislation. There are not even any populist brownie points in this Bill. It does not lock up criminals for longer, as the Home Secretary is sometimes accused by liberals of wanting to do. I shall not comment on that. No; the Bill lets them out sooner.
I have had the pleasure of knowing the Home Secretary for more than 30 years. Although I disagree with him on a great many of these issues, including 1022 some that have been mentioned this evening, I believe him to be a decent and thoughtful man. I do not believe that he would have contemplated this Bill unless he was absolutely convinced that the political pain in which it has undoubtedly involved him was worth it for the benefit of a better system of justice and for the advantages that have been spelled out so well by my noble and learned friend the Attorney-General. I am certainly inclined to prefer his view, and the twice expressed view of the elected other place which has to answer for its decisions at election, rather than the view, however well argued, of our own part-appointed, part-hereditary House. Therefore, this evening I shall give the Home Secretary the benefit of the doubt and support the Government.
§ 8.53 p.m.
§ Baroness Prashar
My Lords, I was a member of the Royal Commission on Criminal Justice which recommended that in cases involving either way offences the defendant should no longer have the right to insist to a trial by jury.
Tonight I want to draw your Lordships' attention to two other recommendations of the Runciman Report, because the Royal Commission's recommendations about trial by jury should be seen in the context of these two other recommendations which were designed to increase public confidence in the criminal justice system, particularly that of ethnic minorities. These were, first, that there should be further research to establish the extent to which members of the ethnic minority communities suffer discrimination within the criminal justice system; and, secondly, that a system of ethnic monitoring should be introduced in order to establish how minorities are treated and thus to identify the measures which are needed to ensure that as far as possible the rules, procedures and practices of the criminal justice system are applied in the same way to all.
These two recommendations were extremely important as they were intended to help identify areas of discrimination and the consequent action needed. But in the past seven years not much progress has been made in implementing these two recommendations. A Home Office publication under Section 95 of the Criminal Justice Act 1991—which was published at the end of last year—states:A major gap in the current information on the way the ethnic minorities are dealt with in the criminal justice system is the lack of data concerning the prosecution and sentencing process".So we neither have systematic monitoring nor adequate research in order to enable effective action to be taken to deal with discrimination within the criminal justice system experienced by minorities. Indeed, there is disagreement about the validity of the research available and its interpretation.
Recent information shows that ethnic minority defendants are more likely to be acquitted than white defendants in both the magistrates' and Crown courts. Research also shows that ethnic minority defendants are more likely than their counterparts to have charges against them discontinued or withdrawn by the CPS or to have the charges reduced. Research also shows that 1023 ethnic minority defendants who are tried in magistrates' courts also have high rates of acquittal. Those whose cases go to the Crown Court, either because they were sent there or elected to go there, also stand a better chance of acquittal. On the basis of this research, the Government have argued that there can be no discrimination in forcing more ethnic minority defendants to be tried before magistrates.
In my view, this assertion takes a very simplistic view of the way discrimination operates within the criminal justice system and the steps which need to be taken to deal with it. I would suggest that these results have been achieved for two reasons. First, there is indeed an increasing awareness of discrimination by those in the criminal justice system and of how it operates. 'The second, to which reference has already been made, is due to black and Asian defendants asserting their rights. As we are all aware, there is a strong body of evidence of over-charging by the policy of ethnic minority defendants, and this in turn shapes the whole relationship between minority defendants and other parts of the criminal justice system.
In response to this over-charging, black and Asian defendants have taken steps to rectify the consequences by asserting their rights at each stage of the process, and they see the right to elect for trial by jury as one such measure. So the removal of the right is likely to be detrimental to minorities and it will be seen as depriving them of an essential tool in defending themselves. I would therefore urge the Government to consider steps which should be taken to reduce the serious problems of over-charging and their adverse impact on minorities before further curtailing rights which are seen by minorities as safeguards against discrimination.
I am also concerned about the absence of a reputation clause in this Bill. The Royal Commission placed great emphasis on the view that access to jury trial was important for cases involving potential loss of reputation. The consequences of this particular removal have been well argued by a fellow commissioner, Professor Michael Zander, in an article in the New Law Journal, to which reference has already been made.
Against this background, I feel that I am unable to support this Bill and would urge the Government to reconsider the proposal.
§ 8.58 p.m.
§ Lord Dholakia
My Lords, we now come to the closing speeches. I can see relief on the face of the Attorney-General. There have not been many occasions on which I would disagree with him, but this is one on which I would part company.
I listened to him very carefully. Two of the substantive points he made do not stand up to the scrutiny of proper research. The argument that 60 per cent of those who elect trial by jury plead guilty at the Crown Court is extremely weak in the sense that, as my noble friend Lord Phillips said, we have never clearly examined precisely what happens when people appear at the Crown Court.
1024 The noble Baroness, Lady Howells, was rig ht to say that that is the stage at which the CPS actually gives proper consideration to a case. What happens about charges being dropped? How many charges are preferred in seriousness and how many are not proceeded with? When all those matters are examined, a completely different picture emerges from the simple allegation that 60 per cent of cases have been dropped and, therefore, we are wasting the courts' time.
There is another point which the noble and learned Lord the Attorney-General mentioned and I am asking where the evidence is to support it. He talked about saving court time. I should have been much happier had he been able to give some indication as to how he arrived at that conclusion. What is the evidence that led him to reach that conclusion?
Again, calculations were made in relation to the prison population in order to estimate the amount of money that would be saved. I genuinely believe that one must not simply pick up figures which have not been substantiated simply to make a basis for a particular case. That is the wrong way to formulate our criminal justice policies.
I remind the noble Viscount, Lord Tenby, that I have been a magistrate for more than 14 years. I never question the competence of magistrates. They perform a very difficult and yet important task. But I have spoken to many magistrates and something which they tell me, which is quite contrary to the views of others, is that there is a safety valve in relation to either way offences. Because the minority does not have confidence in the way that they are being dealt with in the magistrates' courts, they elect trial by jury. Those magistrates would prefer for that safety valve to be there because, over a period of time, it helps to establish the confidence of the minority in the magistracy. We tend to forget that point.
I was delighted by the excellent contribution of the noble Lord, Lord Brennan, which summed up the feeling on this. It is not a question of appealing just because you believe that too few people are being fielded on your side. It is clear that the opinion being expressed here is the opinion felt generally throughout the country, probably in the same proportion.
I was not surprised by the contribution of the noble Lord, Lord Mackenzie. I see that he is not in his place. That was very much a party political broadcast on behalf of the Police Federation.
The one thing that repeatedly comes out from people of ethnic minority communities is that magistrates tend to believe police officers more than they believe the defendant appearing before them. Whether or not that is true, that is the perception of the ethnic minority communities. We cannot get away from that perception because in speech after speech in your Lordships' House examples have been cited about the treatment of black people within the criminal justice system. I give due credit to the noble Baroness, Lady Kennedy, for the way that she has identified those cases.
1025 We have talked about issues affecting civil liberties and, in particular, the disproportionately adverse effect which this Bill will have on some sections of our community. I am concerned that even now, as I mentioned before on two previous occasions, the Government have not refuted the objections of principle to their proposal to remove the defendant's right to elect trial by jury in certain cases. As the noble Baroness, Lady Prashar, said, they have relied on some of the evidence and research which, when analysed, cannot stand up to scrutiny.
So what is the basis of my case? I consulted the very organisation which the Government set up to promote equality and good relations—the Commission for Racial Equality. I am told that it still has three objections to this Bill. First, the proposals were not "race-proofed" before they were introduced and the Government are now trying to justify them post hoc. Secondly, contrary to the Government's pledge to increase ethnic minority confidence in the criminal justice system, these proposals would further erode it. Thirdly, there is every indication that each year hundreds of defendants who would have been acquitted at the Crown Court will be found guilty if this legislation is passed. A disproportionate number of those people will be from ethnic minorities. Those are not my words, but the words of the Commission for Racial Equality, which is a body which I should have hoped that the Home Office would have consulted in the first instance, before even talking about the research which it thinks justifies its case
I can well understand the Government's problem. I have no difficulty with that. There is a continuing absence of ethnic minority data from the courts. In addition, there is a further problem. New analysis of the Home Office statistics confirm that since the minority population is not evenly distributed across the country, differences between areas as regards committals to the Crown Court may exacerbate the problem and have an adverse effect.
Therefore, I wish to concentrate on one specific but crucial area of the argument: whether ending the right to elect jury trial will disadvantage black and Asian defendants and further dent the confidence of racial minority groups in the criminal justice process.
There are two important issues in that regard. The first is whether that change will be to the disadvantage of racial minorities. The second is whether black and Asian people will perceive the change to be biased against them and thereby further dent their confidence in the fairness of the criminal justice process.
The evidence on whether black defendants are more likely to be acquitted in the magistrates' courts or Crown Courts is, of course, mixed and confusing. Nobody disputes that. Even if one examines the evidence which the Government produce under Section 95 of the Criminal Justice Act, one cannot draw much consolation from the type of information that is available from that.
1026 There appears to be no dispute that black and Asian defendants who appear in the Crown Court are more likely to be acquitted than white defendants in that court. Data from the Crown Courts in 11 pilot areas included in the Home Office's most recent Section 95 publication showed that 19 per cent of black defendants and 24 per cent of Asian defendants were acquitted compared to 16 per cent of white defendants. So, to an extent that meets the Home Office argument.
There are similar findings in the recent study (Race and Crown Prosecution Decisions) by Dr Mhlanga. Another study published in March by the Home Office showed that black defendants in the Crown Court are more likely to be acquitted than white defendants in that court by about six percentage points. That was also mentioned by the Attorney-General. However, the Government argue that black defendants are also more likely to be acquitted by magistrates than are white defendants. I have a problem: I have information that they have not taken into account the points I mentioned earlier but which have been admitted by the Home Secretary. In a note to the then chairman of the Society of Black Lawyers, Peter Herbert, the Home Secretary stated, when referring to the acquittals in the magistrates' court, that they include cases which were withdrawn or dismissed. The Home Office crime statistics suggest that the number of cases withdrawn or dismissed could be as large as the number of those acquitted and we cannot know what proportion of each ethnic group in that sample fell into either of those categories. If we take that as the basis for an argument, it does not stand up.
However, the Government argue that black defendants are also likely more to be acquitted by magistrates; and they produce figures showing a higher conviction rate for white than for black defendants. I believe that Jack Straw's letter to Peter Herbert destroys the argument put forward by the Home Office.
The Government also claim that figures for sentencing in magistrates' courts show no apparent bias between different racial groups. But when we examine the sentencing figures closely, they do not inspire us with confidence in their reliability. The last Section 95 report, which I mentioned earlier, published by the Home Office stated that of the 11 police force areas from which it had collected sentencing statistics,In all the Crown Courts and many of the magistrates' courts taking part in the pilot studies, the level of missing data is at least one quarter"—that is; one-quarter of the data from that particular study is no longer there—thus making it impossible to identify any ethnic difference in court decisions at a local level".The publication therefore cited figures for just four areas where the level of missing data was lower than even that, which showed no clear evidence of racial bias in sentencing. However it stated:The depth of analyses possible is limited because of the small number of cases for each ethnic group".1027 In other words, statistically, the figures collected by the Home Office were insignificant. It continued:Due to this, it is not possible to present data by offence or age group, both of which are known to vary among the ethnic groups. In addition, other factors such as previous convictions cannot be taken into account".Are we expected to rely on information as partial and unreliable as this when we are considering such a fundamental change to our criminal justice system?
We need much more detailed studies on sentencing. I have figures before me but it is too late in the evening to go into the detail. The case has been made by a number of other speakers. We have evidence here from the former members of the Royal Commission on Criminal Justice about how they view the whole process. But the most important aspect to bear in mind is that at a time when the criminal justice system needs to take every step it can to repair the confidence of racial minorities, abolishing the right to elect jury trial is a step in precisely the opposite direction.
Perhaps I may share with the House a secret which is likely to be published in the course of the next month or so. A publication called Public Eye has looked into the views of black people. As I have said, that survey will be published in November. To date, no one has elicited the views of the black community on the issue of removing the right to trial by jury in certain cases. In order to gather information about the views of this community, Public Eye, which is local government's only publication written from a black and Asian perspective, conducted a survey of 500 people. I shall give copies to noble Lords. To the question:Do you believe that the Government is right to consider removing the right to trial by jury",69 per cent said "no"; only 9 per cent said "yes" and 22 per cent were undecided. So even at this late stage there is food for thought for the Government.
Perhaps I may conclude by putting forward one further argument. I am sure that I shall have the support of the whole House on this matter. It concerns our international reputation and standing. My noble friend Lady Williams was good enough to remind me of the situation in Russia, Nigeria and a number of other countries on the world stage where courts and those who administer justice are corrupt. Justice is at a premium. The only hope innocent people have is the jury system. However imperfect it may be, in many cases it is a matter of life and death. Those countries will be entitled to say that if Britain, the mother of democracy, can abolish trial by jury, what is to stop them doing precisely that?
If the Bill is enacted, in one single swipe we will sacrifice our civilised and ethical values. Therefore, on this side of the House we support the amendment.
§ 9.15 p.m.
§ Lord Williams of Mostyn
My Lords, it is conventional for someone in my position to say how deeply I enjoyed the debate. My Lords, I deeply enjoyed the debate! I am sorry the Bishops have gone home; I was about to demonstrate that mortification is indeed good for the soul.
1028 Because I was a practising lawyer for some years I was disqualified from serving on a jury at the Old Bailey. But after this evening I know what it feels like. I have sat on 22 juries this evening and been the object of powerful speeches—the whole spectrum, your Lordships may think. I listened to every one of them, from the voice of deep unreason to carefully considered, moderate, calm submissions to which it was a pleasure to listen even if I could not necessarily wholeheartedly agree with every conclusion offered.
A number of questions have been asked in relation to Lord Justice Auld. When his inquiry was set up it was never suggested that further reforms would not be proposed in the interim. The noble Lord, Lord Thomas of Gresford, made reference to the fact that serious criminal charges should be tried by juries. I agree. He spoke of cases, for instance, of state secrecy and Official Secrets Acts. They would always continue to be tried by juries. So essentially there is no real difference between us. What we are going to do—to use the phrase I used in the article in The Times—is to improve the mechanics by which the decision is made about which forum is appropriate. I still maintain my position. It would have been wrong for the magistrates alone to decide that they would be the forum which would try an individual defendant. But it is absolutely right to have a right of appeal to the Crown Court—to an independent judiciary.
The noble and learned Lord, Lord Ackner, as his second point, asked why the James Report of 1975 had been suppressed. As far as I am aware it has not been suppressed. Everyone who wanted to read it. read it. There were a number of controversial proposals in it which were not accepted.
My noble friend Lady Mallalieu spoke of problems of disclosure; she spoke of the system in Scotland and she said perhaps that one wanted a new jury on every occasion. I understand her point perfectly well. I simply return to my point. We are not proposing the abandonment of trial by jury. What is being proposed—I repeat again with respect to your Lordships—is the automatic right, without question and without denial, of any defendant in an either way case to insist on trial by jury. That is what we are dealing with; nothing more and nothing less.
The noble and learned Lord, Lord Mayhew, said that a conviction of dishonesty can bring about disaster. I accept that. He said that magistrates may be regarded as permanent, case-hardened voices of authority. We must disagree on that and I put myself firmly in the camp of the noble Viscount, Lord Tenby. I do not believe magistrates are case-hardened voices of authority. But we must agree to disagree.
I point out also that, when a number of noble Lords said that it is appropriate for Parliament to classify offences rather than for the judiciary to decide, they are fundamentally mistaken. The classification of offences by Parliament is blunt indeed. The classification of theft may be the banana in Tesco; it 1029 may be £1 million. Those are not the same type of offence qualitatively; they are not the same in terms of consequences; and if one wants a classification by Parliament of that sort, one is using a blunt instrument. Why not the more subtle exercise of discretion by the magistrates, always subject to the views of the independent judiciary? Whatever one says for or against the judges in this country, it cannot be suggested that they are automatic agents of state power. If one wants further evidence of that I shall send a postcard to Mr Michael Howard.
The noble and learned Lord, Lord Simon of Glaisdale, spoke of an existing right being taken away. It is an existing right which is absolute and total at the moment. We are saying that in all circumstances one needs to see how the balance is properly to be drawn. He quoted the moving phrase of Lord Devlin, which we all know: each jury is a little Parliament. Of course; but not a little Parliament for every allegation of crime. For serious crime, where the interests of the individual and the state collide, one needs a proportionate response, which is the jury. For other offences, I do not believe that a little Parliament is either wanted or capable of being provided.
The noble Lord, Lord Hutchinson, was good enough to point out what he said were my previous inconsistencies. He was able to do so because I pointed to them during our previous discussion of the matter. I pointed out that when unduly lenient sentences were introduced—I believe it was when the noble and learned Lord, Lord Mayhew, was AttorneyGeneral—we all complained. Looking at the regime of the prosecution right of appeal, subject to the control of the Attorney-General, I believed it to have been a public service. I was wrong. If that is a U-turn, I would rather do a U-turn and be right than not do a U-turn and carry on being wrong.
I would think that most people, the overwhelming majority, as your Lordships say, everyone to whom I have spoken—in other words, informed and reasonable public opinion which happens to agree with me—would say that breathalyser offences are rightly tried by the magistrates. It was right to do away with peremptory challenges. Although it was a right of enormous historic importance, it was no longer appropriate in a modern society; the criminal justice system has changed.
The issue of majority verdicts was vigorously contested, but I have met no one, whether in the Bar or out of it, who does not believe that the introduction of majority verdicts was a significant improvement to the system of jury trials. As far as I know—of course I could be wrong—it was not a feature of any subparagraph of the Magna Carta.
Therefore, occasionally it is right to listen to the arguments, to revisit topics and to think that perhaps we might do things better. Not all aspects of the criminal justice system are perfect and they may be capable of even modest improvement.
1030 The noble Baroness, Lady Kennedy of The Shaws, described me as her "noble and learned"—and there was a significant pause before she said "friend". I suppose that she was looking for a bon mot. But she is my noble friend, and she said the prosecutor alone decides the venue. We considered that route and thought that it was not right for our circumstances. We preferred the independent judiciary to have this degree of responsibility and to discharge it.
My noble friend said that the situation is different in Scotland because professional judges try the cases; in other words, the sheriffs. That is true. In some circumstances, they can impose a sentence of more than three months. In any event, most sentences of imprisonment imposed in the magistrates' courts in this country would not be more than three months. However, if one meets the "Kennedy of The Shaws point"—perhaps I may put it in that way without seeming discourtesy—as soon as one suggests here that perhaps we might use some stipendiaries, the conspiracy between the noble and learned Lord the Lord Chancellor, the Home Secretary and myself is immediately disclosed: "You want professional judges to try these cases?". Sometimes one hopes in vain for a thread of consistency!
We heard some powerful speeches. The noble Lord, Lord Alexander, always makes powerful speeches. He is never personally offensive and he makes his points. I have to disagree with him and I believe that one or other of us is wrong. Some people believe that the world is flat, some people believe that it is round and rational argument is not often capable of bringing a conjunction of view between the two camps.
§ Lord Alexander of Weedon
My Lords, I am grateful to the noble and learned Lord for giving way. If he is dealing with our questions—those asked by a number of us—and he was good enough to say that they were courteously asked, will he give a specific response to the question why, given that this very issue is in the specific terms of reference of the Auld review, the Government do not want to know the views of Sir Robin Auld before proceeding to legislation?
§ Lord Williams of Mostyn
My Lords, I said right at the outset that when Lord Justice Auld carried out his review it was never suggested that no further proposals for interim reform would be brought forward.
§ Lord Ackner
My Lords, with the greatest respect, that is not an answer to the question. Now we know that Sir Robin is to produce a report by the end of the year, why must this measure be forced through by use of the Parliament Act?
§ Lord Williams of Mostyn
My Lords, it is an answer, but it may not be the answer that everyone wants. It is exactly the same position that obtained when noble Lords debated the issue the first time round. Sir Robin Auld was never asked to do the work on the basis that no further proposals for reform would be brought forward.
§ The Earl of Onslow
My Lords, if Sir Robin Auld comes to the view that this particular measure which 1031 is proceeding through Parliament is silly, will not the Government look awfully silly having enacted it? What will the Government do then?
§ Lord Williams of Mostyn
My Lords, it may well be that the Government would look slightly on the silly side. I wonder whether they would look any sillier if Sir Robin Auld found this to be a tremendous scheme. If that happened would everyone on the opposite side say, "That is marvellous, Williams, you were right all along"? I doubt it.
I must deal with the points raised by my noble friend Lord Brennan. I have given way on every conceivable, and many inconceivable, occasions. My noble friend's speech was a pleasure to listen to. He is aware that I say that with all humility. My noble friend referred to the noble and learned Lord, Lord Steyn. I agree with my noble friend that the noble and learned Lord is a jurist of extraordinary quality. It is a pleasure to read his judgments even when he finds against the Government, which is quite often. The noble and learned Lord is an enormous constitutional and jurisprudential scholar. My noble friend Lord Brennan quoted the noble and learned Lord as saying that it would require exceptional circumstances and powerful evidence to lead to the abandonment of trial by jury. I agree. Because of the terrorist activities in Northern Ireland the Diplock courts were established.
We are not speaking of, have never contemplated and no one can rationally believe that we propose the abandonment of trial by jury. We are not dealing simply with court management, as the noble Lord, Lord Hutchinson, attempted to paraphrase my remarks. I said that we must attempt to manage a scarce and precious resource—trial by jury—in the most appropriate, decent and civilised way.
My noble friend Lord Brennan said that significant criminal cases should continue to be tried by jury. I agree. This reform does nothing to attack or impeach that proposition. My noble friend preferred to rely on a reclassification by Parliament. I profoundly disagree. Some reclassifications are so blunt as to be capable of bringing about injustice.
My noble friend Lady Prashar is quite right. There is evidence of over-charging of ethnic minority citizens which is not capable of rationalisation on any basis other than unfair treatment.
I have a belief, which may be wholly misjudged, that I am unlikely to convince anyone further even if I continue. This has been an extremely good natured and civilised debate. Almost without exception, I do not believe that noble Lords have imputed wrong motive; certainly I do not. This is not a matter of lawyers' protectionism or illiberalism. (I take that sound as a gesture of approval, subject to further correction.) Those who are engaged in the criminal justice system know that there is unlikely to be a perfect answer to the problems with which they grapple. It is wholly unfair to accuse the Home Secretary, of all people, of illiberalism since he has been a major architect of the greatest constitutional change in this country for the past 100 years.
1032 We have a good case, but my understanding is that your Lordships will not accept it. The noble Lord, Lord Cope, has been kind enough to tell me that he intends to press this matter to a Division. If we lose we shall have to bear it with such fortitude as we can muster.
§ 9.29 p.m.
§ Lord Cope of Berkeley
My Lords, I entirely agree with the noble and learned Lord the Attorney-General that we have had a long and interesting debate with some fine speeches. Sadly for the balance of the debate, few speakers supported the Bill. I should like to say, as did the noble and learned Lord, that I respect their views even if I do not agree with them. The noble and learned Lord impressed us once again with his great ability as an advocate, on whichever side of the argument he finds himself arguing at the time. But each of the arguments that he used at the beginning of the debate was refuted with authority from his own Benches, never mind from all other parts of the House.
Several speakers, including the noble Lord, Lord Borrie, who supports the Bill—he is one of the few—made the point that the Bill is worse than the previous one. The noble and learned Lord, Lord Donaldson, told us that the changes made to the Bill since our debate some months ago put him against the Bill although he supported the previous one. The changes also mean that the Government can no longer say that they are following the recommendation of the Royal Commission on Criminal Justice, as the noble Baroness, Lady Prashar, who was a member of that commission, told us in her speech.
The Bill is about who decides when there should be a full trial by judge and jury in the intermediate, middle ranking cases; and if it is always to be by magistrates and a judge, how they should decide the matter. Should it be decided by those judicial authorities or, in the limited circumstances allowed by the current law, by the person most involved; that is to say, the accused who insists on his or her innocence? But the Bill is also about public confidence in the criminal justice system, particularly among those of our fellow citizens who come from the ethnic minorities, as has been fully documented in the debate.
We do not believe that we should weaken public confidence in the criminal justice system by removing this long-standing right in exchange for small and doubtful benefits of delay and government expenditure, particularly not just before Lord Justice Auld is due to report on the whole matter. I urge your Lordships to defeat the Bill by supporting the amendment.
§ 9.33 p.m.
§ On Question, Whether the said amendment shall be agreed to?1033
§ Their Lordships divided: Contents, 184; Not-contents, 88.1034
|Division No. 1|
|Ackner, L.||Hamwee, B.|
|Addington, L.||Harris of Greenwich, L. [Teller]|
|Alexander of Weedon, L.||Harris of Peckham, L.|
|Alton of Liverpool, L.||Harris of Richmond, B.|
|Ampthill, L.||Hayhoe, L.|
|Anelay of St Johns, B.||Henley, L. [Teller]|
|Arran, E.||Higgins, L.|
|Astor, V.||Hodgson of Astley Abbotts, L.|
|Astor of Hever, L.||Hogg, B.|
|Attlee, E.||Holme of Cheltenham, L.|
|Avebury, L.||Hooper, B.|
|Barber, L.||Hooson, L.|
|Barker, B.||Howe, E.|
|Beaumont of Whitley, L.||Hunt of Wirral, L.|
|Bell, L.||Hutchinson of Lullington, L.|
|Belstead, L.||Inglewood, L.|
|Biffen, L.||Jacobs, L.|
|Blackwell, L.||Joffe, L.|
|Blaker, L.||Jopling, L.|
|Blatch, B.||Kelvedon, L.|
|Boardman, L.||Kennedy of The Shaws, B.|
|Bowness, L.||Kingsland, L.|
|Brabazon of Tara, L.||Kirkham, L.|
|Bradshaw, L.||Laing of Dunphail, L.|
|Brennan, L.||Laird, L.|
|Bridgeman, V.||Lamont of Lerwick, L.|
|Brougham and Vaux, L.||Lane, L.|
|Burnham, L.||Lane of Horsell, L.|
|Buscombe, B.||Lang of Monkton, L.|
|Byford, B.||Lester of Herne Hill, L.|
|Caithness, E.||Linklater of Butterstone, B.|
|Campbell of Croy, L.||Liverpool, E.|
|Carlile of Berriew, L.||Lucas, L.|
|Carlisle of Bucklow, L.||Luke, L.|
|Carnarvon, E.||Lyell, L.|
|Carrington, L.||McColl of Dulwich, L.|
|Chadlington, L.||McConnell, L.|
|Chalker of Wallasey, B.||Mackay of Ardbrecknish, L.|
|Clark of Kempston, L.||Mackie of Benshie, L.|
|Clement-Jones, L.||McNally, L.|
|Colwyn, L.||Mallalieu, B.|
|Cope of Berkeley, L.||Mancroft, L.|
|Craig of Radley, L.||Mar and Kellie, E.|
|Craigavon, V.||Marlesford, L.|
|Cumberlege, B.||Masham of Ilton, B.|
|Dacre of Glanton, L.||Mayhew of Twysden, L.|
|Dahrendorf, L.||Miller of Chilthorne Domer, B.|
|Darcy de Knayth, B.||Miller of Hendon, B.|
|Dean of Harptree, L.||Montrose, D.|
|Deedes, L.||Mowbray and Stourton, L.|
|Denham, L.||Moynihan, L.|
|Dholakia, L.||Murton of Lindisfarne, L.|
|Dixon-Smith, L.||Naseby, L.|
|Donaldson of Lymington, L.||Newby, L.|
|Eden of Winton, L.||Nicholson of Winterbourne, B.|
|Elis-Thomas, L.||Northbrook, L.|
|Ezra, L.||Northesk, E.|
|Falkland, V.||Northover, B.|
|Flather, B.||Norton of Louth, L.|
|Fookes, B.||Oakeshott of Seagrove Bay, L.|
|Freeman, L.||Onslow, E.|
|Geddes, L.||Onslow of Woking, L.|
|Gilmour of Craigmillar, L.||Park of Monmouth, B.|
|Goodhart, L.||Peel, E.|
|Goschen, V.||Phillips of Sudbury, L.|
|Gray of Contin, L.||Plumb, L.|
|Greaves, L.||Prashar, B.|
|Greenway, L.||Prior, L.|
|Rawlings, B.||Smith of Clifton, L.|
|Razzall, L.||Sterling of Plaistow, L.|
|Redesdale, L.||Swinfen, L.|
|Renfrew of Kaimsthorn, L.||Taylor of Warwick, L.|
|Rennard, L.||Tebbit, L.|
|Renton, L.||Thomas of Gresford, L.|
|Roberts of Conwy, L.||Thomas of Gwydir, L.|
|Rodgers of Quarry Bank, L.||Thomas of Walliswood, B|
|Roper, L.||Thomson of Monifieth, L.|
|Russell, E.||Tordoff, L.|
|Ryder of Wensum, L.||Trefgarne, L.|
|Saatchi, L.||Tugendhat, L.|
|Sandberg, L.||Waddington, L.|
|Sanderson of Bowden, L.||Walker of Worcester, L.|
|Scott of Needham Market, B.||Wallace of Saltaire, L.|
|Seccombe, B.||Walmsley, B.|
|Selborne, E.||Watson of Richmond, L.|
|Selsdon, L.||Weatherill, L.|
|Sharp of Guildford, B.||Wigoder, L.|
|Shaw of Northstead, L.||Williams of Crosby, B.|
|Shutt of Greetland, L.||Williamson of Horton, L.|
|Simon of Glaisdale, L.||Windlesham, L.|
|Skelmersdale, L.||Wolfson, L.|
|Skidelsky, L.||Younger of Leckie, V.|
|Ahmed, L.||Hoyle, L.|
|Ashton of Upholland, B.||Hughes of Woodside, L.|
|Bach, L.||Hunt of Chesterton, L.|
|Bassam of Brighton, L.||Irvine of Lairg, L. (Lord Chancellor)|
|Billingham, B.||Islwyn, L.|
|Blackstone, B.||Jay of Paddington, B. (Lord Privy Seal)|
|Brooke of Alverthorpe, L.||Layard, L.|
|Brookman, L.||Lea of Crondall, L.|
|Brooks of Tremorfa, L.||Lipsey, L.|
|Burlison, L.||Macdonald of Tradeston, L.|
|Butler of Brockwell, L.||Mclntosh of Haringey, L. [Teller]|
|Carter, L. [Teller]|
|Christopher, L.||MacKenzie of Culkein, L.|
|Cocks of Hartcliffe, L.||Mackenzie of Framwellgate, L.|
|Colville of Culross, V.||Massey of Darwen, B.|
|Crawley, B.||Milner of Leeds, L.|
|David, B.||Monson, L.|
|Davies of Oldham, L.||Morris of Manchester, L.|
|Dean of Thornton-le-Fylde, B.||Nicol, B.|
|Dormand of Easington, L.||Palmer, L.|
|Dubs, L.||Parekh, L.|
|Eatwell, L.||Pitkeathley, B.|
|Elder, L.||Plant of Highfield, L.|
|Evans of Parkside, L.||Ponsonby of Shulbrede, L.|
|Farrington of Ribbleton, B.||Ramsay of Carrvale. B.|
|Filkin, L.||Rendell of Babergh, B.|
|Gale, B.||Sainsbury of Turville, L.|
|Gibson of Market Rasen, B.||Sawyer, L.|
|Gilbert, L.||Serota, B.|
|Gladwin of Clee, L.||Sewel, L.|
|Gordon of Strathblane, L.||Shepherd, L.|
|Goudie, B.||Simon, V.|
|Graham of Edmonton, L.||Strabolgi, L.|
|Hardy of Wath, L.||Symons of Vernham Dean, B.|
|Harris of Haringey, L.||Thornton, B.|
|Harrison, L.||Tomlinson, L.|
|Haskel, L.||Turner of Camden, B.|
|Hayman, B.||Warwick of Undercliffe, B.|
|Hilton of Eggardon, B.||Whitty, L.|
|Hogg of Cumbernauld, L.||Wilkins, B.|
|Hollis of Heigham, B.||Williams of Mostyn, L.|
|Howells of St. Davids, B.||Woolmer of Leeds, L.|
|Howie of Troon, L.||Young of Old Scone, B.|
§ Resolved in the affirmative, and amendment agreed to accordingly.