COMMITTAL FOR SENTENCE

HC Deb 25 July 2000 vol 354 cc993-1003

'. The following shall be inserted after subsection (1) of section 38 of the Magistrates' Courts Act 1980 (committal for sentence on summary trial of offence triable either way)— (1A) Provided that where the court has previously decided under section 20 above that an offence ought to be tried summarily it shall not then use its powers under this section in respect of the same offence.".'.—[Mr. Kidney.]

Brought up, and read the First time.

9.15 pm

Mr. David Kidney (Stafford)

I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker (Sir Alan Haselhurst)

With this it will be convenient to discuss amendment No. 12, in clause 1, page 2, line 5, at end insert— '( ) The court shall not, in the event of a conviction, be permitted to commit the accused to the Crown Court for sentence.'.

Mr. Kidney

I call new clause 3 the Scottish amendment. In current Scots law, a class of case exists whereby the accused can be denied a trial by jury through the decision of the prosecutor, not the court. The quid pro quo is that the accused knows that, if convicted and sentenced, the maximum sentence cannot exceed three months' imprisonment. There is therefore a cap, about which the accused, the court and the prosecutor—who determines the court that will deal with the trial—know in advance.

The Bill takes a step towards the Scottish system, but does not go the full distance. It proposes that magistrates should make the decision about whether the accused can be tried by jury or whether he will have to be tried in the magistrates court. However, it does not change the law that provides that the magistrates, after convicting, could send the accused to the Crown court to receive a longer sentence than that which the magistrates can impose—a maximum of six months for one case. The new clause attempts to create a closer relationship between decisions made in England and Wales and those made in Scotland about trial and sentencing occurring in the same place.

I declare an interest because I am a former solicitor with 20 years' experience in criminal cases. However, I do not currently practise and I have no interest in criminal law other than that of a legislator and citizen. I fall into the category of hon. Members whom my right hon. Friend the Home Secretary described earlier as those who are opposed in principle to the Bill. In fact, I object to the entire Bill, but, in tabling the new clause, I resort to a minor principle of honesty in sentencing. I am supported in that by an editorial in The Times on 25 February. In considering the second Bill, not the original measure, it referred to the danger of people being forced to be tried in the magistrates court against their wishes and being sent to the Crown court for sentencing. The editorial states: It remains unfair for a person to risk a long sentence without benefit of a full trial.

In making the change to the law, my right hon. Friend the Home Secretary enjoys the support of most of the police. I have a briefing from the Police Superintendents Association of England and Wales, which was issued in April. I presume that other hon. Members also have a copy. It states that we should all support the Home Secretary's endeavours to "cut the wastage" in the criminal justice system. I am not sure whether the Home Secretary and Home Office Ministers believe that a jury trial constitutes "wastage" in the system. However, my right hon. Friend might agree with the following claim by the association: In further restricting the right of some defendants to elect trial he will go a long way to removing the abuse of the system that many criminals, and some in the legal profession, perpetrate daily in our courts. I could stomach such prejudice if abuses such as overcharging the accused, dropping cases and reducing charges at the last minute were also mentioned. Nevertheless, I refer to that briefing because, at the end, it states: As we see in other jurisdictions, such as Scotland, injustice will not ensue from the removal of the right to elect trial for what amount to relatively minor crimes. In that briefing, the police also rely on the Scottish system as being an exemplar of how the system in England and Wales should be.

I would argue that, as a matter of principle, the trial court should deal with the sentence in most cases. The rationale for giving defendants in either-way cases a right to elect is that, if they are at risk of receiving a sentence that is higher than the magistrates can impose, they should at least be given the opportunity to choose to be tried in the Crown court. It is one thing for a defendant, who has voluntarily waived his or her right to jury trial, having been warned of possible consequences, to be committed on conviction to the Crown court to receive a more severe sentence, but if that right is removed the logic should be to limit the power of the magistrates to commit those whom they convict of either-way offences to the Crown court for sentence.

My right hon. Friend the Home Secretary and other Home Office Ministers might say that the difference is that they are not going the whole hog on the Scottish system, where the procurator fiscal decides whether there should be a trial by jury. The procurator fiscal has access to the accused person's previous convictions, whereas under the Bill, as we shall hear at great length later tonight when the relevant amendments are debated, magistrates courts will not have access to previous convictions when taking decisions about the place for the trial.

My worry is that, in England and Wales, those accused who are denied the right to trial in Crown court will have no guarantee that they will not up end in the Crown court and receive a longer sentence than the magistrates could have imposed. As well as undermining much of the Government's projected cost saving, that is bound to result in justifiable feelings of unfairness among the defendants concerned, given that the magistrates will have told them that their cases are not deserving enough to be tried in the Crown court, but that they are still serious enough to require being sentenced there.

The Home Office has conducted various research. One of its research projects suggests that most people who elect to be tried in the Crown court have many similar characteristics to those whom the magistrates send to the Crown court for a sentence beyond their powers. For example. 90 per cent. of those who elect to be tried in the Crown court have previous convictions. Therefore, it is easy to suggest that, if magistrates determine the place of trial in future, they might decide to commit many more people to the Crown court for sentence after conviction than the Home Office currently estimates will happen.

Mr. Edward Garnier (Harborough)

It is very easy to be misled by statistics, especially those provided by the Government. The figure for those appearing before the Crown court with the records that the hon. Gentleman describes relates to all defendants in all trials. It relates not only to those who elect trial by jury, but to those who have no choice in the matter who are sent to the Crown court either by the magistrates on committal or because the matter for which they are being tried must go before the Crown court. I am sure that the hon. Gentleman would not wish to take at face value the statistics provided by the Government on that matter.

Mr. Kidney

I entirely accept that point. In so far as the hon and learned Gentleman suggests that perhaps more than a tenth of those who elect trial by jury are people of previous good character, that only goes to support another of my objections to the Bill: people should be entitled to choose trial by jury for what I regard as serious offences.

If people are committed to the Crown court for sentence by the magistrates, who have taken upon themselves the right to conduct the trial, because they decide at the end of the trial that the person should receive a greater sentence than they are capable of imposing, that will mean that one of the Home Office estimated cost savings will be lost. After all, the biggest factor in the cost savings is that people will receive shorter sentences of imprisonment from the magistrates court rather than the Crown court. If magistrates do not pass sentence and send people to the Crown court for longer sentences, that cost saving will not arise.

I am fortified in that view by a briefing from the Association of Magisterial Officers, which many of us received back in April. The association describes itself as the trade union of magistrates courts staff, so when I picked up the briefing I thought that it would favour the Government's proposal to give more work to magistrates courts and improve the reputation and prestige of its members. However, the association opposes the Bill and says that although the Government claim that it will achieve cost savings, such savings are illusory. If magistrates have to try people who wanted to be tried in the Crown court, they will send more cases to the Crown court for sentencing.

Mr. Nick Hawkins (Surrey Heath):

The hon. Gentleman rightly referred to the important briefing from the Association of Magisterial Officers, but he did not say that that association is particularly important because it represents a large majority of legal staff who work in magistrates courts, up to and including those employed as the deputy justice's clerk. The Government, if they are to be believed, give the impression that everyone involved with magistrates courts supports the Bill, but, as the hon. Gentleman has made clear, senior staff such as those clerks strongly oppose it. Does he agree that that represents a serious criticism?

Mr. Kidney

Yes. Almost three quarters of magistrates courts staff are claimed to be members of the association, so it represents a significant body of opinion. Practitioners who might have had an interest in the Bill becoming law oppose it in principle. That is compelling evidence.

The Legal Action Group opposes the "clear unfairness" of allowing magistrates to deny trial by jury and commit people to the Crown court for sentence. The new clause would prevent that. If the Bill is a matter of principle for the Government, that principle ought to be that the court that hears the trial should hand out the sentence. If the Government argue that delay is the problem and that they are solving it, surely interposing a procedure whereby a magistrate would send a defendant to the Crown court for sentence would cause delay, not remove it. If their argument rests on cost, I argue that committals for sentence would cause extra cost in themselves because of the practicalities and because sentences dished out in the Crown court would be longer than those given by the magistrates court. For all those reasons, I ask hon. Members to support the new clause.

Mr. Humfrey Malins (Woking)

I shall speak briefly to support amendment No. 12, which I have tabled and which would achieve much the same as the new clause moved by the hon. Member for Stafford (Mr. Kidney). We are concerned about committing to the Crown court for sentence people who have been forced to accept trial in the magistrates court. A number of members of the judiciary and law practitioners think that it would terribly unfair to say to a defendant, "We've forced you to be tried in this court, but we reserve the right to send you to the Crown court for sentence." At present, the magistrates court tells a person charged with an either-way offence such as a theft that the offence can be tried there or in the Crown court and that he can opt for either venue. However, if the defendant consents to be tried in the magistrates court and is convicted and the magistrate then discovers that he has a string of previous convictions, the court reserves the right to send him to the Crown court for sentence. So far, so good—defendants know what is going on.

What troubles me is that, under the Bill, the court may say to the defendant, "We have considered the nature of the case and the circumstances of the offence, and we believe that the punishment that we have the power to impose for the offence is adequate, and we have come to the conclusion that you must be tried here." "Okay, " says the defendant, "if that is what you say." It is a little incongruous to say at the end of a case, if the person is convicted, "Sorry about that. We're going to send you to the Crown court."

9.30 pm

Mr. Robert Marshall-Andrews (Medway)

Does not that underline the practical absurdity of magistrates not being able to take previous convictions and character into account when deciding whether someone should be sent to the Crown court? May I ask the hon. Gentleman to reflect on a particular example? Suppose that the defence for someone charged with possession of drugs who has previous convictions for drugs offences is that the drugs were planted because he had refused to be a police informer. That is a perfectly ordinary case. He says that he wants to go to the Crown court, but he cannot tell the magistrates that he has previous convictions. The magistrates refuse him, and he is tried in the magistrates court. When the magistrates find out about his previous convictions, they say that they wish they had sent the chap to the Crown court because he is going there anyway. Does not that illustrate the absolute absurdity of the present state of affairs, and the fact that the Bill will cause enormous delay and immense expense?

Mr. Malins

I do not think that anyone in the House could have illustrated the absurdity of the situation better than the hon. and learned Gentleman, whose record is very distinguished. He has hit upon a very good point. It seems slightly odd to me that that can be expected to happen. It also seems slightly unfair, and I should be grateful if the Government would reconsider that possibility.

Mr. Gariner

I support the thrust of new clause 3, which was so sensibly introduced by the hon. Member for Stafford (Mr. Kidney), and the amendment tabled by my hon. Friend the Member for Woking (Mr. Malins). Their concerns are abundantly sensible and, I suggest, not capable of contradiction. As my hon. Friend the Member for Woking said, they were brilliantly reinforced by the example given by the hon. and learned Member for Medway (Mr. Marshall-Andrews).

One of the further reasons why the new clause and the amendment deserve consideration is that on Second Reading the Home Secretary relied on the Scottish example to justify not allowing the criminal defendant the right of election. He said: Scotland is, rightly, held out to be a nation with a more effective criminal justice system than ours. There, the decision on mode of trial has never rested with the defendant, but is made by the prosecutor.—[Official Report, 7 March 2000; Vol. 345, c. 886.] He said that that offered a complete response to the question that he was endeavouring to answer. He made use of that example by relying on a false premise.

In Scotland, the prosecutor chooses the venue, but the sheriff who tries the summary case is the equivalent of a stipendiary magistrate or a circuit judge in this jurisdiction, not a bench of lay magistrates. Moreover, the maximum sentence available on summary trial in Scotland is three months, not six, and unlike in this country, the summary court has no power to commit a convicted defendant to a higher court for a more severe sentence if it feels that its powers are insufficient.

On Second Reading, the Home Secretary was trying to persuade the House of Commons that the Scottish example was of some value to us in our deliberations on the Bill. For the reasons that have been outlined by the hon. Member for Stafford in his new clause, and those outlined by my hon. Friend the Member for Woking, the Home Secretary's arguments are without merit. I invite the House to pay considerable attention to what the hon. Gentleman and my hon. Friend have just said.

Mr. Simon Hughes (Southwark, North and Bermondsey)

I apologise to the hon. Member for Stafford (Mr. Kidney) for arriving slightly late. I heard the end of his speech and all that of the hon. Member for Woking (Mr. Malins), and I understand the argument.

I support in general—because it is logical—the proposition that people should know in advance the potential consequences for them of a certain plea, but I want to make a point that is slightly different from those that have been made so far. If ever there was an argument for not legislating now, it is evidenced by this debate.

We should consider the terms of reference for the Auld committee. A review is in progress: Lord Justice Auld is going around the country collecting evidence. He is also going abroad and looking at other jurisdictions, and considering the Scottish experience. He has asked some profound questions, which relate to issues such as this but which also go wider. He asks, for example, whether there should be only one form of court. Should the magistrates court and the Crown court be merged to avoid the committal process? Should there be two types of judge, a full-time professional judge and a part-time lay judge? Should the work be divided between them, but in the same court?

Should there be different rules about who might be on a jury? Many of us are disqualified from jury service. Is the way in which we form juries correct, or ought we to review the methods of selection in order to include people who may currently be excluded? Some say that juries are currently very unbalanced, because many "professional" people submit the equivalent of sick notes, with the result that juries do not represent the true balance of the community as we would wish them to.

Should there be more stipendiary magistrates, or more lay magistrates? We could have an important debate about that. Which would command more confidence among the electorate, and the public as a whole? Which would cost more?

Mr. Deputy Speaker

Order. May I invite the hon. Member to home in on the new clause? He is buzzing around it rather too much.

Mr. Hughes

I am trying not to do that, Mr. Deputy Speaker. I am trying to make the point that the question whether a limit should be placed on the sentencing power of the lower court is one of a set of interrelated questions that ought to be considered together. We could say, "Yes, this is logical in itself", but many earlier questions should be answered before we answer the question posed by the hon. Member for Stafford.

I shall be interested to hear the Government's reply, but I would be far more interested to hear that an up-to-date objective assessment will be available to us by December this year. Lord Justice Auld has said that he expects to report in December, that he is on time, and that he expects to have the evidence. It would be good for the parties to have an opportunity, in the run-up to the general election, to decide how to respond. We could each submit our views in our manifestos: we could have considered internal party debates, and could go to the electorate with our views.

We could have a real debate about the best criminal justice system. That debate might include a view about whether the sentencing power of the lower court—assuming that the two-tier court structure is retained—should accord with the Scottish system. In Scotland, once someone knows that he will be dealt with in the lower court—whether he has chosen that, or has been told that it will happen—he knows that the tariff cannot be changed, that the possible sentence cannot be upped, and that there is no risk of a complete change in the balance of prejudice or disadvantage.

Finally, let me make a practical point. Like others, I speak from experience. As anyone who has been in court will know, an important consideration for defendants is what the potential sentence will be. That consideration is bound to influence a plea. People sometimes plead guilty although they are not guilty, for all sorts of reasons. If they think the sentence will be limited, they may feel that the risk is worth taking.

It should be borne in mind that taking away a right will also take away a power, and may disadvantage a person further. My colleagues and I are unhappy about taking away that right: we have already argued our case. We will not support the Bill on Third Reading, however it may have been amended, because we think that the process has been dealt with in the wrong way. However, both the hon. Member for Stafford and the hon. and learned Member for Harborough (Mr. Garnier) ask perfectly proper questions. This should be one of a series of interconnected considerations, on which we should reach a comprehensive and serious view

The Minister of State, Home Office (Mr. Charles Clarke)

My hon. Friend the Member for Stafford (Mr. Kidney), with whom I have served on the Select Committee on the Treasury, has a strong and genuine view, which he has held throughout. I pay tribute to the integrity with which he consistently makes his case. I think I am right in saying—he will correct me if I am wrong—that his fundamental objection is to the approach taken throughout the Bill as a whole and that, even if the new clause were accepted, that would not change his view about the matter as a whole.

Mr. Kidney

indicated assent.

Mr. Clarke

My hon. Friend confirms that that is his view. [Interruption.] The Whips suggest that I was trying to bargain, but there was no doing business there. However, joking aside, I appreciate his confirming that. I am glad that he has made the position clear.

I will deal with my hon. Friend's points in reverse order. On the illusory savings point, I addressed that at great length in Committee. The Government rest their case on the Bill being a modernisation of the criminal justice system, which is justified in its own terms. We are required under the law of the land to set out our estimate of the savings. We must set out in a memorandum our estimate of the savings, which we have done honestly and directly, but the Bill does not rest on the accuracy of those assumptions or, indeed, on the fact of there being savings at all.

It is possible that the assumptions that we have made will not, in practice, turn out to be exactly as we predict. That is entirely understandable, but that does not, in our view, change the case for or against the Bill in any respect, because it is about modernisation of the criminal justice system.

My hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) raised points about the reputation issue, which, if he permits me, I shall deal with in the discussion on the next group of amendments—which addresses that point directly—rather than reiterate my points now.

The hon. Member for Southwark, North and Bermondsey (Mr. Hughes) advances the argument for delaying all this—again, we discussed the matter in Committee at some length—to wait for Auld, as it were. I accept that there is a perfectly coherent argument for that, although I do not accept—I have not accepted it with any process of commission change, inquiry or review of any part of the Government's work—that that inquiry or review, whatever form it takes, should prevent reform as we go forward; in this case, it takes the form of the Auld inquiry. There is a case for looking at it in the way he suggests, but I do not accept that case. 1 do not think that it is right.

Mr. Simon Hughes

Can the Minister explain why the Government commissioned a senior Lord Justice to conduct an inquiry, specifically asking him to address that question, if, in the meantime and since he was asked to do it, they have been determined to legislate when they have not had any answer? I do not understand the logic. They did not do it on fox hunting—they set up a commission, got the inquiry and then announced how they were going to proceed.

Mr. Clarke

The terms of reference of the Auld inquiry go far wider than simply the mode of trial issue. By the way, the first mode of trial Bill was presented before Mr. Justice Auld was appointed. We embarked on that course of action because we thought that the reform was justified in its own terms. As I say, there is a perfectly respectable argument that says that we should not do anything about any of these things until Auld reports, but I do not accept that argument and nor do the Government.

Mr. Garnier

The point I wish to make follows on from what from the hon. Member for Southwark, North and Bermondsey (Mr. Hughes) said. Let us assume that the Bill becomes law, but that, none the less, Sir Robin Auld in his inquiry reaches a completely different conclusion about the value of the jury. What will the Government do then?

Mr. Clarke

We will look at all Sir Robin Auld's recommendations. I do not think the issue is about a verdict on the value of the jury. There is no issue about the value of the jury. I was going to address a point made by my hon. Friend the Member for Stafford on the matter. I do not share the view that jury trial is wasteful, in the wording of the briefing from which my hon. Friend read. I do not think that is a correct way to look at it. I do think that aspects of the way the criminal justice system works are inefficient and ineffective, and it is reasonable to look at that from a wide range of points of view. That is what the Bill is about, but the word "wasteful"—I agree with my hon. Friend—is wrong.

In the same way, I do not think that anything we do in the Bill prevents us from looking carefully at precisely what Sir Robin Auld recommends when he comes to do so, but the core point was raised by my hon. Friend when he described the measure as the Scottish amendment. He talks of the trade-off between the sentencing powers and the prosecutor taking the decision.

Much was made by the hon. and learned Member for Harborough (Mr. Garnier) about what my right hon. Friend the Home Secretary said about the Scottish example. The point of that example is that in the Scottish system—a completely different system, as is acknowledged by all parties in the debate—the prosecutor takes the decision as to the mode of trial. We are not proposing that. That is simply not the proposal in the Bill and before the House. We propose that a magistrates court—a magistrate—takes that decision, not that the prosecutor takes it, so the trade in the proposal is simply not appropriate to this situation.

example that my hon. and learned Friend the Member for Medway gave, and to which the hon. and learned Member for Harborough referred, was just that—an example. The defence's ability to choose in these circumstances is not absolute.

9.45 pm

The fact is that this group of amendments would remove the ability of the magistrates court to commit a case to the Crown court for sentence if there has been a mode of trial hearing. It has long been a feature of our criminal justice system in England and Wales that the magistrates have a power to commit a case for sentence if the circumstances of the offence suggest that the punishment that the court would have to impose following a conviction would be inadequate. We believe that there is nothing inherently unfair with that procedure, as a defendant will generally be committed to the higher court for sentence only because his previous criminal record has aggravated the offence. Our estimate is that, as a result of the Bill, about 8 per cent. of formally electing cases will be committed to the Crown court for sentence.

Mr. Kidney

I cannot forbear from saying that the practice of magistrates committing for sentence after the trial is as long-standing as the accused's right to choose trial in the Crown court rather than the magistrates court. However, that is by the bye. My hon. Friend said that the Scottish system was different because, in that system, it is the prosecutor who takes away the accused's right of jury trial, whereas, in the Bill, it will be the magistrates who do it. However, the principle of the two systems is the same, as the accused will not have a choice in either. What difference does it make if the prosecutor rather than the court makes the decision?

Mr. Clarke

I think that there is a qualitative difference—perhaps my hon. Friend does not share this view—between the decision on mode of trial being made by the prosecutor and the decision being made by a court with a right of appeal to the Crown court. l do not think that the two processes are the same thing at all. I think that the decisions are quite different in character and in approach, and that, therefore, there is no comparison between them. As I said, the Scottish system has an entirely different history and set of circumstances, and it deals with the matter in that way. I think that there is a difference in approach that should be reflected quite directly in our system.

Our critics have suggested that there will be many more cases in which defendants are committed for sentence because so many who opt for that route have lengthy criminal careers. However, it does not automatically follow that defendants have to go to the Crown court for sentence just because they have a long criminal record. We believe that magistrates are able to deal with most defendants' previous records without committing them for sentence. Nevertheless, the power to commit for sentence is an important safeguard. It ensures that the courts can impose an appropriate punishment in cases that unexpectedly turn out during the trial to be more serious than was anticipated, or in cases in which a defendant's previous conviction has seriously aggravated the offence

Mr. Simon Hughes

Before the Government presented their proposals, did they consider the Scottish option of the prosecutor making the choice? Did they also consider the option of limiting the right to commit cases to the Crown court? Did Ministers evaluate those options, and can they present any evidence to support their conclusions?

Mr. Clarke

There was very full consideration of those issues. My hon. and learned Friend the Member for Medway has already mentioned the royal commission and all the processes surrounding it. I have to confess, however, that I do not think that very full consideration was given to the idea of going straight to the prosecutor, as the hon. Gentleman suggests, simply because most people in this country would think that that is a proposal too far. Therefore, although the option was on the agenda for discussion, I would not say that it was considered very fully. I think that most hon. Members and most members of the public would not think that using the prosecutor in that way is the right way to proceed.

Mr. Marshall-Andrews

With respect to my hon. Friend, I wonder whether he will deal with the central point. How can it be right that a magistrates court can take upon itself the responsibility to try a case, knowing nothing of the defendant's previous convictions, but then abnegate responsibility for sentencing that person when they do? Does he not understand from his experience that the two cannot be divorced and that the nature of the defendant's background impinges on the trial? What my hon. Friend is asking magistrates to do is not only wrong but impossible.

Mr. Clarke

I understand that. It is a powerful argument for the reputation clauses in the first Criminal Justice (Mode of Trial) Bill that was considered by the other place. It was a case against which he, along with many others, argued. Indeed, he argued against the whole Bill, as he is entitled to do. There is a case for bringing in reputation. It is one that the Government were prepared to consider directly, but many hon. Members, including my hon. Friend, argued that we should not do so.

I have attempted to deal with the arguments that have been made. I hope that my hon. Friend the Member for Stafford will consider withdrawing his new clause. If he decides not to do so, I will urge my colleagues to vote against it.

Mr. Kidney

I am grateful for, but not thrilled by, the support that I have received from Opposition Members. I am especially grateful for all that the hon. Member for Southwark, North and Bermondsey (Mr. Hughes) said because it accords with my view that the Bill is wrong in principle, that the Lord Justice Auld review ought to consider all the matters together and that we should not take this one out of context now.

As the hon. Gentleman was not here when I spoke, I should just mention that in its briefing the Association of Magisterial Officers set out a number of practical changes in the procedures of the magistrates and Crown courts which would go a long way to meeting the Government's objections to the state of affairs in those courts.

My hon. Friend the Minister found me out very early. I would be against the Bill even if he accepted the new clause. It would be a self-indulgence to insist on a vote when other important issues remain to be debated tonight; so with the leave of the House, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.