DETERMINATION OF MODE OF TRIAL (Hansard, 25 July 2000)

Mr. Matins
I beg to move amendment No. 5, in page 1, line 12, at end insert— (aa) any written representations from the victim;'.

Mr. Deputy Speaker
With this it will be convenient to discuss the following amendments: No. 15, in page 1, line 13, leave out paragraph (b) and insert— '(b) all the circumstances of the offence and of the accused including his antecedents if any; and'. No. 6, in page 1, line 13, leave out '(but not of the accused)' and insert "and of the accused".
No. 9, in page 1, line 17, leave out "paragraph (b)" and insert— 'paragraphs (a), (b) and (d)'. No. 8, in page 1, line 19, at end insert— 'and (d) the antecedents of the accused.'. No. 19, in page 1, line 19, at end insert— '; and (d) whether in all circumstances of the case a denial of jury trial would impinge upon the rights not only of the accused but also of the community at large to have the matter considered and adjudicated by a jury.'.

§ Mr. Malins
It occurs to me that we now have approximately one hour to debate not only this but other groups of amendments. That imposes on me the need to be brief because other right hon. and hon. Members want to speak.
This group of amendments relates to matters to be considered by the court when determining mode of trial. I speak initially to amendment No. 5, but I shall also speak to my amendments Nos. 6, 9 and 8. Amendment No. 5 refers to taking into account any written representations from the victim. Amendment No. 6 would make the clause read that the court shall consider any of the circumstances of the offence and of the accused rather than but not of the accused. 1004 Amendment No. 8 entitles the court to take into account the antecedents of the accused in reaching its decision. Amendment No. 9 is merely a tidying up.
I recall the Home Secretary saying at the beginning of our proceedings this afternoon that he could do business with the Opposition on the reputation clause, so I look to the Government tonight to take into account what they hear and to promise to do something in the spirit of what is suggested.

§ Mr. Charles Clarke
To clarify the terms of trade, as it were, if the Government accepted amendments on reputation, would the hon. Gentleman support the Bill, and does he believe that his Front-Bench spokesmen would?

§ Mr. Malins
I cannot speak for the Front-Bench spokesmen, and the nearest I have ever got to the Front Bench is to go and ask the Whip on duty what time the next vote is. I therefore have to speak for myself alone.
Much reference has been made to trial by jury, magistrates or stipendiary magistrates. I do not think that the House would wish us to talk in terms of having a better trial in one venue or another. As I said on Second Reading, a trial before a lay bench can be very good or very bad, depending on the day. The same applies to a stipendiary magistrate and to a jury. It is not so much about having a better trial, because all the venues can give a defendant a wonderful trial or not such a wonderful trial, depending on the circumstances. It is a question not of a better trial but of a different trial. We have to focus on defendants' ability and need, and hitherto their right, to ask for a jury trial because it is what they want.
The hon. and learned Member for Medway (Mr. Marshall-Andrews) is to be congratulated on everything that he has done on the general theme of taking all the factors into account—including the effect on the reputation of a defendant, when that is at stake. That is why I shall speak briefly and then hand over to other Members who want to contribute to the debate.
It is important that, when the court considers whether the offence should be tried summarily or on indictment, it should be fully informed on the case. That means everything; it does not mean holding back from the court some of the defendant's background in respect of his previous convictions. I should have much less objection to the Bill if it permitted magistrates, when hearing representations, to hear from the defence much more about the defendant—about his or her background and antecedents, his or her life style, job or reputation—or, for example, to hear what victims think and what the effect has been on them.
If one is to make a decision about punishment and mode of trial, it is important for the court in question to be fully informed as to the background. On Second Reading, the Home Secretary said, as though it were the most powerful argument: It cannot be right that we continue to allow repeat offenders with strings of previous convictions to demand full Crown court trials for trivial offences that can and should be heard in magistrates courts. He continued: A 26-year-old man with 15 previous convictions covering a total of 63 offences, including 36 offences of theft, elected trial for the offence of stealing one bottle of champagne. I ask the House 1005 whether it is sensible to have a system that allows that kind of election for trial.—[Official Report, 7 March 2000: Vol. 345,c. 888-95.] Let us suppose that the Home Secretary is right. Under my amendments, what would happen? The court would hear everything about the defendant from his own lips—including his antecedent history. In the case of the person with the 63 previous, who has stolen a bottle of whisky, the court could—under my proposals—say that no, that person would be tried in the magistrates court, or the court could say yes if that was just. The Home Secretary's point would thus be completely covered. If the Minister thinks that is not so, he must tell me.
Likewise, under my proposals, the defendant who wants the court to take into account the fact that he is a person of entirely good character and would like to be tried by his peers can say that to the court. The court can then take that into account. If it decides against the defendant, that decision is subject to appeal to the Crown court.

§ Mr. Simon Hughes
If the hon. Gentleman's proposals were accepted and magistrates courts heard the panoply of arguments, would that court have no further jurisdiction after it had decided on the mode of trial? Thereafter, would different magistrates and a different clerk have to deal with that defendant? When any such group had dealt with a defendant, those people could no longer be involved in the case.

§ Mr. Malins
It is common practice that one cannot try a case in a magistrates court if one has heard the bail application. It is as simple as that. When I hear bail applications, I hear all the antecedent history and am thus debarred from taking the trial. That is everyday practice in magistrates courts. There would be a fresh bench.
It is miserable not to permit a court to take into account everything about the defendant—including background, antecedent history, previous convictions and general reputation. That is wrong, unfair and unjust. If the magistrates court makes the wrong decision, the Crown court can put it right. I venture to suggest that, if my amendments were accepted, most people would think that the position was much fairer than it is at present.

§ Mr. Garnier
I speak to amendment No. 19, tabled by myself and other Opposition Members. It would insert in clause 1, and thereby in section 19 of the Magistrates' Court Act 1980, a further paragraph. At the moment, section 19(1) of the 1980 Act, as amended by clause 1 of the Bill, would say: