§ 3.16 p.m.
§ The MINISTER of STATE, HOME OFFICE (Lord Harris of Greenwich)
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
§ Moved, that the House do again resolve itself into Committee.—[Lord Harris of Greenwich.]
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD ABERDARE in the Chair.]
§ Clause 14 [Preliminary]:
Lord BRUCE of DONINGTON moved Amendment No. 34:
Page 11, line 6, leave out ("three") and insert ("two").
§ The noble Lord said: I beg to move the Amendment standing in my name and in the name of my noble friend Lord Brockway. It would perhaps be for the convenience of the Committee if I indicated that it would be my intention to speak not only to Amendments Nos. 34 and 35 and to Clause 15 but also to Amendments Nos. 69 and 72 since they are all connected with the main purpose which it is my desire to achieve in moving these Amendments. The general purport of the Amendments is to restore to people 630 that right of election to trial by jury which is eliminated within this particular section of the Bill. I am, of course, not a lawyer, and I am well aware that the particular wording and the detailed course of action that I have proposed may not, on closer examination, accomplish precisely the purpose that I have in mind. If that be the case, it would be my intention at a later stage, and after having heard the Government's reply, if necessary to withdraw, with the leave of my noble friend, certain of the Amendments that I have put down.
§ The main purpose is to secure restoration into the Bill of the right to election to trial by jury. This is an important constitutional question which goes far beyond the mere legal applications which one would expect to find in a Bill of this kind. So important are they that one might almost have thought that they merited a Bill of their own rather than having been put into the existing Bill which covers a whole series of matters which, although important, are less than the fundamental principle that I should like to lay before the Committee.
I stand on the opinion that no person charged with an offence which, if he is convicted of it, carries the risk of imprisonment or the risk of damage to his honour or good name, ought to have taken away from him the right to elect trial by jury. I am much reinforced in this view by a leader which your Lordships may have read in The Times on 6th January, which said:
Trial by jury to the British is more than a procedural device for deciding whether a person accused of crime is guilty or not. It is deeply embedded in the national consciousness as a bulwark against tyranny, a safeguard for the individual against oppression by the State and one of the distinguishing features of a free society. It has worked well in the past and, for the most part, continues to do so. It must therefore not be restricted severely unless that is, absolutely necessary for the fair and efficient functioning of the system of criminal justice.
My respectful submission is that The Times was right. As The Times indicated, it is enshrined in our history and its origins go back to the Magna Carta, which stated:
No freeman shall be taken or imprisoned or dissesized or exiled or in any way destroyed, nor will we go on him nor will we send upon him…except by the legal judgment of his peers and/or the law of the land.
Even later than that, one of the most eminent legal authorities, so I am instructed, who has ever illumined the Bench, Sir William Blackstone, said:
…in criminal law… Our law has therefore wisely placed this twofold barrier of a presentiment and a trial by jury between the liberties of the people and the prerogative of the Crown. So that the liberties of the people cannot but subsist so long as this palladium remains sacred and inviolable.
It is true that since then the Grand Jury, which was incorporated in Sir William Blackstone's remarks, has been abandoned, but the single jury system still remains and I draw the attention of the Committee to the words of Lord Camden, another very eminent legal authority in the land, who said:
Trial by jury is indeed the fabric of our free constitution; take that away and the whole fabric will soon whittle away into dust.
§ Why, after all this time and when the jury system has, according to The Times, functioned so well, should it have been decided to modify it by scheduling certain offences for which in future there will be no right to elect trial by jury? These are incorporated in Schedule I to the Bill. No real reason has been given for this, save that the Crown Court lists are well in arrears; it has been said there are 3,000 cases well behind timetable in the Crown Courts. I invite the Committee to evaluate whether that reason alone is sufficient to abandon this cherished right which has existed for centuries.
§ What would be required in the ordinary practical sense of the term to reduce the lists of cases seriously behind time in the Crown Courts? Obviously more Crown Courts would have to be built and of course that would cost money. Also, I am informed, another reason for not embarking on this extra cost is that there is some doubt whether, from the existing resources available to the Lord Chancellor or whoever is responsible for appointing judges, we have sufficient judicial talent within the Bar to man the new courts if they were built and if the administrative staff and all the other facilities were made available.
§ Of this last argument I am not entirely convinced. As in so many other things, I think that in this distinguished profession of the law and in particular that part of it devoted to advocacy, we probably have 632 some of the best talent in the civilised world and I am most reluctant to think that there are not available among our leading barristers of many years' standing sufficient people to man the extra courts that are required. We therefore come back to the question of cost and I suggest that this must be evaluated against the fundamental principle involved.
§ At present we spend, in association with others, thousands of millions of pounds on the defence of our country. I am not complaining about the nature or extent of that considerable burden which the taxpayer has to meet in keeping our shores inviolate, but what are we seeking to protect—only property? As one who, like many inside and outside your Lordships' House, participated in the last Great War, I was not fighting for the preservation of property. Essentially we were fighting, as I understood it and as most people throughout Britain believed, for the preservation of British liberty. Are we to say that we are prepared to spend all this money on our defence yet we are not prepared to spend the few million pounds that would be involved in establishing a satisfactory number of Crown Courts so that their business could be adequately disposed of? Are we to say that purely because of the expense we are prepared to tamper with what I regard, and what has hitherto been regarded, as one of the bastions of individual liberty in this country?
§ There can be no doubt that there are defects in the administration of justice; it can hardly be otherwise when all the participants are human beings; however sincere their efforts, all are subject to human error. But if the right to trial by jury is taken away over the range of offences set out in Schedule 2, it will mean that mistakes may occur in the magistrates' court, without a jury, which might not have occurred had the case gone for trial by jury. Indeed, that is the reason for having trial by jury; "twelve good men and true" are probably more likely on balance to arrive at a correct evaluation of the facts than is a judge or magistrate sitting alone.
One of the most remarkable things is that the clauses that I seek to amend were based on the findings of the James Committee and one thing that that Committee admitted at, I believe, paragraph 32 was:
Our terms of reference did not permit us to embark on a comprehensive survey of summary trials in magistrates' courts. In the absence of such a survey any conclusion to be drawn from the evidence referred to above can be only tentative and general".
So these provisions for the abolition of the right of election to trial by jury in certain cases were reached without any real examination in depth as to what happens in magistrates' courts. It may well be that, following this Bill, possibly in the near future, an inquiry will be embarked upon, in which case I hope that the people who embark upon it go into some magistrates' courts incognito so that those administering justice and those giving evidence are not aware of the importance of the occasion or of the surveillance to which they are being subjected.
§ I have had some experience of witnessing proceedings in magistrates' courts and I must say that, in very many instances, it would be impossible to complain of the treatment of defendants, whether or not pleading guilty, that takes place in front of the magistrates. However, I regret to say that I have been present at one or two cases where, in my view, the entire proceedings involved a miscarriage of justice without any shadow of doubt.
§ There is a tendency which is referred to in the James Committee's Report, for magistrates to get to know the police who are giving evidence before them. Their association may develop over months and, very naturally, a relationship, however unconscious it may be and however lacking in sinister purpose or nature, nevertheless builds up and there develops over a period of time a degree of rapport between magistrates and police which, in some cases I am convinced and in two cases to my certain knowledge, has resulted in the interests of the defendant not being properly safeguarded as they would have been at a trial in front of a jury.
In amplification of that point, I should like to refer to the James Report which discusses these matters on page 113. It says in paragraph 257,
It is inevitable, particularly in the smaller courts where the same police officer or the same solicitor regularly appears to conduct prosecutions, that he should be well known to the magistrates in that role. It is understandable therefore that unless care is taken to avoid the impression of an established relationship the defendant may feel at a disadvantage".
I rather like the way in which that is phrased. The James Report does not say that it is unfortunate if the relationship it has described exists; it says that it is desirable to avoid the impression that it does so. To say the least of it, I find that a little disingenuous. The report goes on:
It is of the greatest importance that magistrates, advocates and court clerks should be scrupulous in ensuring that cases are conducted in a manner that treats and obviously treats prosecution and defence alike. The importance of this factor should be recognised".
The report goes on in a way that supports the argument that I have ventured to advance to your Lordships:
But from the evidence that we have received it would appear that there are magistrates' courts in which it is forgotten".
§ I am second to none in the admiration which I have for the police of this country, for their honesty, integrity and impartiality. I would make the same comment about the vast majority of magistrates, who, I am quite convinced, in performing their, in many cases, honorary functions, discharge their duties with the utmost conscientiousness. However, if I say that about the police and the magistrates, I must remind the Committee that the same observations apply to the mass of the people of this country as a whole. The bulk of them are honest people and people of integrity. Therefore, while it may not matter overmuch in the cause of justice if a guilty person is convicted on the basis of evidence brought by police who are biassed or, indeed, in some cases, untruthful, and before magistrates who are incompetent, what is to happen in the event of a person not being guilty? It is with the person who may not be guilty that we are concerned.
§ If your Lordships will turn to Schedule 1, you will find a whole series of offences which it is proposed shall in future be tried only summarily. I shall not weary the Committee by going through them all because I have no doubt that your Lordships have read the Schedule; but there are, for instance, offences under the Public Meeting Act 1908, the Children and Young Persons' Act 1933—which deals with allowing persons under 16 to be in brothels—offences under Section 5 of the Public Order Act 1936 (conduct conducive to breaches of the peace) and so on. There is a whole series of offences 635 here which carry the risk on conviction of a sentence of imprisonment or, where they do not carry that risk, carry with them, on conviction, a besmirching of the honour and the good name of the person concerned. I think it important that the Committee should come to the conclusion that, on matters of that kind and, certainly, pending a far more detailed investigation of what actually takes place in magistrates' courts than has been carried out up till now, the law should be left as it is.
§ During the past two months your Lordships' House, with whatever justification, has been widely described in the national Press of our country as the protector of the people and their liberties. Many of us may modestly disclaim the fulsome nature of some of the praise that has been lavished on us. But if ever there was an opportunity for this House to indicate to the country that we are deeply sensible of the liberties of the subject and are deeply conscious of the historic nature and safeguards implied in trial by jury, then this is it. If we can show the country and the other place that, then we shall be setting an excellent example which one hopes the other place will follow.
§ 3.40 p.m.
§ Lord HAILSHAM of SAINT MARY-LEBONE
I intervene briefly at this stage only for the purpose of trying to elicit from the noble and learned Lord the Lord Chancellor, or the noble Lord, Lord Harris of Greenwich, his views as to how this and subsequent debates should be conducted. I am sure that the noble Baroness, Lady Wootton of Abinger, will not be delayed long by what I have to ask, unless we embark upon a long discussion of this aspect of the matter. We have a number of Amendments on Part III, all of them involving in one way or another the question of the method of trial and the penalties attaching to the method of trial. If we were to embark at this stage on a general discussion of the merits or demerits of trial by jury as against summary trial, I think that we should involve ourselves in a long process of swimming in treacle and never come to an end at all.
I happen to think—I may be wrong about this, and I invite the opinion of the 636 Government on it—that the noble Lord, Lord Bruce of Donington, to whose very interesting speech we have just listened, has in fact misapprehended much of the nature both of his Amendment and of Clause 15 in relation to the Schedule. But if we are not to spend a lot of time unnecessarily, we must try to have some plan of campaign for today's proceedings. I rise solely for the purpose of inviting either the Lord Chancellor or the noble Lord who is in charge of the Bill to let us have the Government view as to how we should proceed.
§ The LORD CHANCELLOR
The noble and learned Lord has invited me to intervene. While not wishing in any way to seek to encroach upon the liberty of action of my noble friend Lord Bruce of Donington, I should say that at some later stages in the Committee stage—for instance, in Amendment No. 40 to leave out the provisions in Clause 23 (1) (a) removing the right of trial by jury for small thefts—there would be an occasion where the heart and essence of this problem can perhaps be most conveniently debated and discussed. Of course that would cover only a segment of the offences and it is quite true that Schedule 1, with which my noble friend is now dealing, would not be expressly covered by a debate relating to that segment of criminal offences.
For my part, I confess that I was rather hoping that on this Amendment there would be merely a general discussion. I have prepared to deal in some detail with the question of the relative merits of proceedings before magistrates' courts and trial by jury and the grave problems in regard to the pressure on the courts which arises in relation to proceedings in respect of both Schedule 1 offences and Schedule 4 offences, and I would prefer a course of dealing with the substance of the matter, on the issues that I have mentioned, at a later stage. But, as I say, I certainly do not wish to queer the pitch of my noble friend in any way in which he sees fit to deal with his own Amendment.
§ Baroness WOOTTON of ABINGER
It seems to me that my noble friend is going a good deal further in his Amendment than his speech implied—at any rate certain parts of it. He is proposing that there should be only two methods of 637 trial, trial on indictment and trial by either way, and not any cases at all which are triable only summarily. But he also said in his speech that he wished to have the law as it was. If he leaves the law as it was, there will still be some cases triable summarily only, and I do not know whether my noble friend is seriously suggesting that every time somebody leaves his car on a parking meter longer than he should it should be a matter for trial by jury. But I think that if I read his Amendment correctly that would be implied.
§ 3.45 p.m.
§ Lord HARRIS of GREENWICH
I begin by saying that my noble friend Lady Wootton of Abinger has got the matter precisely right in terms of her approach to my noble friend's Amendment. Before I come to the actual terms of what my noble friend is suggesting, I should like to say a few words about magistrates' courts. My noble and learned friend has indicated that he will be dealing with the wider question of the pressure on Crown Courts when he speaks at a later stage in our deliberations this afternoon. I am bound to say one thing to my noble friend. I noted that at one stage he paid a tribute to lay justices for the work they do. As is well known, they take the overwhelming majority of criminal proceedings in this country. In a country in which sometimes I think we spend a substantial amount of time—perfectly understandably in the present situation—discussing what is wrong with the country, one thing which we should sometimes bear in mind is that the system which has evolved here is widely admired in this country for the speed and despatch with which business is conducted.
Turning to one particular criticism which my noble friend subsequently made about the work of magistrates and magistrates' courts, I wonder whether he has had an opportunity of reading the Written Answer which I gave in reply to my noble friend Lord Gordon-Walker which appeared in yesterday's Official Report. In my view that does not seem to justify the suggestion that magistrates' courts are prosecution minded and that one stands an infinitely better chance of being acquitted if one goes for trial by jury. I should like to refer to columns 617 and 618 of the Official Report of yesterday and take one or two examples. 638 With regard to offences under Section 51(1) of the Police Act 1964, in magistrates' courts the proportion of those pleading not guilty who were acquitted was 27 per cent.; in the Crown Court it was 20 per cent. Under the Sexual Offences Act 1956, Section 32, 77 per cent. were acquitted in magistrates' courts; in the Crown Court the figure was 61 per cent. In relation to the Public Order Act 1936 and the Public Meetings Act 1908, 57 per cent. of those pleading not guilty in the magistrates' courts were acquitted while the figure in the Crown Court was 28 per cent. All I would say, with great respect to my noble friend, is chat it does not appear to me that figures of that kind justify his belief, and indeed it is only fair to say the belief of many others who have commented on this matter, that the magistrates' courts are sometimes obsessively prosecution minded. The figures appear to be capable of being interpreted in a wholly different way.
I should like to touch on one other point which my noble friend made. He referred to one or two situations where he had been in court when he observed what he believed to be a miscarriage of justice. But of course the way in which one deals with a miscarriage of justice is not, with great respect, by the kind of Amendment that he has put down today. The way to deal with it is by an appeal. There can of course sometimes be miscarriages of justice. We have all been aware of a number of cases recently arising as a result of proceedings in Crown Courts, and again this matter is properly handled by the system of appeals. I do not believe that my noble friend justified today in the speech that he made, the very substantial changes in the administration of criminal justice in this country which his Amendment would involve.
Undoubtedly if the changes which he has recommended to the Committee today were to be accepted they would have the most dramatic and the most far-reaching consequences on the Crown Courts. Stated quite simply, the effect of what they propose is that the accused should have a right to elect trial by jury in the Crown Court in respect of every single criminal offence, however trivial and whatever the maximum penalty may be. That is because the Amendments would abolish the category of purely summary 639 offences—that is, those offences which under the Bill can be tried only in the magistrates' court—and make all such offences triable either way in accordance with the new procedure laid down in Part III of the Bill for determining the mode of trial for such offences. Under that procedure the accused has the right, subject to the provision of Clause 23, to elect trial by jury in the Crown Court.
This, of course, would have precisely the opposite effect to one of those intended by Part III of the Bill; that is, to reduce the burden on the Crown Court. It is a matter for speculation how many defendants, in addition to those who at the moment go to the Crown Court for trial—and in 1975 there were around 75,000 such cases—would choose to be tried by jury if the right to elect was available in every case, but in fact we estimate that the number of purely summary offences which at present do not carry the right to jury trial (that is, the situation at the moment) is probably in the region of 1,200,000 cases in a year. If only a small proportion of those elected jury trial—let us take one example and say 10 per cent.—the Crown Court would immediately face an increase in workload of 100,000 cases a year, or well over twice the present workload faced by the Crown Courts. The effect of this would plainly be exceptionally serious.
Let us examine just for a moment what this means in terms of the type of offence which would carry an absolute right for the accused to elect a jury trial. It means, for example, that all minor traffic offences, such as parking offences and obstruction, which alone accounted for more than one million of the cases tried in magistrates' courts in 1975, could go for jury trial if the accused so elected. It means that a person charged with failure to have a dog licence, for which the maximum penalty is £10, could elect trial by jury. There were 4,000 such cases in 1975. It means that failure to have a motor vehicle licence or a television licence, totalling some 136,000 cases in 1975, would carry a right to jury trial; and it means that the full panoply of trial by judge and jury would be available to a person charged with having a chimney on fire, where there is a maximum penalty of £50.
640 As the James Committee observed, one of the main reasons for the distinction between offences triable summarily and those triable on indictment is to signify the widely differing levels of gravity with which society regards them, and in the light of the James Committee's views, which the Government share, I do not believe that an Amendment of the kind which my noble friend has moved today would in fact in any way improve the situation. In my view it would have the most far-reaching and grave consequences in terms of the administration of justice in this country.
§ 3.54 p.m.
§ Baroness PHILLIPS
Following the Minister and the noble and learned Lord, I appreciate that we do not want a long and protracted debate on trial by jury versus trial by magistrates, but I felt that my noble friend—and I very rarely disagree with him—seemed to have a very curious and old-fashioned idea of magistrates' courts. He seemed to suggest that the judges, by sheer definition, would have the objectivity which was necessary, whereas that would not be the case with the magistrates, who would be totally immersed and involved, as I understood it, with the police. As a magistrate of some many years' standing, I see now that I have missed many opportunities; I have had no relationship with the police, sadly, either of a social or of any other character. But what my noble friend seemed to overlook is that it is common among advocates when advising clients to suggest that a certain judge has a certain quirk, and that if the client would like to wait for the case to come before that judge he may get different treatment. I do not know whether or not this is true, but I would say that the magistrates—and I sit about every other week—are drawn from the whole of the community.
Today, when people talk about the abolition of the House of Lords, we are suffering, I think, from a very curious and old-fashioned idea of a stereotype Lord who has a castle with a moat round it and a couple of dragons, and who lives on his fortune, when in fact we are people drawn from the whole wide spectrum of the community. So it is with the magistrates. My noble friend mentioned a possible miscarriage of justice. 641 Let us face the fact that the lay magistrates do not sit too often, so they come to their task with a freshness and an objectivity which I think is second to none.
It rather sounds as if I am defending something of which I am a part, but one cannot fail to be a part of the magisterial system without acquiring a great admiration for our system of justice. You have somebody in front of you who you instinctively feel may be a rogue, and often it is found that he has a very long string of previous convictions; but he cannot say that he has not had the full opportunity of British justice and three or four hours in which to present his case. I would suggest that this common idea that you get better treatment from your own peers is to reject the fact that your own peers are now the three lay magistrates, who will sit listening carefully, patiently and objectively to the evidence. I hope that my noble friend will appreciate that no longer is there a situation of "them" and "us". The magistrates are the peers of the people they try.
§ Lord WIGODER
I should like, if I may, to keep my main observations on this whole issue until we come to Amendment No. 40, but it might perhaps be of slight assistance if I first of all indicated how grateful I know all noble Lords will be to the noble Lord, Lord Harris, for producing those most interesting figures, the statistics of the acquittal rates in magistrates' courts and Crown Courts for the same class of offence. When this Bill was before your Lordships on Second Reading I ventured to say, without access to statistics of any sort, that I had no reason to doubt that the overwhelming majority of cases would in fact be decided in precisely the same way in a magistrates' court as in a Crown Court. I believe that the argument, when it comes, will come not in any way over the question of where one is likely to get an acquittal; and I hope very much that the rest of the proceedings on this part of the Bill will not be bedevilled by what I think would be a wholly false argument as to which is or is not the superior means of ascertaining the truth.
I think the issue, when we come to it, will be as to whether there are certain categories of case where it is not in the public interest that the decision should be 642 made, not by a small, select group of people who appear to represent, in one form or another, authority, but by the fellow citizens of the defendant. That raises issues of principle on which, as I say, I do not desire to embark at this stage; but on these particular Amendments I should be grateful if the noble Lord, Lord Bruce of Donington, would help about this.
I rather suspect, after listening to him, that he is not seeking to give the right of jury trial to motorists who are charged with parking on double yellow lines. What he is seeking to do is to give the right of jury trial to all the offences set out in Schedule 1 to the Bill. If we are to deal with this on a matter of principle, then I would suggest to the noble Lord that this is not the right approach and that it is quite impossible to say what the principle is by which a person should be entitled to trial by jury if he is charged, for example, with the offence of failing to comply with his obligations in relation to the obtaining of information as to underground water, which is one of the offences in the Schedule; or as to polluting from liquids resulting from the manufacture of gas, which is another one. I would respectfully suggest to the noble Lord that the proper course would be, perhaps, that we should deal, not with the Schedule en bloc in this way but with the specific improvements that are proposed in later Amendments, when we can apply the relevant principles to the problems.
§ Lord BROCKWAY
I should like first to express agreement with what the noble and learned Lord, Lord Hailsham, has said regarding the danger of this discussion overlapping that on later Amendments, and I hope very much that we shall not be causing a delay in the consideration of this Bill by repeating ourselves in the two discussions.
I added my name to this Amendment because I felt that its purpose was to limit the restrictions on persons applying for jury consideration. I think that all of us would accept the view put by my noble friend Lord Harris that some charges should be dealt with immediately by a magistrates' court. On the other hand, the Bill as it stands would mean that a number of charges, very serious for the offenders, would be limited to the 643 magistrates' court and there would be no opportunity of consideration by a jury. For example, this would apply to charges of theft up to £20. The very serious effect upon an individual charged with such a theft, not only upon his or her status but, even perhaps, on employment—
§ Lord HAILSHAM of SAINT MARY-LEBONE
I do not want to interrupt, but would it not be better if we dealt with these small thefts under Clause 23 which directly relates to them? I hope that we can get rid of this general Amendment which is bound to lead to trouble. I know that I shall listen to the noble Lord, Lord Brockway, with even greater pleasure if we can wait until then.
§ Lord BROCKWAY
I think that I have already accepted that point of view. I do not want to delay consideration of these separate points, but when my noble friend Lord Harris has suggested that a whole series of small charges which could be dealt with in the magistrates' court—
§ Lord BROCKWAY
Yes, I agree. But when he suggested that that is a reason for rejecting the view that there should be an opportunity to go for decision by a jury, then I think one has the right to point out that it also means that much more serious charges would be limited under the Bill.
I want to make this my major appeal: that I regard trial by jury as an absolutely fundamental instrument of a free society. The right to say, when one is charged with an offence, that the decision as to whether one is guilty shall be by juries of ordinary men and women seems to me to be in the very fabric of a society of liberty. It is mainly on that ground that I hope there will be a real consideration of the plea which has been made by my noble friend Lord Bruce of Donington.
I want to say at once that I am tremendously appreciative of the services of the magistrates. One knows that it is out of dedication to service to the public; one knows how seriously so many of them are seeking for decisions which are 644 best not only for society but for the offender himself; but the fundamental principle, when one is charged with an offence which is not trivial, that one should have the decision by fellow citizens in juries seems to me to be absolutely basic in our sense of a libertarian and democratic society. I think that it is clear from the discussion that the Amendment in its present form is not water-tight and acceptable even for the purposes which we have in view; but I hope very much that as a result of this discussion it will be possible to reconsider the whole issue when we reach the Report stage.
§ Baroness WOOTTON of ABINGER
Could we not shorten this discussion a little if we were to ask my noble friend to withdraw his Amendment if he understands that it really means that all these trivial offences would be given a right of trial by jury?
Lord BRUCE of DONINGTON
I am obliged to my noble friend for the remarks she made earlier in connection with this Amendment. I explained at the outset the purpose which I was trying to achieve. It is the purpose which I think was precisely identified by the noble Lord, Lord Wigoder. I cannot complain, however, that my noble friend Lord Harris dealt with the argument that appeared from the strict reading of the Amendment. After all, that is what he is required to do. It was not my intention to have the law constructed in such a way that every traffic offence would require trial by jury. I explained in my earlier remarks that the principle upon which I stand is that no person who is charged with an offence which, if he is found guilty, carries a risk of imprisonment or, alternatively, of serious damage to his honour or reputation, should have taken away from him the right to elect for trial by jury. Upon that I stand.
I apologise to the Committee that the form of my Amendments did not accomplish that purpose. I agree with my noble friend Lord Harris that if the Amendments had been carried in their existing form all the ridiculous consequences in regard to traffic offences or water offences would have ensued. But this was not my purpose. I trust that the Committee will 645 forgive the fact that I am not a Parliamentary draftsman. I sought advice on the drafting to accomplish the purpose but I probably misunderstood that advice. In any event, I was certain that the Committee would avail itself of the opportunity of considering the whole matter. I was hopeful that if we did not get the precision that we wanted at this stage, by the time the Report stage was reached we should have become so skilled in the arts which your Lordships are kind enough to communicate to those of us not of the legal profession that we should be able to get greater precision then.
I agree with what my noble friend Lady Phillips said about this. I endorse every expression of her views about magistrates; save that I do not think it can correctly be said that a Bench of three magistrates or a magistrate sitting alone can be taken in substitution for 12 good men and true. Subject to that, and thanking the Committee for their considerable indulgence on this occasion, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 14 agreed to.
§ Clauses 15 and 16 agreed to.
Lord HAILSHAM of SAINT MARY-LEBONE had given Notice of his intention to move Amendment No. 36:
After Clause 16, insert the following new clause:
§ Provision as to proceedings not instituted by police or other authority
§ . The offences mentioned in Schedule 2 to this Act shall not be triable summarily, except with the consent of the accused, where the proceedings are not instituted by or with the consent of the police, the Director of Public Prosecutions, the Attorney General or the Solicitor General.
§ The noble and learned Lord said: I must apologise to the Committee for this Amendment. Something has gone wrong with it. I am not sure what it is, so I do not propose to move it.
§ 4.9 p.m.
Lord HAILSHAM of SAINT MARY-LEBONE moved Amendment No. 37:
After Clause 16, insert the following new clause:
§ Safeguards for the defence in summary trials
§ .—(1) In all cases to which Schedule 2 to this Act applies and the prosecution intends to apply for summary trial, and in any case to which section 23 of this Act applies, the following provisions of this section shall apply.
§ (2) Not less than forty-eight hours before the date of the hearing, the prosecution shall—
- (a) give notice to the accused that it is proposed that the case should be tried summarily, or that the case is one to which section 23 applies, as the case may be; and
- (b) send to the accused copies of any statement by any witness or witnesses which it is proposed to call for the prosecution.
§ (3) The accused, or the person representing him, shall have the right to a second speech at the conclusion of the evidence in any case where the evidence given for the defence consists in oral evidence by any witness other than the accused himself and other than any witness to his character and antecedents.
§ (4) In any case during the hearing of which it is proposed to change from committal proceedings to summary trial, the accused shall have the right to the provisions of subsections (2) and (3) of this section with such modifications as may be required by the nature of the case and as the court may direct.
§ The noble and learned Lord said: This Amendment is more serious. Again, I want to be rather careful not to embark on general topics of an exciting kind, and I may at once say that this Amendment at this stage of the proceedings on this Bill is not going to be pressed to a Division as, in due course, whatever the Government may say about it, I can at this stage, without prejudice to what I may do at a later stage, withdraw it. One of the reasons, at least, for this is that I have had to draft it, owing to its position in the Bill, on the supposition that Clause 23 remains intact. I do not think that it will remain intact, although I need not anticipate any discussion that we may have upon it. I think it will be altered in some way as a result of later discussion.
§ I want to reintroduce, if I may respectfully say so, a note of realism into this discussion. I fully endorse what was said by the noble Baroness, Lady Phillips, about magistrates. They deal with 98 per cent. of the offences in this country which are committed, and they do so to general satisfaction. I should also like to endorse what the noble Lord, Lord Harris of Greenwich, has said about the acquittal rate which appears in today's Hansard, of which the noble Lord very kindly sent me a copy. The acquittal rate is higher in magistrates' courts than in jury cases.647
§ Moreover, I should like to add to the documentation on this matter the reference made in the piece of Oxford research called The Jury at Work, which was published two or three years ago; namely, a table which shows the reasons, so far as they can be ascertained, for the acquittal of defendants by the jurors who actually acquitted them. I will trouble the Committee with only one figure. In those cases where the acquittal was attributed by the researchers to a plausible explanation by the accused, 75 per cent. of them (which is more than a random selection) had a long list of previous convictions. So the fact that 12 good men and true acquit does not always mean that they are wise to do so. On the contrary, I should like to try and point out that there are advantages and disadvantages of trial before magistrates and juries which have not been fully explored.
§ My Amendment will try to deal with two of the disadvantages, although a third—which I will mention—cannot be dealt with for a reason I will give. If effect were given to the suggestion that I am making, the disadvantages would, to some extent, disappear. Some of these disadvantages have been mentioned at an earlier stage in the progress of the Bill. One is that when you appear as an advocate in a magistrates' court, you do not know in detail the case for the prosecution. You know when you appear before the Crown Court because you have the depositions, or whatever substitute there is for the depositions under 1967 Section 1 procedure. You get either the depositions or the statements. The result is that you have been able to advise on evidence and have been able to take instructions from your client dealing with the detail of the case for the prosecution.
§ I must say from over 40 years' experience as an advocate, in part before magistrates' courts, that there is that considerable disadvantage. The purpose of this Amendment would achieve, I hope, that where the prosecution want to take advantage of a summary trial in a serious case—I am not talking about parking offences and what-have-you, but where there is a serious case of a dispute—they would be under an obligation to disclose what the case was which may, as a matter of fact, be to their disadvantage.648
I should like to tell a slightly bowdlerised rude story in this connection, to show how it could have been a disadvantage to the prosecution in a case in which I was once engaged many years ago. In the good old days when there was nothing but a full dress committal, I was defending a man for the impairment offence of driving under the influence of alcohol. It seemed to me, on his instructions, to be a marginal case and I was instructed to save his licence. As these things are largely a matter of opinion, I advised, for the reason given by the noble Lord, Lord Bruce of Donington, that he should go to a jury. I went to the magistrates' court in order to inform myself of the case against me, to take instructions from my client and to advise on evidence so that we should get off. The police doctor gave evidence at the magistrates' court. He said the following words, more or less:
When I got into the police station, the accused was lying on the floor, supine. I said to him, 'Are you ill?'. He said, 'Why, yes, doctor, I am. I am suffering from mumps, whooping cough, scarlet fever and a roaring dose of—'".
And then he added a very rude disease indeed!
§ If I had only known that this evidence was going to be given, the prosecution would have been saved a great deal of time and trouble, and the jury would not have had to be sworn at a later stage. Instead, I had to endure the unendurable humiliation of having this story told again in front of 12 laughing jurors, looking an almost incredible fool, as a result of the advice which I had given, which would have coincided of course with the best principles enunciated by the noble Lord, Lord Bruce of Donington. I suggest that it is not only for the advantage of the defence, but also for the administration of justice that you might be allowed to know what the case is before you are driven to advise your client to elect to go before a jury, and before the prosecution are entitled to avail themselves of summary trial.
§ The other point is also dealt with by the Amendment. When I used to practise in the magistrates' court—and it is nearly seven years ago now since I became Lord Chancellor—you were not allowed a second speech. What is more, a great number of magistrates' courts in different parts of the country prescribed to you 649 whether you were to speak before or after calling your evidence, which might not have been the same order of priorities that you would have chosen for yourself. It is elementary that if you are going to call a lot of evidence and cross-examine the prosecution witnesses on the lines of the evidence that you are going to call, you must have a chance at the end of the debate of summing-up the matter. The purpose of this Amendment is to enable that to happen.
§ There is a third disadvantage of trial before magistrates with which I have not tried to deal because it can only be dealt with administratively. It is this: it does not matter whether a case is trivial or serious, if it is going to last over the day you cannot reconstitute a magistrates' court very easily, even when it comprises a single magistrate sitting in the London area. You may have to wait a fortnight or a great deal longer. My experience—and I do speak from experience of these things—is that by the time the court is reconstituted, either a professional magistrate or a bench of magistrates has forgotten the evidence. I can tell another ridiculous story about that, but it would bore the Committee. The fact is that justice is neither done nor seen to be done when that happens.
§ Whether it is triable on indictment, triable either way or triable summarily, does not matter—it does not matter, for instance, if it is deceiving the railway company over your ticket, which is only triable summarily. If you have a case which is going to last predictably over the day, the important point is that the clerk of the court, the Lord Chancellor or somebody else, shall see to it that a special bench is constituted in order to sit continuously until the case is over, otherwise justice will not be done. That is not something that you can deal with by legislation; but it is something I mention because I am anxious that this debate should proceed, in a very flat-footed way, to discuss what actually happens in the courts instead, with great respect to some of the brightest luminaries at the Bar, the editor of The Times and the noble Lord, Lord Bruce of Donington, of going back to Magna Carta and talking as if the whole of the liberties of the subject were at stake.650
I notice that in the James Report there was in fact a good quote which I have taken to heart. In paragraph 47 it says:
Gilbert a'Becket wrote of the jury in 1844 that it was 'difficult to get the British bosom into a sufficiently tranquil state to discuss this great subject—
namely, trial by jury
—for every Englishman's heart will begin bounding like a tremendous bonce at its bare mention'.
§ My heart is not bounding like a tremendous bonce, but I suggest that I have made a case for two modest improvements. At this stage, it cannot possibly be forced to a Division, but I invite the Government, through either the noble and learned Lord or the noble Lord, Lord Harris, to comment on what I have said. I beg to move.
§ Lord FOOT
Before the noble Lord replies, might I say just one or two words in support of what the noble and learned Lord has said. I make these comments as one who has been practising as a mere solicitor in the magistrates' courts for some 40 years, and I should like to bear out and support everything that the noble and learned Lord has put forward. It would be a great pity, I think, if we were to get into a wrangle about the way in which the magistrates perform their duties. I entirely agree that magistrates generally perform their duties in an admirable and immaculate way. As the noble and learned Lord said, the weaknesses, if there are any—and there are some weaknesses in the proceedings of a trial before the magistrates—arise not from incapacity or inability of the magistrates or from any prejudice on their part but from these procedural difficulties which you have in the magistrates' court but with which you are not confronted in the Crown Court.
Not only is the noble and learned Lord right in saying that if you were to introduce these reforms which are the intention behind his Amendment you would thereby improve the quality of the justice which is administered in the magistrates' court, but it would have the other advantage that it would make trial in the magistrates' courts more attractive to the potential defendant than it is today. You would therefore be going some way to accomplishing the whole purpose of the James Committee, which is to prevent some of those cases going to the Crown 651 Court which now go there and which could properly be tried in the magistrates' courts. The more you can increase public confidence in the administration of the law before the magistates, the more you will persuade defendants, of their own accord, not to elect to go for trial.
I have had experience time and time again—and this particularly occurs in the case of a busy solicitor practising in the magistrates' court—that a defendant comes to you, gives you the summons he has received and you take his instructions. Then, if it is a case where he has a right to elect for trial, you have to decide whether or not to advise him to do so. It is perfectly true that you can, on an "old boy" basis, very often go to the solicitor or prosecuting authority and say, "Would you mind telling me what the case is about?" and he can, if he wants to, tell you the substance of the case. He is under no obligation to do that, but he can do so if he wishes.
It is very much more satisfactory, from the point of view of the solicitor, to be able to say to the client, "Let us go to trial: then we shall have the depositions and shall be able to consider the whole thing calmly and quietly before it gets to the Crown Court, and we shall be able to manage the whole thing very much more satisfactorily." There is a very great temptation to give that advice to the client at the moment. That temptation would be very much reduced if, 24 hours before the hearing, you were presented with the evidence that is going to be put in.
The job of a solicitor defending in the magistrates' court is often very much more difficult than that of a barrister defending in the Crown Court, because he does not know the case that he has to meet. He has to think on his feet and try to foresee what witnesses may be called. For example, in a shoplifting case, if there is a straight controversy as to what happened and what the detective saw, and so on, when you come to cross-examine the first witness for the prosecution—it may be the detective—and he or she gives an account of what he or she saw take place, you do not know at that time what other witnesses will later be called. Therefore, you do not know how fully you ought to go into the cross-examination of that witness in order 652 later on to be able to point to inconsistencies in the evidence of the other witnesses. Therefore, you are forced to go into a prolonged cross-examination of that witness, upon every aspect of his or her evidence, in the hope that you may be finding out something which will prove inconsistent with what is going to be said later by another witness. In the Crown Court, all that is eliminated, because you know precisely what the other witnesses are going to say.
The Government have accepted the recommendations of the James Committee on these matters that we shall be coming to later, that in cases of so-called trivial theft there shall be no right of trial, with the express object of reducing the burden of the Crown Court. Therefore it seems to me most remarkable that that same Government have rejected the recommendation of the James Committee which would have provided what the noble and learned Lord wants to do and that would, as the James Committee say, have had a significant influence in reducing the number of cases going to the Crown Court.
The difference, of course, is that when you deny a defendant accused of a small theft the right to go to trial, you are denying him a right that he previously had. If you can induce him, by making trial before the magistrates more attractive and safer, in his view, than it is now, then you have achieved the same object, but you have done it without having to change the law as is proposed under Clause 23, in the very serious way which we shall doubtless later come to discuss.
Therefore, I would urge on the Government that they should give serious consideration to this. I recognise what the noble and learned Lord means when he says he will not press his Amendment at this stage, because Clause 23 may itself, hopefully, be altered. But whether or not that takes place, I hope that at a later stage we shall return to the general question as to whether there should be this right of foreknowledge as to the case against the defendant, at any rate upon those charges which are triable either way.
§ Lord WIGODER
Might I just ask the noble Lord, Lord Harris, whether it would be thought desirable that we should at the 653 present moment also consider Amendments Nos. 56 and 57, which deal with substantially the same issue of pre-trial disclosure at the magistrates' courts, or whether it would be thought more helpful if we came to those in the ordinary way?
§ 4.30 p.m.
§ Lord HARRIS of GREENWICH
The noble Lord has anticipated the point I was about to make; namely, that I was able to give a guarantee almost immediately to the noble Lord, Lord Foot, that we shall indeed be able to come back to this because the issue is dealt with by the noble Lord's Amendment later and also in the Amendment of my noble and learned friend Lord Gardiner. I think perhaps it might be more tidy, given the fact that we have now had this short debate, for me to deal briefly with the narrower question raised in this particular Amendment of the noble and learned Lord.
I will touch briefly on the noble and learned Lord's Amendment, which is the point of substance, and then next Tuesday, when we shall be taking up this matter further, we shall be able to have a debate in the knowledge of what the Government's position is on this matter. If that is to the convenience of the noble Lord, I am much obliged.
May I begin by making one point to the noble and learned Lord, Lord Hailsham, about his last Amendment? We spent a formidable amount of time this morning on his Amendment, because it occurred to me that perhaps we were not able to follow what was in the noble and learned Lord's mind. I am bound to tell him that I was more than mildly alarmed at the prospect that there was some exceptionally subtle point, which was entirely escaping all the Home Office advisers who were surrounding me at that moment. So I was particularly grateful that he decided not to move it, and I look forward to seeing it at a later stage, perhaps in an amended form.
The Amendment which the noble and learned Lord has just moved deals with two issues: first, the point of disclosure—although his Amendment deals with disclosure only in certain cases—and, secondly, the right of the accused, or of the person representing him, to make a second speech. These are two separate compartments of his argument, and I 654 will deal with them in that way. As I have just said in answer to the noble Lord, Lord Wigoder, there are three Amendments which deal with the disclosure point—the one which we are now discussing and those of the noble Lord and of my noble and learned friend. All of these deal with various proposals, which would require the prosecution to disclose to the defence in advance of a hearing the nature of the evidence which they intended to offer. Of the three, the one nearest to what the James Committee recommended is that which has been put down by my noble and learned friend Lord Gardiner.
The effect of my noble and learned friend's Amendment would be, in substance, that a person charged with an offence triable either way would be entitled to receive, on request, copies of the statements of the prosecution witnesses, or, where such statements had not been prepared, a summary of the facts upon which the prosecution intended to rely. The present Amendment by the noble and learned Lord applies to a much more limited type of case, as he has recognised, but this would also have much the same effect in relation to that limited category of case. The third Amendment, No. 57, in the name of the noble Lord, Lord Wigoder, would instead give a regulation-making power to the Secretary of State to provide for the supply of copies of prosecution witnesses' statements "so far as is practicable", which is the language of his Amendment. Because the Government's view on this Amendment is closely related to some extent to their attitude on the other two, I will briefly touch on the other Amendments, particularly that of my noble and learned friend Lord Gardiner.
The major problem about my noble and learned friend's Amendment is where we would get the resources to implement it. We had yesterday a debate on the economic situation. I did not have the good fortune to be here, nor, I fear, have I yet had an opportunity of studying the speeches which were made, but I have a suspicion that a formidable number of speeches were made about the need to restrict public expenditure and, in the present situation, that is clearly of paramount importance. I must tell my noble and learned friend that the problem about his Amendment is that, in 655 our judgment, it would cost about £4 million a year to implement it. Of course, we can have an argument about how that figure is arrived at. The way in which we approached this matter was to get a study carried out by a large provincial police force, not far from London, to make a judgment about the effect in the area of that force and then to try to apply the lessons to the country as a whole. As I said, the figure would be £4 million and, quite bluntly, I fear that there are not the resources available to contemplate additional expenditure of that kind in the current economic situation.
I know that this will be a matter of some sadness to my noble and learned friend, but, at a time when we are having to make very substantial cuts, it would be very difficult to justify additional expenditure of this kind. The expenditure would particularly arise in police forces which are already under substantial pressure to limit their civilian manpower, and, in my view, it would be quite impossible to contemplate a situation where we add additional responsibility to the responsibilities which they already have. I am sorry to take such a negative view, because I know it will certainly displease my noble and learned friend, but I am afraid that at the moment, for the reason I have given, it would not be possible to contemplate expenditure of that order.
I come now to the noble and learned Lord's Amendment, which deals with a narrower question and has nothing like the resource implications. The proposal from the noble and learned Lord, Lord Hailsham, is much more limited, because it applies only to the offences mentioned in Schedule 2—that is, offences which at present are triable only on indictment, but which under the Bill would become triable summarily with the consent of the accused—and the offences to which Clause 23 applies. That is the second category. It follows, as I have indicated, that acceptance of an Amendment on those lines would have substantially smaller cost implications than would be the case with my noble and learned friend's Amendment. We estimate that about 700 people a year will choose to be tried summarily for offences now triable only on indictment, and the sum of money involved in providing the witness statements would therefore be quite small, and would not, 656 in any case, be extra expenditure. The provision about small thefts, which we shall be coming to later, and small criminal damage would involve some expenditure—around £200,000 a year, of which about two-thirds would be attributable to small thefts and one-third to small criminal damage.
However, the difficulty which we see about the noble and learned Lord's Amendment does not relate so much to the financial implications, as to the difficulty of finding a logical justification for dealing with this type of offence. If the information is of help to the defence in these cases, it is difficult to build a case for restricting it in this manner. I can see some argument for cases formerly triable only on indictment, because these are offences which have hitherto been considered as particularly grave ones—though the reason why the James Committee recommended that they should be transferred to the either way category is that they are no longer regarded as being quite so grave as at the time the Statutes creating them were first enacted. However, it would be particularly difficult to argue that there should be full disclosure of statements by prosecution witnesses where a small theft or a small degree of criminal damage was involved, but that there should be no statutory requirement if the theft or criminal damage was large. I listened with great care to what the noble and learned Lord said. I would not, for the reason I have indicated, want to give him any encouragement at the moment for thinking that we shall be able to change our position, but, obviously, I will reflect with my colleagues on what he has said today.
I can, I think, be slightly more accommodating on the second point that he raised; namely, the right of the defence to a second speech. We have a number of doubts about this subsection of the new clause. First, we are not sure about the logic of restricting the change, if a change is to be made, to these offences. If there is a case for the provision, we think it should properly apply to all offences which under the Bill will be triable either way. Secondly, whatever the merits of the proposal may be, we do not think it is necessary to have fresh legislation, because this is a matter which can be dealt with by an amendment of the Magistrates' Courts Rules, which are made by my noble 657 and learned friend the Lord Chancellor, after consultation with the Rule Committee.
Thirdly, so far as the merits of this proposal are concerned, I do not think that it introduces a very radical change. Nevertheless, we should certainly want to consult a number of other bodies about the proposal which the noble and learned Lord has made. Therefore, before we take a firm view on this part of his proposal, we should like to consult the various organisations concerned with court proceedings, such as the Magistrates' Association, the Justices' Clerks Society and, of course, the Law Society and the Senate of the Inns of Court and the Bar. Certainly we shall do that but, as I have indicated, it could be done without legislation. However, if the noble and learned Lord has any more views on the matter in the light of what I have said, I will certainly consider them.
§ Lord GARDINER
I do not desire to address the Committee now on my Amendment. Naturally, I want to have an opportunity to consider carefully what my noble friend Lord Harris of Greenwich has said. However, may I ask him one question. Not unnaturally, a large proportion of all our crime takes place in the great metropolis. As we know, the James problem is a London problem so far as the Crown Courts are concerned. Also, the magistrates' courts are in difficulties in London. When we are dealing with London, are we really thinking about a choice between 12 ordinary citizens and the justice of the peace, or are we talking about the choice between 12 ordinary citizens and one upper class professional lawyer who does the same kind of work with the same briefs day after day, week after week, month after month? I do not know. What is the proportion of London cases which are heard by justices of the peace and what is the proportion of London cases which are heard by stipendiary magistrates?
§ The Earl of MANSFIELD
May I ask the noble Lord, Lord Harris of Greenwich, two questions which arise from the Amendment of my noble and learned friend. It may be that at a later stage it could help to produce some kind of generally agreed Amendment. I have considered the Amendment, I hope fairly carefully. It seems to me that the result of 658 subsection (1) of his Amendment would be this: that in, for instance, a case of shoplifting—what we might call at this stage a Section 23 case—the inevitable effect would be that, at the very earliest, no case could be tried until 48 hours after the arrest had taken place in order that the procedures under subsection (2) (that is to say, notice that the prosecution intend that the case should proceed in a summary fashion and the preparation and serving on the accused of copies of any statement) could be carried out.
In the Chambers where I was practising, young members of the Bar started their career by prosecuting shoplifters in very large numbers. On many weary days I repaired to Marlborough Street at ten o'clock and the assorted humanity from Oxford Street was duly brought in. As anybody who reads the newspapers knows, a great many of these people are, first, foreign; secondly, on holiday; and, thirdly, subject to some kind of timetable. Therefore, with the best will in the world so far as my noble and learned friend is concerned, this provision, which is designed to help the accused in such instances, would in many cases be far less than warmly welcomed, if only from the point of view that a case to which they intend to plead guilty at the end, anyway, if they can summon up enough English or an interpreter so to do, is going to be delayed for 48 hours for the service of documents in which they are probably not interested. That seems to me to be a certain drawback so far as the first part of the Amendment is concerned.
So far as the second part of the Amendment is concerned, which deals with a second speech by the defence in a magistrates' court, I am not going to join in the general debate on the virtues and vices of one form of trial or another. Anybody who has practised in these courts has stories, both funny and tragic, to relate about what goes on in them. If I were prosecuting a case in a magistrates' court, especially that of a shoplifter, certainly I should not relish two speeches on the part of the advocate or solicitor representing the defendant.
I think it was in 1962 that an Act was enacted, as a result of the pressure applied by Mr.Ogden at the Bar, by which the defence has the last word. I should have thought that if there were any question in 659 the magistrates' court of the defence not having the last word then, either by some kind of an enactment which could possibly be imposed on the Bill or else by Rules of Court, the same effect could be achieved.
§ Lord WIGODER
While the noble Lord, Lord Harris of Greenwich, is preparing to answer a number of questions may I ask him one more? In calculating the additional expenditure that would be caused by the need to provide the defence with copies of prosecution witness statements made in the magistrates' courts, has any corresponding deduction been made first of all for the number of cases that as a result would be triable summarily and not on indictment? Secondly, has any deduction been made for the number of cases that would then result in pleas of guilty at the magistrates' court instead of lengthy committal proceedings, followed by trials, again at the Crown Court? Unless one is able in some way to envisage the results of Amendments such as those we are discussing on the balance of work, it seems to me that any figure which is given that merely relates to the existing balance of work is going to be wholly artificial.
§ Baroness WOOTTON of ABINGER
May I endorse what the noble Earl, Lord Mansfield, has said about the large number of shoplifting cases where any delay in obtaining documents would be greatly resented by the accused. My experience of hearing a great many shoplifting cases in the West End of London is that the typical case is the visitor from overseas who has £5 left in his pocket and who has a place booked on a plane to go home on Tuesday. Not only do you have to get the case taken quickly, but there is no effective penalty which you can impose.
§ 4.48 p.m.
§ Lord HARRIS of GREENWICH
A large number of points have been raised and I will try to deal with them to the best of my ability. The first was raised by my noble and learned friend Lord Gardiner. It was a statistical question relating to London. If I possibly can, I shall try to find the answer to that point before we come to the noble and learned Lord's Amendment. The noble Earl, Lord Mansfield, then raised two questions. First, he asked about the possibility of 660 delay. There is that possibility, particularly in terms of this Amendment. I would not want to place too much emphasis on this point because, as I indicated when I spoke, the number of cases which would be covered by the Amendment of the noble and learned Lord is fairly limited. The delay problem would possibly be much greater if we were to incorporate the suggestion made by the noble and learned Lord, Lord Gardiner, in his Amendment. However, I do not regard that as a very persuasive argument in terms of the Amendment that we are discussing now.
The noble Earl then came to the second speech point. Obviously, as I indicated, there are going to be differences of opinion relating to the second speech. That is why the Government wish to consult the various organisations, such as the Law Society and the other bodies which I mentioned. We want to take the view of those practitioners and others who are involved in the matter. The noble and learned Lord, Lord Hailsham of Saint Marylebone, has put it forward and certainly we wish to be accommodating. Therefore we shall endeavour to find out what are the views of those who are primarily concerned.
The noble Lord, Lord Wigoder, then asked a question. I had indicated that it was going to cost possibly as much as £4 million a year if we adopted the proposal of my noble and learned friend Lord Gardiner. In our view, that is certain additional expenditure. The noble Lord, Lord Wigoder, asked if we could make a calculation of whether people would choose summary trial if the Amendment were to be incorporated in the Bill. I fear that the answer is, No, it is quite impossible. It may be that more people would do so, but there is not certainty about it.
In our judgment, the one certain fact at the moment is that the Amendment tabled by the noble and learned Lord, Lord Gardiner, if adopted, would cost an additional £4 million and there would be substantial additional resource implications so far as the Police Service is concerned. I must repeat that in the present economic situation it is quite impossible to envisage changing the law in this way with resource implications of that character. It would have a profound 661 effect on the Police Service and we cannot just brush this away at a time when there is such stringent—and properly stringent—control of public expenditure.
§ Lord HAILSHAM of SAINT MARY-LEBONE
At the outset I promised that I was going to ask leave to withdraw the Amendment; but before I actually carry out my promise—which of course I shall do—I should like to comment to some extent upon the debate which has taken place. I hope the Committee feels that it has been useful. I personally think it is important. These matters have been on my mind for a long time and I am glad to know that experienced practitioners like the noble Lord, Lord Wigoder, and the noble Lord, Lord Foot, have shared my anxieties about it. They remain anxieties, and I am bound to admit frankly, to begin with, that they are not limited to the limited class of case which I sought to introduce.
I do not think I require justification for limiting in this way. I always have instructions—or at least petitions almost amounting to instructions—from my Commons colleagues that I should not propose things involving additional expenditure, because your Lordships know what things are down there. They say, "The Tories are insincere. Every time they ask for less Government expenditure they do nothing but put forward Motions involving increased expenditure". Of course that is all rubbish. But at the same time I am a most punctiliously loyal member of my Party, and I thought the thing could be justified in a good way because the class of case to which I have limited my proposals is precisely the class of case in which the Government are proposing to take away the right to trial by jury. If you are taking away a right, then in my view an additional safeguard in place of it is justified.
I fully agree with the general approach to this problem made by the noble and learned Lord, Lord Gardiner, if it can be carried out; and I would say one thing to the noble Lord, Lord Harris of Greenwich: it is all very well to say that it will cost £4 million, but there are people in this country—and I am not sure that I am not one of them—who think that we ought to put a priority on justice as the first of the social services. It is not really satisfactory to say that you are going to 662 try people, whether summarily or otherwise, for offences which have hitherto been triable on indictment, and you really cannot afford to give them a fair trial in the new method.
It seems to me that £4 million could be saved somehow, on the noble Lord's expenditure or perhaps on the expenditure in some other Government Department, so that there would not be a net increase at all. In £50,000 million, which is what we are spending every year, I should expect to find at least £4 million worth of "fat" to be able to spend on providing elementary justice for the subject. Therefore I am not altogether impressed by the noble Lord, Lord Harris, despite the instructions which I have received from my colleagues in the Commons. I have justified so far as I can my choice of the narrow segment to which this particular Amendment refers, and I have done it on the basis that you are taking away a right and I am entitled to insert a safeguard in place of the right you are taking away.
Secondly, I would say both to the noble Lord, Lord Harris, and to my noble friend Lord Mansfield, that I would not altogether be satisfied with the last word when I was calling a lot of witnesses in a case involving the reputation of my client. Take the case of Docherty, for instance, which was a shoplifting case. In that case there were 53 potential witnesses for the defence, all of whom would have testified to the innocence of the accused; and not to be able to comment as well as open in in such a case, I should have thought would have been an injustice, and although I do not remember what was the amount of the property lifted, it might well have been less than £20 and it would have had the same result if it had been. Perhaps the noble and learned Lord, Lord Gardiner, who will remember the case very well, does remember what the amount was. So my noble friend's suggestion would not wholly satisfy me although of course it would be an improvement on the existing situation.
I really do not think it would be wholly satisfactory to go round the Bar Council and the solicitors and the magistrates, and so on. It would take a great deal of time. This is the first time in my experience in Parliament, which goes back now to 1938, that we have been able to discuss this problem at all. Will it be 663 another 40 years before we get another chance, if the Government do not do what we want? I hope not. And when we come to this subject again, as we shall do on the Committee stage and probably later on Report, I should relish the Government being a little more forthcoming with positive assurances that, either here or in another place, they will themselves undertake to make Amendments, at any rate in the sense, if not in the terms, that I have proposed.
There was a good point about delays made by my noble friend. It is possible, as the noble Baroness, Lady Wootton of Abinger, said, that in some shoplifting cases, where ladies out of the harem "lift" something in Oxford Street because they go berserk when they see how rich we are in this country, that can be got over by means of a drafting Amendment. I think one only need put in an Amendment that these provisions could be waived where necessary, and that problem could be got round. I think the debate has been a useful one. I am grateful to the noble Lord, Lord Harris, for not turning me down flat, and, as I promised to do, I now ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clauses 17 and 18 agreed to.
§ Clause 19 [Initial procedure on information for offence triable either way]:
§ 4.58 p.m.
Lord DONALDSON of KINGS-BRIDGE moved Amendment No. 38:
Page 13, line 13, leave out from ("proceed") to ("if") in line 14 and insert ("in the absence of the accused in accordance with such of the provisions of sections 20 to 23 below as are applicable in the circumstances").
§ The noble Lord said: This is a purely procedural Amendment and I hope it will not give the Committee much trouble. Perhaps I may first comment on the economic plans of the noble and learned Lord opposite for raising £4 million. I cannot resist saying that it is an argument I use about twice a month, but I have not so far been very successful!
§ The object of these two Amendments is to relieve the court of the necessity of going through a rather elaborate procedure which is suitable when the 664 defendant is present but which is not suitable when he is not present. Clause 19 (3) enables a magistrates' court to proceed with the determination of mode of trial in the absence of the accused where he has been removed from the courtroom for noisy behaviour, which increasingly one finds happening, certainly in a number of Irish cases. As the subsection is drafted, the court is required to work through each of the various procedural steps set out in Clauses 20 to 23. But if the defendant has had to be removed and is not legally represented there is clearly little point in doing all this.
§ The only possible outcome in these circumstances, if the accused will not answer, or answer sensibly, is committal proceedings. Therefore the court should be able to move straight to Clause 21(3)(b), which provides that it shall proceed, as examining justices, to inquire into the information. Similarly, where in any case trial on indictment appears to the court to be more suitable, the procedures in Clause 22(2)—which require the court, before so deciding, to explain to the accused that he has a right to make any representations in favour of summary trial and to give him the opportunity to do so—serve no purpose where an unrepresented accused has been removed from the court-room by reason of disorderly conduct and is not prepared to listen or to answer rationally. The Amendment to Clause 19(3) would allow the court to miss out the stages of the procedure which were clearly inapplicable in these circumstances.
The Second Amendment, to which, by leave of the Committee, I will also speak, is an Amendment to Clause 24(2) and is consequential. Clause 24(2) at present provides that where an accused is represented by counsel or solicitor, who in the absence of the accused signifies the accused is consent to the mode of trial proceedings being conducted in his absence, the court may (if satisfied that there is good reason for doing so) proceed in the absence of the accused—
in accordance with such of the provisions of sections 20 to 23…as apply in the circumstances".
The word "apply" is used simply to take account of the fact that Clauses 21 and 22 are mutually exclusive. But the rather subtle suggestion is that it would be better,
if Clause 19(3) is accepted, to use the word "applicable" instead of "apply", and that is what the second Amendment attempts to do. I beg to move.
§ On Question, Amendment agreed to.
§ 5.2 p.m.
Lord DONALDSON of KINGS-BRIDGE moved Amendment No. 39:
Page 13, line 38, at end insert (", but the foregoing provision shall not be taken to authorise the summary trial of an information by a magistrates' court composed of less than two justices.").
§ The noble Lord said: This again is an Amendment about procedure, though rather more weighty than the last. Under the existing law a single justice may commit an accused for trial at the Crown Court but may not try him summarily. When an accused charged with an indictable offence first appears, the justices are examining justices, and the functions of examining justices may be discharged by a single justice. The examining justice or justices must then commit for trial at the Crown Court unless, either the offence is listed in the First Schedule to the Magistrates' Courts Act 1952 as triable summarily with the accused's consent, or, secondly, the accused asks for summary trial and the justice or justices agree to this course.
§ However, if the accused does ask for summary trial and the examining magistrate, if sitting alone, agrees, he then cannot proceed to try the case summarily because Section 98 of the Magistrates' Courts Act 1952 provides that a magistrates' court may not try an information summarily except when composed of at least two justices. The examining magistrate, therefore, has to adjourn to enable a full court to be brought together. This will also apply under the Bill. Clause 19(5) enables the mode of trial proceedings to be conducted by a single justice, but if the justice decides that the case is more suitable for trial in the magistrates' court (and the accused consents to summary trial) he will have to adjourn the proceedings to enable a full court to be brought together. The purpose of this Amendment is to make this possible. I beg to move.
§ Baroness WOOTTON of ABINGER
I am very grateful to my noble friend for having moved this Amendment. It covers a point which I raised on Second Reading, As the Bill now stands, it reads: 666The functions of a magistrates' court under sections 20 to 24 below may be discharged by a single justice.The functions described below in Clauses 20 to 24 do include the hearing of summary trial, and no reference is made to the Magistrates' Courts Act 1952 which prevents a single justice from performing this function. I did, therefore, feel that any simple lay person reading this would believe that a single justice could do it. I am very grateful to my noble friend for having cleared up the point.
Baroness WARD of NORTH TYNE-SIDE
May I ask the noble Lord a question. I am not absolutely certain whether it fits under this particular Amendment. As I have been a magistrate for a very long time, I am naturally interested in all the discussion going on. As this Bill—when we have decided upon the Amendments we are going to include—has to go through both the Commons and the Lords, it would be extremely useful if we knew who are magistrates, because most of these things have to be discussed, of course, with the Magistrates' Association and all the various bodies. It is going to be extremely difficult for people who have never been a magistrate to understand all the complications which can arise.
When I was in another place for such a long time there hardly seemed to be any magistrates at all. Whenever there was a General Election a large number of people would come rushing round asking me whether I would sign their election expenses; of course, I was delighted to do it. When we are dealing with a very complicated Bill like this, which has to be passed by the Commons and the Lords and has to be implemented afterwards, it seems to me that it will be very difficult for Members of another place, as well as perhaps Members in this place, to know all the complications if they have never had any magisterial experience.
§ Lord DONALDSON of KINGS-BRIDGE
I think magistrates' labels is a matter which we may come to. In dairy farming it is usually considered that the better dairyman does not need to number his cows; he knows them by their faces and their performances. So I do not feel certain that this is really necessary. I do not think the Government would take a view against it. It would be up 667 to the Magistrates' Association. I, unfortunately, never having been a magistrate, would be unable to wear a badge.
§ On Question, Amendment agreed to.
§ Clause 19, as amended, agreed to.
§ Clause 20 [Court to begin by considering which mode of trial appears more suitable]:
§ On Question, Whether Clause 20 shall stand part of the Bill?
§ Viscount DILHORNE
There is one point I should like to raise in regard to this clause. This concerns where we get to the position where the court is required to make decisions not on evidence but on representations. It provides that the court is to have regard to representations in deciding which is the more suitable mode of trial, summary trial or trial on indictment. Subsection (2) specifies the matters to which the court—which may be a single justice—must have regard; the nature of the case, whether the circumstances make the offence one of a serious character, whether the punishment which the magistrates' court would have power to inflict would be adequate, and any other circumstances which appear to the court to make it more suitable for the offence to be tried in one way rather than the other.
That must involve a very considerable investigation into the full character of the case; that is, its gravity. It may be a serious charge or not such a serious charge but a serious case because of the circumstances in which the offence was committed. I am not objecting to such an inquiry or to it being based upon representations. But what does worry me a little is this: is it really right that the magistrate who conducts that deep investigation before hearing any evidence should then go on and hear that case? May it not be the position that a magistrate will have his mind affected, when he comes to hear the evidence, by what he has heard already from both sides in the way of representations, and particularly perhaps representations by the prosecution as to the gravity of the offence. I say this because I think it arises out of what Lord Donaldson said just now; that is, that a single magistrate could not sit but would have to adjourn and be joined by someone else. I think it would be very desirable 668 if you could provide that the magistrates who conduct this inquiry, in settling the mode of trial, should not be the magistrates who would preside over the trial if the decision was that it should be a summary trial. I should have thought that that would not involve £4 million in expenditure. It would not involve undue delay and, therefore, I hope that the suggestion will be favourably considered. This occurred to me when I read the Bill, but having regard to the fate of so many of my Amendments I did not take the trouble to table one.
§ Lord HARRIS of GREENWICH
Certainly I have no intention of censuring the noble and learned Viscount for not having done so. He has made the point and I should like to consider it. His suggestion could have significant implications and I should like to reflect on it.
§ Clause 20 agreed to.
§ Clauses 21 and 22 agreed to.
§ Clause 23 [Certain offences triable either way to be tried summarily if value involved is small]:
§ 5.11 p.m.
Lord MORRIS of BORTH-Y-GEST moved Amendment No. 40:
Page 15, line 40, leave out paragraph (a).
§ The noble and learned Lord said: The proposal contained in the first part of Clause 23 of the Bill is one that has been viewed with very great concern by wide sections of the public. Having listened to the interesting speeches of the noble Lords, Lord Bruce of Donington and Lord Brockway, perhaps it might be convenient if, in a sentence or two, I indicate my general approach to Part III of the Bill—an approach which is perhaps shared by other noble Lords who are associated with this Amendment.
§ Undoubtedly in the year 1973 there was a case for considering whether pressure on the Crown Courts might be relieved by a distribution of work so that more work went to the magistrates' courts, taking away to that extent from the Crown Courts. It was right to have looked into the matter and it was eminently right for the Committee to have been appointed. The public owe a great debt of gratitude to the late Lord Justice James and his 669 colleagues for the wonderful report that they produced. I, and many other noble Lords, gratefully accept the major part of all the recommendations. We believe that there was a case to distribute business and that it is right to allocate business so that many matters are now made triable only summarily. Where some of us have great alarm at this first part of Clause 23, and where the dividing line comes, is where there are offences which, because they involve honesty; involve the honour and the reputation of the accused. We believe that there is, in principle, a dividing line and that we should be taking a retrograde step if were we to put those cases into the category of cases that can be tried only summarily, thereby withdrawing the right to trial by jury.
§ As your Lordships well know, the effect of the first part of Clause 23 as it stands would be to take away from someone charged with the theft of property of a value not exceeding £20 a right which he has always enjoyed—the right to have the charge tried by a jury of his countrymen. Many charges that at present would entitle someone to have trial by jury, many of us feel could now, rightly, be put in the other category. However, I submit, for reasons which I shall endeavour to outline to your Lordships, that the case for changing the law by withdrawing the right in the case of charges of theft because the property is of a value under £20 has not been made out. I submit that that step would be a retrograde step.
§ A real question of principle is involved here and I very much hope that the Government will accept this Amendment. If it is accepted it will restore and so maintain the existing right and would withdraw the strange and illogical fetter which this clause would impose. If we are considering whether a charge is or is not serious or whether an offence is or is not trivial, can we possibly say that it is serious if the amount is £21 but it is trivial if the amount is £19? Honour and reputation are not to be measured by such irrelevant and barren tests.
§ The right to trial by jury on the charge of theft has always existed. And why? Because inherent in our system is the procedure that serious charges are to be tried by a jury. Until the middle of the last century the normal mode of trial for 670 criminal offences was trial on indictment by a judge and jury. Justices had of course extensive criminal jurisdiction when sitting in quarter sessions with a jury, but their summary jurisdiction was very limited. Then as time went on many offences deemed by the community to be minor offences were made triable only summarily. There are, of course, a very great number of them. Then came certain provisions enabling some indictable offences to be triable summarily. There were some provisions which enabled justices to try some cases of theft with the consent of the accused.
§ However, ever since 1879 there has been a general statutory right to claim trial by jury where the maximum sentence on summary conviction exceeds three months' imprisonment. Why then should we change that existing right? It is said: "Oh well, the courts are rather pressed." So they are. But it is acknowledged that cases that involve serious charges should be tried in the higher courts. Is it said that now and for the future charges of stealing when the value is under £20 must be regarded as less serious than they used to be? What are the criteria? Great consideration was given to them in the James Report.
§ I point out, as the noble Lord, Lord Bruce of Donington, pointed out, that the terms of reference of the James Committee involved a consideration, within the framework of the existing court structure, of what should be the distribution of criminal business. It was no inquiry as to whether we want to change the framework of the existing court structure; as to whether there are any improvements to be made in methods of trial. It was merely whether we can now put some offences in the category that they can only be tried summarily, whereas before they were offences in the category that enabled the accused to have a jury if he so wished.
Over and again in the report it is recognised that the more serious offences should be tried in the Crown Court and the less serious offences in the magistrates' courts. Paragraph 35 of the James Report:
The present system, in which there are two levels of courts of trial, is based upon the premise that the most serious offences should be tried by the Crown Court and the less serious by the magistrates' courts.
With respect, I would say that is absolutely right. Paragraph 41 of the report deals with the criteria that should be under consideration. It poses the question:
What are the criteria for deciding whether an offence should be tried on indictment in the Crown Court or at least be capable of trial there?
Then they point out that the test of what is serious involves considering what is serious from the point of view of the country, the community, or what is serious from true point of view of the individual. Towards the end of that paragraph they say:
But they need not coincide: a trivial theft is not a serious threat to society, but it may be of great importance to the defendant if conviction is liable to result in the loss of his reputation or livelihood.
And they finish:
For the purpose of determining whether an offence should be triable on indictment the primary consideration must be the seriousness of the offence in the eyes of society. It is right that society's view of the most serious offences should be signified by their being tried in the higher level of court.
It would be impracticable, even if it were desirable, to categorize offences in accordance with their importance to the defendant…
I would not, with great respect, wholly agree with that. I should think that surely in the interests of the country it would be right to consider the individual and his position.
If you are taking the test of what is serious from the point of view of the country, in paragraph 74 of the Report it is said:
The aim of the system for regulating the distribution of criminal business between the Crown Court and magistrates' courts must, therefore, be to ensure that, as far as possible, the offences tried in the Crown Court are the most serious two to three per cent. of offences. (As we have said, in this context the primary consideration must be the seriousness of the offence in the eyes of society.")
If one takes that test, has anything changed in the year 1977? Up to now on the charge of theft the accused has had the right, and always had the right, to go for trial before a jury if he so wished. Is it now to be said that stealing is to be regarded as less serious than it was? The Commandment tells us, "Thou shalt not steal". Would anyone wish to say that in 1977 you can add a little addendum,
"but you need not worry so much if the amount is under £20"?
If the test is seriousness in the eyes of society are we really to say that in 1977 the eyes of society are prepared to blink? Take the case of a man charged with stealing a £5 note. Supposing he says, "I am entirely innocent, and I want this matter investigated in the way in which it has always been possible for someone placed as I am to have it investigated". He may say, "I can well understand that there were circumstances which caused some people to take a mistaken view. I can well understand how it comes about that I was charged, but I am absolutely innocent, and I want to run no risk what-so-ever. I want to have this case fully investigated. I want to have the case for the prosecution developed so that I know fully what it is. If I go for trial I will have a professional judge, and there will be 12 of my countrymen who will be deciding whether I am guilty or not. I am convinced that they will, without doubt, say that I am innocent". Will not he say, "What does it matter whether it is a £5 note or a £10 note, my reputation is involved just the same. Five pounds does not matter.
'who steals my purse, steals trash;
'its something, nothing;'—
It was his; it was mine—
'and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed '.
It may be said, "But would not such a man be acquitted by the magistrates?" Very likely he would. But he has always known that he has the right to a different trial. He has known that the charge of stealing has been a serious charge. In wishing to go before a jury and to exercise his right he is not reflecting in any way on the trial before magistrates.
§ The noble Lord, Lord Bruce of Donington, cited a leader that was in The Times newspaper, and the opening words extol belief in this country of trial by jury. I thought that was a very effective passage. Not one single word will I utter by way of criticism of magistrates. I have infinite respect for their work. I have the advantage of a period of 30 years as deputy chairman and 26 years as chairman of quarter sessions. I had infinite opportunity to observe the work of 673 magistrates. I know how zealously they discharge their duties, how anxiously they face their responsibilities. They take a lot of trouble. They go to courses and they are well advised by skilled advisers. But it is a different system. The trial before the jury will be a continuous trial. The accused will know what the case against him is, and he is fully entitled to say, "Well, that is the kind of trial that I want, and I have always been entitled to it". Why should it be taken away from him?
§ Of course I am prepared to recognise that there are cases where an accused person has elected to go before a jury for unworthy reasons. He may think, "Well, I know I am guilty but you never know with a jury; they may return a sympathetic verdict. I cannot lose very much by going", and so he goes—an unworthy motive. The wit and charm of the Irish people were much in evidence in the remark made by a judge who had been trying criminal cases many years ago in Limerick. The jury returned a verdict of "Not guilty" and the judge said to the prisoner: "You are discharged. You may go. And I may add that you leave this court without a stain on your character, beyond that you have been acquitted by a Limerick jury!" There is no situation where the argument is entirely one way; I have never known any debate in your Lordships' House where it can be said that all the argument directs one conclusion, and it would be foolish not to acknowledge that there are different points. However, I submit that in this respect the arguments against a charge are overwhelming.
§ We should also be told more about the figures involved, apart altogether from the principle. We do not yet know how many cases are involved in this suggested change. I had from the noble Lord, Lord Harris of Greenwich, this morning the figures that other noble Lords have had and I thank him for his courtesy in letting us have them. Do we anywhere find in those figures the number of cases that would be affected by this proposal? We can see from the figures that in regard to all cases of theft—I exclude theft from the person because that is exluded from the Bill—if my mathematics are right, 215,000 or more cases of theft go to the magistrates' court, and it is significant that, of those, no fewer than 196,000 plead 674 guilty. None of that will be changed if the Committee accepts the Amendment because many of the people will say "Far better for me to get this over", or "Of course I am guilty", or "They have found me out and there is nothing I can do". Of shoplifting cases, if my additions are correct, and likely they are not, about 67,000 cases go before the magistrates and over 61,000 of them plead guilty.
§ Consider the Crown Court. We have some figures of cases where the amount is under £5. It seems that the number is very small, under 2,000. I would be glad to know, when the time comes for us to be given information, whether that figure is about right. No figures are available where the figure is under £20. Should we not know before we are invited to make this change? It is said that there are other cases where honour is affected and where there is at present no right to go to a jury; a case of travelling on the railway without paying fare and with intent to cheat is one. It may be that cases where honour is so affected are cases where there should be the right but where there is no right at present. Then it is sometimes said that there is always an appeal and that the man who is convicted can appeal and have a re-hearing. I suggest that that is a forlorn argument; though a successful appeal will to a great extent remove stigma, it cannot wholly remove it.
Then we must face up to the question as to why this change is proposed, and it is summarised in the report at paragraph 87 under the heading of "The Choice to be made" in these words:
We think that small theft should not be triable on indictment. We have come to this conclusion only after long and careful consideration of the cogent arguments for and against the proposal. In the last analysis society has to choose between two conflicting aims. On the one hand is the existing right of the citizen to be tried by a judge and jury on any charge of theft of criminal damage"—
My Amendment deals only with theft; I am not demurring to the new proposal in regard to criminal damage because I do not think questions of honour and reputation are similarly involved—
however small the amount involved. On the other is the right, especially important to anyone defending a serious charge, to be tried as soon as possible. These two requirements have to be met with resources which are finite and cannot be
further expanded without limit. At present, defendants on serious charges are suffering the injustice of long-delayed trial while the time of the Crown Court is partly occupied with minor cases of low monetary value.
The noble Lord, Lord Wigoder, in his very powerful speech on Second Reading, asked: where is the possibility in this part of the country of putting more work into the magistrates' court? Where is the greatest pressure and where are the greatest delays? The noble Lord asked a number of questions as to whether it really was practical politics in this part of the country to put further work on magistrates when it is very difficult already to get dates. Thus, his argument, which I thought was so powerful, was that this really involves tampering with a principle of importance in the interests of a non-existent expediency; and that the change is being made for reasons of expediency cannot be denied.
§ My noble and learned friend Lord Edmund-Davies has asked me to say that he regrets not being able to be here this afternoon owing to a commitment made a long time ago which he could not possibly avoid. In his Second Reading speech, in reference to this argument of the report, he said that the attainment of speed for the second man must not be purchased by denying the first man a right which has been his for centuries. I am thinking of the absent-minded scholar who goes into a shop, picks up a book and takes it away with him without paying for it. I am thinking of the absent-minded housewife who takes something but who never intended to steal it. I am thinking of the honest person who, in agony, says, "The defence that I will put forward is the sort of defence that will have been heard time and again. Will they believe it?". I am thinking of the employee who is charged with taking something from a fellow employee. I am thinking of the man whose post will be lost if he is convicted of theft, whatever the amount. I am thinking of the man who may lose his pension if he is convicted of theft of a small amount. I am thinking of the man whose place in society will be irretrievably lost if he is convicted of an offence involving dishonesty.
§ Why is this change being made? I have great sympathy with the difficulties of every Lord Chancellor, each one of whom has 676 done so much in recent years to try to cope with the problem. They have provided new judge power and they have been able to produce accommodation in places in which one would at first have been surprised to think that a criminal trial was taking place. They have done everything possible, but I am thinking of the point of view of the accused who says, "I want to go for trial: why can't I?". Do we say, "We are very sorry, we really are rather pressed because there is a lot of crime and we cannot allow you to have the trial you would always have had in the past?" Would the accused not be entitled to say, "I am sorry, it isn't my fault that there is all this crime. I am an innocent man and if the charge is presented against me surely I must be allowed to defend myself in the way people in my position have always been able to defend themselves?" I suggest that there are many ways of shortening trials that might well relieve the present position. I submit that here is an important point of principle and that the case for a change involving the withdrawal of a cherished right has not been made out.
§ The LORD CHANCELLOR
In view of what I propose to say, it may be for the convenience of the House if I intervene at this moment if the noble and learned Viscount, Lord Dilhorne, will permit me to do so. This is clearly a crucial part of the Bill and it raises a very important question. As I see it, the question we have to consider on this Amendment is whether small thefts are to be treated as of so serious a nature as to justify giving those accused the right to elect trial by jury, assuming, as we have to assume, that the resources available to the Crown Court where the accused would have to be tried will continue to be limited while the volume of work coming forward for jury trial continues to increase. That is the problem.
I have said that we must assume limited resources. What does that mean in terms of the administration of justice? The fact is that we are facing an increase in crime that inevitably results in an increase in the case loads for the courts at all levels. This creates a demand for judge power, for more court buildings, for more court staff and for other resources. So far as judge power is 677 concerned, I cannot appoint a new circuit judge every time 200 more cases come to be tried in the Crown Court. The noble and learned Lord, Lord Morris, has asked what numbers we are concerned with in this matter. Twenty-two thousand persons a year now opt for jury trial in charges involving thefts of property under the value of £20. That equals the work of 10 full-time circuit judges. Court rooms, as Lord Chancellors present here and I well know, are a pressing problem. Leaving aside accommodation which is now coming forward for completion, there is no question of new permanent accommodation for the Crown Court becoming available in the foreseeable future. The possibility of temporary or shared accommodation has been pretty well exhausted. At the same time, the court service is now subject to expenditure limits and limits on staffing like all other Government Departments.
This is not only a matter of resources, but a matter of principle which, I believe, was faced up to by the James Committee when it said,We have approached the issues from the standpoint of principle.Of course it is that standpoint upon which the noble and learned Lord has also stood. However, this is how the James Committee approached it:Our aim has been to determine what distribution of criminal business between the Crown Court and the magistrates' courts is most consistent with the interests of justice, balancing the interests of defendant, the prosecution, the public and the courts to which the public entrusts the administration of the criminal law, and taking account of the need in any system of criminal justice to ensure that accused persons are brought to trial quickly and efficiently. The demands made on the Crown Court by the volume of criminal business and the considerable expense of trial in the Crown Court are important factors to be taken into account, but they are not the only factors.When the House debated the matter on Second Reading, there was some doubt—and this has been expressed today by the noble and learned Lord—as to whether the James Committee was right when it said that the primary consideration in determining whether an offence should be dealt with in the Crown Court was the seriousness of the offence in the objective sense—that is to say, the seriousness with which society regards the offence rather than the seriousness to the defendant 678 himself in terms of the consequences of conviction for him. I suppose that the argument against the view taken by the James Committee was eloquently expressed in the portion of Shakespeare that the noble and learned Lord quoted to us, though whether it comforts him to know that it was a speech of Iago, not Othello, is a matter for his impeccable judgment. However, the conclusion at any rate of the James Committee was that thefts of small value did not justify the elaborate and expensive method of Crown Court trial. The Committee decided that they could properly be tried summarily in the magistrates' court, from which, as the Committee emphasised—and I feel that this has not been sufficiently emphasised in the discussion of this matter—an appeal lies to the Crown Court and that, as your Lordships will know, involves a complete retrial of the case and an opportunity to call any fresh evidence that may be needed and to correct errors that may have occurred at the trial. Of course that facility is not available on an appeal from the Crown Court.
The clause, as drafted, gives effect to what the James Committee recommended. It was a Committee which was set up under the last Administration by the noble and learned Lord, Lord Hailsham, to consider the very problems that I have summarised. Its chairman, Lord Justice James, whose death we lament, was an able, humane, compassionate and respected judge who, I am quite sure, would not have sought to undermine the rights of those who were innocent or who claimed innocence. He had a great knowledge of the courts at all levels and I feel sure that, like myself, he would have been dismayed and concerned at the denigration of the quality of the justice administered in the magistrates' courts which has accompanied much of the comment on the issues which we are discussing. Of course this has not been the case in your Lordships' House; on the contrary, noble Lords have explicitly refuted those suggestions.
I am not saying that the administration of justice in the magistrates' courts is perfect and, if I may say so, I have a good deal of sympathy with the procedural suggestions mentioned earlier by the noble and learned Lord, Lord Hailsham. But I think that it is of very high quality. 679 Ever since the war, successive Lord Chancellors of both Parties have achieved through the appointments system and the training schemes for magistrates very considerable improvements in the standards of the magistracy. Of course magistrates do not claim that they produce uniformly ideal standards. Indeed, the reference to the Limerick judge indicates that the noble and learned Lord does not claim that for all jury decisions. It is said—quite unfairly, I think—about juries in my Principality of Wales, "Welsh juries are against crime but they are not dogmatic about it!" I do not accept that, of course, but there is no perfection, at any rate in regard to the administration of justice in the jury system.
I think that it is regrettable that so much public and printed discussion of this issue has in several instances been conducted in terms which denigrate the magistracy. It is worth reminding ourselves—I do this perhaps more for the benefit of those outside than for your Lordships who are familiar with the facts of the situation—of some basic facts. In 1975 no less than 87 per cent. of the 380,000 people charged with indictable offences triable summarily with the consent of the accused elected to be tried in the magistrates' courts. In the case of offences of theft—that is, what we are talking about today—which constitute by far the largest single category, the proportion of those who could have gone on trial by indictment but who chose to be tried summarily was 91 per cent. What confidence is shown there in the magistrate system.
When it is said that one does not have such a good chance of getting off (if that is the right way to put it) it is very interesting to note the success rate of appeals from magistrates, on the one hand, and from the Crown Court, on the other, to illustrate that the appeal systems operate. The success rate for those appealing from magistrates' courts to the Crown Court and for those granted leave to appeal from the Crown Court to the Court of Appeal is not significantly different, so the appellate system would seem to be functioning with equal efficiency in both ranges of our courts.
With regard to the proposition which seems to be taken for granted by some learned leaders of the legal profession 680 in their correspondence with the newspapers—namely, that magistrates are less likely to acquit than are juries—my noble friend Lord Harris of Greenwich has cited some of the remarkable figures that are published in Hansard today which present an opposite picture. So far as the theft aspect is concerned they show—and I encourage noble Lords to look at those interesting statistics—that for shoplifting offences of property of less than £5 52 per cent. of those pleading not guilty were acquitted by magistrates and 57 per cent. by the Crown Court. That is a little better performance—not much—by the Crown Court. Where the amount involved was £5 and over magistrates acquitted 50 per cent. where they pleaded "not guilty" and the Crown Court, 38 per cent.
Under the large general heading of Other Theft, magistrates acquitted 64 per cent. in fought cases involving less than £5, while the Crown Court acquitted 61 per cent. Where the amount involved was £5 and over magistrates acquitted 61 per cent. and the Crown Court 56 per cent. Where the principal offence charged—this is a matter of interest—was an assault on a constable, magistrates acquitted in 27 per cent. of contested cases and juries in 20 per cent. So one does not exactly get a view emerging from these statistics that magistrates are more prosecution-minded than are juries.
I now wish to press your Lordships to consider before we come to a conclusion on this matter what are the practical implications of removing Clause 23 from the Bill. As I have said already and on another occasion, we are suffering from continuing, increasing and cumulative delays of the bringing of cases to trial in the Crown Court. There are at present some 20,000 people awaiting trial. The situation in Brixton prison, which is the remand prison, was graphically described in a letter from a prisoner there which was published in the Guardian a few days ago, in which he said, incidentally, that he was not very impressed with my tears on their behalf. I do not blame him. The position is that, so far as he complained of overcrowding, of course there it is true. During 1976 Brixton was continually and heavily overcrowded, holding around 1,000 prisoners—we are talking about remand prisoners awaiting trial—in accommodation normally intended to hold 500.
681 The great majority of those prisoners were on remand from the courts or committed for trial. It is wrong to call them prisoners; they are people awaiting trial. Many of them will be acquitted and a larger number will never go to a custodial sentence at all. But when the prison there is full more than 309 men are trebled up in cells intended for one person and some of the 500 are doubled up. The strain on physical resources and on visiting conditions is considerable; so of course is the strain on those in custody there.
It has been suggested on Second Reading that the problem of delay in the Crown Court is largely confined to London. That is not so. It is true that the position in London is noticeably worse than it is in the rest of the country. The current average waiting time between committal and trial for all defendants, whether on bail or in custody, is 19.3 weeks in London, 13.1 weeks in the rest of the South-Eastern Circuit, which is a large circuit with a large number of courts, and 7.5 weeks for England and Wales excluding the South-Eastern Circuit. To this must be added the time, that is often substantial, spent in custody before committal.
But the problem goes beyond London for two reasons. First of all we have been holding down London waiting times by transferring business from there to the rest of the South-Eastern Circuit, whose figures have deteriorated steadily from 1972 up to now as a result. Secondly, although the figures for the rest of the country, apart from the South-Eastern Circuit, are noticeably lower than for London, there are clear signs of a deterioration in the rest of the country, in which following a reduction in waiting time in 1973 and 1974, there has since been a constant increase, so that the present position is worse than it was in 1972 when the Courts Act came into force.
It has been suggested, and the noble and learned Lord, Lord Morris of Borth-y-Gest, raised it in his speech, that delays before summary trials in magistrates' courts are no less than delays in the Crown Court, but that is not so. First it should be noted that waiting times in the Crown Court are computed from committal and until trial, and take no account of the period from arrest until 682 committal which tends to be far longer in Crown Court cases than in magistrates' court cases. Any comparison between waiting times for trial before magistrates and the Crown Court should take account of that fact.
It is unfortunately not possible to produce overall figures for waiting times in the magistrates' courts. Nevertheless the current estimates, from what I believe to be representative courts, show that outside London magistrates can offer notably speedier justice than the Crown Court. In London admittedly the situation in the magistrates' court is bad, but bearing in mind particularly the time between arrest and committal it is only half as bad as it is in the Crown Court. Those are the facts.
I have to face your Lordships with the fact that the proposed transfer of business from the Crown Court to the magistrates' court would involve a worthwhile reduction in delays in the administration of justice. This is what we shall be casting aside if we approve and pass the Amendment. It would involve, as I have said, the saving of the need of 10 circuit judges full time, and I must tell your Lordships that while I appreciated the kindly references of my noble friend at the beginning of the debate about the high quality of the Bar, nevertheless there must be a limit in capacity of the Bar and solicitors to provide the right quality of judges to man the Crown Court at the rate of increase that has been taking place in recent years. Then there is the question of courts, of court accommodation and of finance that I have mentioned. If I may say so without unkindness, those who are claiming total virtue and high principle for their opposition to what is proposed in Clause 23 will not so readily be acclaimed by those who, as a result, will have to wait longer in prison for their trial.
Nevertheless, I have not been unmindful of the strength of feeling which was expressed in all parts of your Lordships' House on Second Reading, and which has been expressed strongly in another place and also in public comment from all quarters of the political compass, that apparently at all costs this right to trial by jury for small thefts must be maintained.
§ The LORD CHANCELLOR
And I see that, in spite of my statement as to the cost of doing so, this is immediately echoed in this Chamber. I am very conscious, holding my office of Lord Chancellor, that public confidence in our system and administration of justice is of crucial importance; and if insistence on what is proposed in Clause 23 does risk diminishing that confidence, I acknowledge that the better course would seem to be to permit the Amendment to be carried. But when I put it in that way I am bound to tell the Committee that, if we do so, it will be at the price of increasing anxiety about the administration of justice in our higher courts which it would indeed be irresponsible to ignore.
§ Viscount DILHORNE
If I may—I think my name is down to the Amendment—I should like to say a few words in reply to the noble and learned Lord the Lord Chancellor. I said that my name is down to the Amendment: there is no significance, I think, to be attached to the fact that it appears between the names of two of my noble and learned friends who both come from the Principality. The eloquence can be left to them. Indeed, my noble and learned friend Lord Morris moved this Amendment with a very great degree of eloquence. There was only one phrase he used which disturbed me. He paid a great tribute to Lords Chancellors, and then he added, "in recent years". The noble and learned Lord the Lord Chancellor has made a very powerful speech which deserves very careful consideration. I must confess to him that, while he has put forward very grave arguments, he has not convinced me yet that it would be right for the Bill to stay as it is, and, if I may, I will quite shortly tell him why—and I will do so, not seeking to emulate the eloquence of those who come from the Principality.
It was not so very many years ago that we were seeking means of relieving the pressure on magistrates' courts, and we did so, as the noble and learned Lord will recollect, by relieving magistrates of the burden of sitting day after day hearing depositions being taken. We provided a short-circuit system for that; and that has meant that a great deal of the time of magistrates has been saved. But the pressure on magistrates is now again great. As I understand it—and I have 684 had a fair number of communications from those who know much more about how it is working than I do—the system which we then devised for relieving magistrates is not operating as it was intended, and that system is in itself one of the major reasons why there are so many cases awaiting trial. The noble and learned Lord the Lord Chancellor spoke about the numbers of persons opting for trial.
§ The LORD CHANCELLOR
Would the noble and learned Viscount forgive me for interrupting him? I am told that by a slip of the tongue I gave the figure of 22,000. It should have been 2,200. I am so sorry.
§ Viscount DILHORNE
I was going to come to that in a moment. It was a slightly major slip; but I was dealing with the figures of persons who are committed for trial under the new procedure. I am told (and I think it ought to be looked into) that what is happening in many cases is that the statements on which the police are going to ask for committal for trial are produced, and the defence do not question them at all—they just agree to it being done on those statements—whereas in the old days, when there was an examination before the magistrates, a great many of those cases would not have been committed at all. Indeed, I have been told of a case by someone who knows about it—and I know this is true—of a man who was committed for trial for murder. On the case coming up for trial there was not a shred of evidence in support of that charge. When the person concerned with securing the committal was asked why he had obtained the committal of that accused person, the answer was, "The defence did not object ".
That is all very wrong. I do not want to cast aspersions, but I am told that one of the real causes of the present congestion in London and in the South-East, where it is particularly heavy, is this committal for trial of cases which would not have been committed under the old examination procedure. Of course, these are not cases where there is an opting for trial; that is the distinction. But this part of this Bill assumes, so far as I can see, that the congestion is due to people electing to go for trial when they ought to be tried in the magistrates' court. I doubt 685 whether the problem is solely due to election. That is the first point I want to make.
Secondly, I do not think there is anyone who objects to a great number of the cases in which you can now go for trial being dealt with summarily. There has been no objection to the provisions of Clauses 15 and 16, although in due course we shall be looking at the Schedules attached thereto with regard to particular offences. I do not know to what extent the burden will be relieved by the operation of Clauses 15 and 16, but I would think that it will probably be considerable. But when we come on to Clause 23, which we are now discussing, I am not at all happy about that. I am delighted to find that the figure of 22,000 for those who are likely to opt for trial for thefts under £20 has come down to 2,200, but how does one reconcile that with the Written Answer given by the noble Lord, Lord Harris, yesterday:As separate figures are not available for thefts of £20 or less or for criminal damage of £100 or less, some other available information about offences under the two relevant Acts has been included"?—[Official Report, 26/1/77; col. 615.]I am just wondering—2,200? I wonder where those statistics come from? I am not challenging them, but I would be glad to know whether perhaps another look at them might not bring them down to 220, or 22. I am sorry; the noble and learned Lord the Lord Chancellor need not be annoyed with me about that. It will not be the first or the last time. But, really, it is a little astonishing. I looked at these figures this morning, because one is very concerned about this. I would have thought, really, that, despite what the James Committee has said, it is a very serious matter to take away this right to elect trial for offences—minor offences, it is true—involving dishonesty.
The noble and learned Lord the Lord Chancellor said that he was glad that there had been no denigration of magistrates. I, and I think every holder of the Office which he now holds, always had a very great regard for the magistrates. They do their job extremely well. But there is one point that I want to make, and I want to make it without reflecting on magistrates. I put it in this way. If you have a judge who has to decide fact, as a magistrate must decide fact, and you go on hearing 686 the same type of case day after day; charges of shoplifting from the same shop; evidence given by a store detective whose evidence you have accepted on a number of occasions; the same defences put forward time and time again by persons whom you have found guilty, and rightly found guilty, then in one case out of a hundred or, perhaps, in one case out of a thousand, it may be that one of those persons who puts forward that defence is telling the truth and is absolutely innocent.
I do not think that it is denigrating the magistrate who is doing his best to say that, human nature being what it is and as he has heard it so often before, that particular magistrate might not so readily accept the evidence for the defence as would members of a jury who have not heard the store detective and who have not heard that defence put forward before.
The statistics which we have had and which have been quoted by the noble and learned Lord the Lord Chancellor do not seem to me to establish that proposition. I must say that in the days long ago, and long before the noble and learned Lord, Lord Hailsham, gave up practice, when I used to appear in a magistrates' court, I would never have consented to trial before a court which was dealing with a series of petty thefts if I could go for trial and if I thought that my client was innocent. That is not denigrating magistrates; it is not being critical of the system; but it is, I suggest, an argument for retaining the present system.
The contrast is drawn in the James Report between offences that society regards as serious and offences which are serious to the individual. Is that really, in this connection, a valid distinction? Why is the petty offence of theft committed by a young man, or by an older one, in any walk of life so serious? In a young man it may prevent him from taking up a particular profession or occupation, from becoming a postman or a railwayman or something of that sort. In an older man it may mean his ruin. But why does it do that? Surely it is because society regards that offence of dishonesty as a serious offence, irrespective of the amount of money that has been taken.
I am sorry to have annoyed the noble and learned Lord the Lord Chancellor by what I have said on this occasion. Before 687 voting on this I should certainly like to consider more carefully what he has said and perhaps have an opportunity of discussing it with him; but at the moment, for the reasons I have indicated, I am by no means convinced that the Bill would not be improved if this Amendment were carried.
§ 6.15 p.m.
§ Lord HAILSHAM of SAINT MARY-LEBONE
I do not want to intervene for very long, and I hope that some noble and learned Lords and others will not be offended if I introduce perhaps a note of gentle fun at some of the things that have been said. I want to start by offering the Government a word of avuncular advice, if they will not take it amiss. I think that this Amendment is bound to win. I think that if it does not win today, it will win later; if it does not win in this House, it will win in the Commons. I have made considerable inquiries as to what opinion is in this House and in the Commons, and I think that the Government will simply be kicking against the pricks if they resist this Amendment and that if they go on resisting it to the point of a Division they will probably find that they will lose more of the Bill and not less of it by so doing.
This is not meant in any sense as a criticism of their attitude hitherto. I was, as the noble and learned Lord, Lord Elwyn-Jones, pointed out, one of the two Ministers who set up the James Committee. I did so, contrary to what the New Statesman said, simply because I already thought that the existing rules governing the distribution of criminal business between the Crown Court and the magistrates' court are complicated, confusing and anomolous. It struck me that out of the six various categories of different ways of trying cases, you might reduce the categories to three—and that, in fact, is what the James Committee reported. May I say also that I made no attempt—again contrary to what was said in the New Statesman—to stack the Committee. I think that the only member with whose appointment I had personally much to do was the late Lord Justice James whom I recommended as the best man available—and so, I think, he was.
688 I realised, of course—and I think it is true whatever happens to this particular Amendment—that if the law was simplified and rendered more coherent—which has been my consistent endeavour ever since I had anything to do with law reform, which was since I was Lord Chancellor—I repeat that if it was made more consistent, logical and coherent, there would be in this case a spin off. It would be only a spin off; but there would be an important and significant spin off in saving the time of people waiting for trial, saving the trouble to jurors of having to try cases the result of which were a foregone conclusion (as many of the cases that they try are a foregone conclusion) and—and this is the least of my preoccupations in connection with the administration of justice; but is one of them—saving as much expense as possible; and, furthermore, reducing the delay of other prisoners in other cases who may be awaiting more serious charges against them and who are being held up by a lot of unnecessary cases.
I do not agree with the first point made by my noble and learned friend on the Cross-Benches, Lord Dilhorne. It is true, and it is admitted to be true—the Judiciary know it, we all know it—that one of the results of the Section 1 procedure in 1967 is that a number of cases get by the magistrates which ought not to be committed. That is undeniably right. The noble and learned Viscount said it; and it is true. On the other hand, they die the death or ought to do so at the stage of arraignment or shortly afterwards in the Crown Court. Therefore, I do not accept—although I have heard the contrary asserted at other times than today—that they are a very significant part of the congestion in the Crown Courts at the present time because, in the presence of competent counsel on both sides and a competent judge (which is usually available) they ought not to last very long when they reach the Crown Court, which they ought never to have done.
Having said that, I want to say something about trial by jury. I hope that the Committee will not run away with the idea that I am against trial by jury or the adversary system which is closely related to it, one of which probably would not survive long without the other. I am, on the contrary, a passionate adherent of trial by jury in the proper cases and a 689 passionate adherent of the adversary rather than the inquisitorial procedure. But we must not allow this great bonce every time that trial by jury is mentioned and to which I referred at an earlier stage.
There are two very serious disadvantages in trial by jury, quite apart from the time, expense, trouble, delay and the burden on the jury. Every single miscarriage of justice that I can think of at the moment, outside the courts-martial have all been jury verdicts: Docherty, Virag, Adolf Beck and Oscar Slater. I do not believe it has been completely coincident that this is so. You cannot get rid of a wrong conviction once the jury has convicted unless the judge has made a nonsense, except in the rarest cases like that of Smith which Lord Hewitt allowed, which I think was the only case of a verdict before a jury before the war which was set aside by the Court of Criminal Appeal. There may have been one or two others; but, broadly speaking, what I am saying represents the case.
People underestimate the danger of what is called in American parlance a hung-jury, a disagreement, and the difficulty of getting round a conviction which has been wrong. This must be remembered when we handle this kind of case because it is the kind of case where trial by jury is probably less valuable than in most others. First, let us look at one or two of the cases about which I am talking. Let us look at Docherty for instance. Docherty went wrong at every stage until eventually justice—very largely instigated by the noble and learned Lord, Lord Gardiner—managed to establish his innocence. They did it by pointing out that there were at least 53 potential witnesses of an alibi which had been overlooked both by the prosecution and the defence. Docherty proved his innocence, which is a very difficult thing to do especially if you have been found guilty.
If that case had been tried by magistrates in the first instance, the man would have been convicted, as he was by the jury. Everything went wrong. It would have gone wrong before a magistrates' court just as it went wrong before the Crown Court. But what would have happened? He would have had a complete re-trial with all the witnesses and all the cross-examination. The new evidence would have been brought because his defending counsel would not have failed to realise that he 690 must get the other occupants of the bus to give evidence as to his alibi; and he would have won. None of this ghastly business would have happened in that case.
The case of Hector Hughes will be remembered. It was, I think, Hector Hughes; it does not matter if it was another "absent minded scholar", as the noble and learned Lord on the Cross-Benches referred to it. He went to a bookstall and abstracted a book. Maybe I am talking about the wrong case, but for the purposes of illustration it does not matter. My recollection is that he was convicted by the magistrates. He would very likely have been convicted by a jury. But, having been convicted by the magistrates, he had a completely clean, new trial, with new witnesses, new cross-examination, a re-trial before the Crown Court, and he got off. He would never have got off if he had been convicted by a jury.
Let us look at the danger of a divided jury. We had all this business by Mr. Peter Webster in The Times over the majority verdict controversy 10 years ago or so when we talked about majority verdicts. I with Mr. Roy Jenkins supported this proposal and carried it through with him.
Forgive me for interrupting. The facts in regard to the Hector Hughes case are not correct. He actually went for trial.
§ Lord HAILSHAM of SAINT MARY-LEBONE
Then I was talking about a different case. I am glad to be corrected. At any rate, he was acquitted. But I am sure I am thinking of a genuine case.
Let us deal with the question of a divided jury. In the House of Commons at that time, the two leading lawyers on the Conservative side promised to support that. They both reneged under pressure from the Conservative Bar. There were arguments about having to persuade 10 people, instead of 12 and the burden of proof being degraded. They did not face the fact that you can get a majority verdict of acquittal as well as of conviction. What would have happened to Mr. Peter Hain if we had not carried out that reform? He would have had to stand his trial again. There would have been no way out. A bench of magistrates, I assert—and of course there is no way of proving it—must have acquitted him. There was 691 a case, but it was not good enough. When the explanation was given, a bench of magistrates must have acquitted him.
Supposing only nine of the jury had been for an acquittal and three for a conviction. The result would have been that he would have to stand his trial again with infinite trouble to himself, agony of mind and great injustice in practical terms. I am not prepared to go with this tremendous bonce in favour of the trial by jury being the most marvellous thing in the world. I must say to the noble Lord, Lord Bruce of Donington, that although I am a passionate defender of it, one has to remember that it is not the only support of civilisation. Every other country which is not a common law country manages to get along very well in a civilised fashion in a totally different system. I happen to prefer our own system.
It is time that we started looking at these matters a little more coldly and objectively than either the legal profession or, with the greatest respect, the noble and learned Lords on the Cross-Benches. Take, for instance, the noble and learned Lord, Lord Edmund-Davies, who made an excellent speech on Second Reading. One would have thought that he would have learned by the horrible savaging that his own report had when it came up before this House at the hands of the very people he is now supporting. It was treated in the most abominable way by the profession and by half the Judiciary—at any rate by those who were allowed to express an opinion. It was a good document.
It is time that we grew up about juries. I quoted the remark about bonce which was written more than 100 years ago, when it was said:…every Englishman's heart will begin bounding like a tremendous bonce at its bare mention.That was referring to trial by jury.
But since those words were written the sheriffs' jury has died; most coroners' juries have died; nearly all civil juries have died—petty and special; grand juries have died, county court juries are all dead; juries of matrons are, happily, no longer required and juries in the great majority of criminal cases which, since 1844, have been tried by juries, are now dealt with by magistrates. Do let us be sensible about all this. The next time we talk about criminal law reform let there be less emotion and less eloquence.
§ 6.28 p.m.
§ Lord WIGODER
When the noble and learned Lord the Lord Chancellor answered the argument put forward in favour of this Amendment, he began by suggesting that what your Lordships were considering was whether we are justified in giving the right of trial by jury to a particular class of people who had committed an offence of the value of less than £20. With respect, that was no doubt an inadvertent slip of the tongue. We are concerned with whether we are justified in depriving a class of people of the right of trial by jury because they are a class of people who have the right to trial by jury at this particular moment.
We are, therefore, not concerned with whether we shall be unduly increasing the existing burden on the Crown Courts or the magistrates' courts; we are concerned with whether we should alter the existing burden in a wholly new way, as is suggested by the Government in the Bill. If I may say so with the greatest respect to the noble and learned Lord, Lord Hailsham of Saint Marylebone, a similar observation applies to what he was just dealing with so very powerfully.
We are not concerned today with whether we should establish a system of trial by jury in this country. We have a system of trial by jury and, if I may say so, I doubt whether it helps, as regards this Amendment, to consider the merits of the system in general terms or to draw attention to the more notorious miscarriages of justice which have inevitably taken place at the hands of juries—because the more notorious cases are tried by juries and not by magistrates. If we are to consider whether we should now take the very, very grave step of depriving people of their existing rights the case must clearly be proved, and proved up to the hilt, by those who seek to do so.
It was put by the noble and learned Lord the Lord Chancellor primarily—I hope I have it right—on the ground of the existing burden on the courts. Might I venture to suggest that the problem, if one looks at it carefully, is nothing like as serious as has been represented this afternoon. The leaders of all the circuits, except the South-Eastern circuit, have recently reported, as the noble and learned Lord knows, that the situation in the Crown Court in their areas appears to be 693 under control. The noble and learned Lord has given this afternoon the astonishing figure that the average delay between committal for trial and trial, outside the South-Eastern region, is just over seven weeks. That is an astonishing figure, and it is the greatest possible tribute to all the work that has been done by the present Lord Chancellor and his distinguished predecessor.
May we consider for a moment what that figure means. After committal for trial, the depositions have to be typed, copied and distributed, the exhibits have to be photographed and distributed, the papers have to be sent to prosecution counsel for the first time to draft the indictment. He then has to read through all the papers and decide whether notice of further evidence has to be served. If so, that has to be prepared and served on the defence. Then, and only then, when the charges are known and all the evidence is known, can the defence begin to prepare their case. Then the defendant sees counsel in conference. Then the question of possible witnesses is discussed; a proof is taken from the defendant and proofs are taken from the various witnesses. Then a date has to be fixed for the trial, and very often it has to be postponed because some essential witness is ill or abroad on holiday, or some policeman is on annual leave, and so on. In those circumstances, the noble and learned Lord is able to report to us today that the average delay outside the London area is only just over seven weeks. I doubt whether there is another country in Western Europe which could possibly rival that record, and I do not see how it can possibly be said that it represents inordinate delay. On the contrary, it is a figure of which we have every right to be proud.
I know the situation in the London region is different: of course it is. It is different not only in the London Crown Court but in the London magistrates' courts. The noble and learned Lord will remember the small exercise I tried to do which I mentioned on Second Reading: when I discovered that at three London Crown Courts in December, when my clerk asked for a date for a short contested case, he was given as the first available date by each of those three courts a date somewhere between two 694 and four months hence. There are delays in the London courts, as I have said, but I do not believe that the proposals that are made in this Bill, as it stands, outside the South-Eastern region, will in any way assist the Crown Courts but will add very materially to the burden upon the magistrates' courts—so far as one can see, to no useful purpose.
Having said that, may I add that I entirely agree with what has been said by the noble and learned Viscount and the noble and learned Lord, Lord Hailsham, that there are many aspects of our criminal procedure which ought to be looked at. There are many ways in which I believe time can be saved, delays eliminated and expense cut down; but they are not perhaps directly material to the Amendment now before your Lordships. There are, of course, many other Amendments which have been tabled with that very object, and we shall reach them during the course of our debates.
I would suggest that the figures given by the noble and learned Lord are as satisfactory as any human system of justice could possibly be. It is very often said—it is an old familiar cliché—that justice delayed is justice denied. That is true. But justice rushed can also be justice denied. If one accepts that there must be a reasonable time in which the defence can be allowed to prepare their case, I would suggest that the present figures are really very near to the minimum that could conceivably be obtained.
If I may, I should like to mention one other matter. I want to ask the noble and learned Lord the Lord Chancellor whether he has considered the undignified squabbles that will take place in court if the Government's proposal is carried into effect—under £20, summary trial only; over £20, right to trial by jury. One might give the example of the theft of a second-hand etching. The prosecution witness says "£15: no jury trial". The defence witness, an expert valuer, comes along and says "£25: right to trial by jury". How are the magistrates to adjudicate on a matter of that sort? Is it to be—
§ Viscount DILHORNE
I am sorry to interrupt the noble Lord: is he right in saying that that is to be done on evidence? 695 —because if he looks at subsection (2) of Clause 19 all this procedure under Section 23 must be done before any evidence is called. Therefore it will be not evidence but a representation by the prosecutor, met by a representation by the defence, and there will be no summary trial unless it is clear to the court, despite this conflict of representations, not supported by evidence.
§ Lord WIGODER
I accept that the wording is "representation". How that is to be made, I know not. Are the magistrates to decline to accept representations by way of written statements from expert valuers? I know not. If I may be flippant for a moment, are we to reach a situation in which shoplifters will be advised to include in their shoplifting a tin of caviare in order to bring the limit over £20 and therefore give themselves the right to claim trial by jury? Are we really to tolerate a situation, for example, in which there is an office till with £100 in it and the office boy put his hand into the till and takes out £15, so that he is then charged with stealing £15 and it is a case for summary trial only? But, if he puts his hand into the till and the boss catches him by the wrist before he has got hold of any money, he is charged then with attempting to steal £100—because that is the only charge one could frame in such a case—and therefore because he failed to commit the whole offence he has a right to trial by jury? I would suggest that the anomalies are going to be vast and they will bring the courts into disrepute if this proposal is carried into force.
I would add only this. When the noble and learned Lord, Lord Hailsham, indicated that perhaps it was not right for people who had committed comparatively trivial offences, in financial terms, to be allowed to delay the trials of those who had committed serious offences, I wonder whether that is in fact quite so.
§ Lord HAILSHAM of SAINT MARY-LEBONE
If I may intervene, I do not think the noble Lord is quite correct in what he says. I was talking about trivial offences in absolute terms. The noble Lord will remember that at the very beginning of my speech I advised the Government to accept this Amendment, 696 and that was one of the factors which led me to do so.
§ Lord WIGODER
I am grateful to the noble and learned Lord. The only point that I want to make is this. Surely the employee, the retired Army officer, the shop steward, the professional man who has committed an offence, or is alleged to have committed an offence, of dishonesty in respect of property under £20 in value, has as much right to be tried by a jury as the bank robber who may have a very long criminal record. Is it right that we should distinguish between people not on the basis of who they are, but on the basis of the nature of the crime, in the rather curious way in which the James Committee set out to do?
May I repeat what has been said often in the course of these discussions, that the argument in favour of this Amendment is not in any way a criticism of magistrates. Magistrates have not been criticised—certainly not from these Benches—and will not be criticised. The argument is that it requires overwhelming grounds of expediency to destroy the contention that, if a person is charged with an offence where he might lose his job, he might lose his pension, he might lose his self-respect and he might lose the respect of his family and his friends, he is entitled to say: "If that is to happen to me, it should be done at the hands of my fellow citizens." We on these Benches support this Amendment, and we hope very much that it will be pressed to a Division this afternoon.
§ Baroness WOOTTON of ABINGER
Having been silent for an hour, perhaps I may deliver an abbreviated version of what I would have said earlier. My noble and learned friend the Lord Chancellor gave some figures of the proportion of cases of all kinds of theft which are tried by the Crown Court and which are tried by the magistrates. I think he said that 91 per cent. of cases of theft are tried by the magistrates. I am fairly sure that that figure is right, because I happen to have worked it out previously to the same answer, so I do not think there is a mistake this time.
I should like to make a further point. Of the cases that go to the Crown Court, over 80 per cent. get a custodial sentence. It is true that this includes some of those who have been tried by the magistrates 697 and sent up for sentence because of their bad records. But it also includes those who have elected for trial by the Crown Court, and of those who are found guilty by the Crown Court over 80 per cent. get a custodial sentence, by which I mean that they get borstal, a detention centre or prison. The prison sentence may be suspended, and I have included that. I do not think that means that many of them are under 20-pounders—I think it is very improbable. The only ones who are likely to be under 20-pounders are those who have been sent up from the magistrates with very bad previous records.
Therefore, it seems to me that, to a large extent, this is a storm in a teacup. It is a storm affecting a very few people who might wish to take advantage of this opportunity. I think we are getting on rather dangerous ground, when we are so anxious that people should go for trial by jury if they want to, and when we compare the rate of acquittal by juries and by magistrates, assuming, I imagine, that in both cases the verdicts are right. We are getting very close to the position of saying that they ought to go for trial by jury, because they will get off if they are guilty. There is an implication there, and it is in the minds of many of the accused that that will happen. But that is not for us to say.
The other, and more serious, point is that the noble and learned Lord, Lord Morris of Borth-y-Gest, made a great point about the stain on a man's honour when he is convicted of theft, with the possibility of his losing his job. But the stain on his honour is exactly the same, whether he is convicted by the magistrates or by the jury. He is more likely to come to the notice of his friends or neighbours if he is convicted by the magistrates, because if it is a small matter of under £20 it will be noticed in the local newspapers. If it is a small matter, and he is not a very conspicuous person it will very largely pass unnoticed in a large part of his own community, if he has trial by jury.
I think that we are getting into the habit of thinking far too much of small amounts of property, in comparison with a number of other offences involving personal injury and damage. I do not quite understand why those Members of your Lordships' House, who are so anxious 698 that people should go for trial for thefts of under £20, are not also moving that they should go for trial for criminal damage for under £20. In fact, they want the criminal damage to be a much higher figure. The criminal damage sometimes does far worse injury to the individual than the theft. The theft is bad enough. You lose the money, and you economise and make it up. With criminal damage, they smash your property and you might get certain compensation but, if you are lucky, you have the satisfaction of seeing that the person who did it is fined, or even sent to prison. But you have very great difficulty, in present circumstances, in getting it restored and in getting anybody to put things right. We are attaching enormous and exaggerated importance to the word "theft". It is proposed that some motoring offences and nearly all road traffic offences should go to the magistrates; at least, these should be either way cases. Some motoring offences are far more damaging than small thefts, but we have inherited a sense of enormous importance attaching to the word "theft" and to the fact that someone is a thief. For that reason, and, more particularly, for the reason that, apparently, a very small number of persons would elect to go for trial, I believe that this Amendment is misconceived.
Baroness WARD of NORTH TYNE-SIDE
I wish to support this Amendment. First, I should like to say that I disagree with practically everything that the noble and learned Lord the Lord Chancellor has said. I do not seem to be getting on very well with him just now, but I hope he knows me well enough to know that I never mind being criticised, whether publicly or privately, and I still retain a great admiration for him, even though I disagree entirely with all that he has said this afternoon.
I am very glad, indeed, that the noble Lord, Lord Wigoder, raised the question of the £20 and the £21, because I think that this is absolutely ridiculous. I have never heard of such a stupid arrangement in any Bill. I am not going to argue about the legal side, but it worries me that a great Department like the Home Office should have produced such a ridiculous arrangement in a Bill of this kind. Over the years that I have been moving about in public life, I have had quite a lot to do 699 with the Home Office and I sometimes think that the people who prepare Bills, et cetera, are far away from knowing what ordinary people think.
I do not want to say any more, except that I support the Amendment and I hope that we shall vote on it. As my noble and learned friend Lord Hailsham said, we are going to win, and I think it will be a very good thing for England to know that, when a big Department proposes something which is absolutely ridiculous, this House, and, I am certain, another place will vote against it. Therefore, I am looking forward to a huge majority in favour of the Amendment when we vote on it.
I find myself in a somewhat difficult position, because, first I do not want any of my magisterial friends of whom I have very many, to imagine that I am differing from the views which I have expressed very often of their important contribution to our judicial system and of their integrity and ability. But I am worried about this matter. I am worried as a practising solicitor. It is true that I do not practise often at present in the courts but for many years I did so. It is no good anyone in this House saying that we should just push aside the emotional side of this issue. We are dealing with a very deep emotional position, something which every solicitor who has a substantial court practice knows is of tremendous importance to a large number of clients with whom he has to deal. It is not just a question of the amount involved. It is in many cases a question of the character and outlook of the individual who is being charged.
There is a jury system. Whether it is good or bad is not really material to the subject that we are discussing. The jury system exists and, rightly or wrongly, I believe rightly, people believe that it is a very valuable asset. Be that as it may, the man or woman who is charged may believe that a charge involving even a few pence is as important, so far as his emotional outlook is concerned, as a very serious charge. We are dealing with the human element. My colleagues in the legal profession are very clear about this. A committee which has been set up by the Law Society especially to deal with the James proposals has expressed itself 700 in no uncertain terms. The committee consists of those who have considerable experience inside their offices, which is where people open their hearts.
If I may say so, the noble and learned Lord the Lord Chancellor is an emotional man himself. I am not saying that he is purely emotional; far be it from me to do so. I know from experience that he is a very learned and knowledgeable person who is also very sympathetic. However, I do not think he has quite grasped the fact that we should deal with the problem in the manner that I have indicated. Of course I am concerned about the expense which is likely to be involved; all of us are worried about the economic situation. However, expense is not an excuse that can possibly be put forward when a person's character is at stake. Whether the person who is charged is right or wrong in feeling the way that he does when he is charged is a matter into which we cannot delve. The fact is that there are very many people who, even once they enter a court to answer a charge, feel that their character has been besmirched. That is how they feel, even before their trial. I see that the noble and learned Lord, Lord Hailsham of Saint Marylebone, for whom I have great respect, is not entirely in agreement with me on this. But it is a fact and I speak from experience. It may be that I am a little emotional, too; but the fact is that people regard their good name as something of tremendous importance to them. Of course convictions have serious effects. Let us take, for example, one effect. If a person is found guilty of an offence and then wants to visit another country—like the United States—the fact that he stands convicted even of a trivial offence might mean that he could not obtain a visa. However, I am not dealing with that aspect. The seriousness of the consequences of conviction have been aptly expressed by the noble and learned Lord, Lord Morris of Borthy-y-Gest, in a splendid remark.
May I urge my noble and learned friend to think again about the matter. If a person goes into a solicitor's office and says that he is not guilty of an offence with which he is charged, he is advised that he has the opportunity either of presenting his case to the magistrates and being heard by them, or of asking to be tried by jury. For the average man the jury 701 system is acceptable. I am the average person. It may be that at some future time people can be argued out of this view and accept different laws, but the fact is that at present people believe in trial by jury. Incidentally, an accused person has the right to object to a juryman if he believes that he is not a desirable person to try his case. The same right does not apply in a magistrates' court. In view of my respect for the magistracy, I might say that perhaps it does not matter that people do not have that right; but the point is that people know that they have the right to object to a number of persons who may be sitting on a jury.
In those circumstances, the majority view of the people in this country is that trial by jury should be retained in respect of the offence referred to, no matter how trivial is the amount involved. I hope that my noble and learned friend will reconsider the position. I could repeat the arguments which have already been splendidly put forward by the Law Society and presented to my noble and learned friend, but I do not think that this is necessary. Apart from that, the point I am making—and I make it, I hope, respectfully and humbly—overweighs everything that can be argued in favour of rejecting the Amendment.
§ Baroness MACLEOD of BORVE
As a magistrate, I support the Amendment. Every person who comes before my court is an individual, and in the case of theft every individual should have the right to trial by jury. I believe that no individual would take any notice of the fact that our prisons are over-crowded and that there is a long list of people waiting to be tried in the Crown Courts. As I say, every individual matters. He does not mind very much whether the country is in a very difficult economic situation, the result of which means that people have to wait for a very long time to be tried. What matters to him is that he gets a fair trial, wherever he wants to have it. Therefore I support the Amendment.
§ Lord AIREDALE
Could we look at the matter very shortly from the point of view of magistrates, particularly from the point of view of magistrates in country towns. Let us suppose that a fairly prominent citizen in a market town—for example, an assistant bank manager—is 702 charged with stealing £15 out of somebody's overcoat pocket in a hotel cloak-room. Presumably a bench of magistrates can be found who are not close personal friends of this assistant bank manager. However, I should imagine that it would be difficult to find a bench of magistrates who had not had some social contacts with him at local gatherings—for example, meeting him from time to time in the country club at lunch time. If he has to be tried by that bench of magistrates because trial by jury is denied to him, it will create an embarrassing situation for all concerned. How infinitely preferable—
§ Lord HAILSHAM of SAINT MARY-LEBONE
In such circumstances the magistrate would disqualify himself and refuse to try the case, anyhow. I should not like it to be said that a man was entitled to pass judgment on those whom he knows socially.
§ Lord AIREDALE
I am not talking about people who are close personal friends, but in a small community I should have thought it would be difficult to find a bench of magistrates who do not have some personal knowledge of a reasonably prominent citizen locally of the kind that I am mentioning. How infinitely preferable that he should be allowed, if he wishes, to be tried by 12 jurymen, most of whom presumably are socially total nonentities so far as he is concerned.
§ The LORD CHANCELLOR
We have had a full discussion on this Amendment and in my view it has been a valuable debate. One aspect of it that has pleased me greatly has been the general—indeed universal—confidence that has been expressed in the magistrates' courts. To have made that clear has been a valuable service rendered by the debate.
I hope at any rate that the honourable and serious purposes of the James Committee and the Government in bringing forward the proposals in Clause 23 (1)(a) are at least accepted and that they arise from serious concern about the dangerous pressure of crime upon our community and of casework on the courts; a grave situation which a decision on this Amendment—on which I will indicate my view in a moment—will certainly not better. I have heard the views expressed in most of 703 the speeches that have been made here. I have heard similar reports of what are likely to be the views in another place, and as I indicated earlier it is of vital importance that where there are important and significant changes in the criminal law those changes should carry public support and that the confidence of the public in the courts should be maintained.
In all the circumstances, I have come to the conclusion that the better course for the Committee now, in the light of what has been said here and what has been expressed elsewhere, would be for the Committee to accept the Amendment, even though I must repeat that it means that what could have amounted to a substantial relief in the amount of pressure of work on the Crown Courts will now not be available. However, I must not be ungenerous in this matter. Bearing in mind my responsibility for maintaining confidence in the courts, I take the view that the better course now is to accept the Amendment.
§ On Question, Amendment agreed to.
§ 7.2 p.m.
Lord WIGODER moved Amendment No. 41:
Page 15, line 42, leave out ("£100") and insert ("£200").
§ The noble Lord said: Perhaps I should begin by expressing, as I am sure I ought to do, the appreciation of the whole of your Lordships' Committee for the generous attitude taken by the noble and learned Lord the Lord Chancellor, after the last debate. Amendment No. 41 is a comparatively small one, but it is one of several designed to attempt to lessen the burden upon the Crown Court in a way that might perhaps not be found to be in any way objectionable. The present proposal is that offences of criminal damage should be triable summarily only if the damage is £100 or less. Offences of criminal damage are in a quite different category from those of dishonesty, so the same social stigma or consequence is not likely to be involved.
§ I suppose the typical criminal damage case is that of the drunk who succeeds in putting his foot through a plate glass window. Costs being what they are today, amounts in excess of £100 are easily and 704 quickly reached. It has been suggested to me that no harm could possibly be done, therefore, if the limit were raised to £200. It might enable rather more of these really somewhat trivial offences to be dealt with purely summarily and might assist in a small way in relieving the burdens on the Crown Courts. I beg to move.
§ Viscount DILHORNE
Before saying a few words on this Amendment, I should like to express my personal thanks to the noble and learned Lord the Lord Chancellor—and I am sure my noble and learned friend Lord Morris of Borth-y-Gest would wish to join with me at a suitable opportunity when he is finished being instructed by the noble and learned Lord, Lord Hailsham of Saint Marylebone. I fear they have not heard a word that I have said! I thank the noble and learned Lord the Lord Chancellor for pursuing the course he has with, if I may say so, great wisdom, because public opinion about this was extremely strong. Whether it was well-formed or ill-formed I do not know, but I do know that a great many of us felt grave concern about it.
With regard to Amendment No. 41, I personally share the view of the noble Lord, Lord Wigoder, in thinking that £100 is a little low. However, while saying that, I should like to make two points. The first is that referred to by the noble Lord, Lord Wigoder, about how it becomes clear to the magistrates that the value is or is not above a prescribed figure. I think it is unusual to find in a Statute dealing with decisions of magistrates the words, "It appears clear". It is usually, "If the magistrates are satisfied", or something of that sort. I ask the noble and learned Lord the Lord Chancellor to consider this: all that the magistrates can hear at this stage are representations by the prosecutor or the defence. Magistrates' jobs are difficult and they are skilful, but without hearing any evidence how it can appear clear that the value is or is not below a prescribed figure when one side says that it is below and the other side says that it is above, I do not know. Unless that point can be satisfactorily cleared up, Clause 23 will not operate as the Government intend. I am not asking for an answer now, but I think that difficulty would be overcome by a change in the language.
705 The second point I should like to ask the Lord Chancellor to consider is this. I have been looking at the Bill and I am not sure what the answer is. Supposing a man commits two offences on the same occasion; one of them is doing damage below this figure and another is one for which he will be sent for trial. Both offences are committed in the course of the same transaction. I think there ought to be a provision that in those circumstances where they arise out of the same affair the damage charged should be triable on indictment at the same time as the indictable offence, to avoid two trials. So far as I can see, it is the only way that it could be done, because it will not be possible to make the indictable offence triable summarily. I think there must be some provision whereby the courts can ensure that there are not two bites at the one cherry.
On the Question, Whether the clause shall stand part of the Bill? if the Amendment had not been accepted, I was going to put to the noble and learned Lord the instance of burglary, trespass and stealing. There, if a man was found not to have trespassed but to have stolen under £20, it was to become triable summarily. If there are any similar offences under the damage side, where it is part of the offence charged, a verdict could be brought in for damage. I hope I have made the point clear that there should be power to deal with that without having to send it back to the magistrates' court. I do not think there is anything here except technicalities.
§ Baroness WOOTTON of ABINGER
I am absolutely staggered by what appears to me as the inconsistency of those who are supporting these two consecutive Amendments. First of all they are desperately anxious to reserve the right to jury trial for persons who steal small sums of money. Secondly, they are happy to further restrict the right to jury trial, beyond what the Bill proposes, to those who commit criminal damage, all because of the stigma that they say attaches to theft. The injury to the individual is often much greater in the case of criminal damage than it is in the case of theft, for all sorts of reasons. Typical cases of criminal damage are plate glass windows in shops. Many cases of criminal damage are damage to personal property, sometimes of defenceless and aged people. If 706 there is a case for one of these offences, the theft, being regarded as relatively trivial, there is equally a case for the other. If there is a case for one not being so regarded, then there is a case for the other. I regard this as extraordinary and inexplicable inconsistency.
§ Lord AVEBURY
The noble Baroness speaks about defenceless and aged people being attacked. Surely she is confusing two things. We are talking about damage to property.
§ Baroness WOOTTON of ABINGER
I was talking about damage to property. There are people whose flat windows are endlessly broken and whose property is damaged. I was not talking about injury.
§ Lord AVEBURY
The noble Baroness was implying that associated in the offences we are discussing under this Amendment would be attacks on persons and not just attacks on property. Of course, the two things are in a totally different category. No one is suggesting that cases such as the noble Baroness is mentioning should be dealt with in this way.
§ Baroness WOOTTON of ABINGER
I am not mentioning those cases. I am mentioning cases of damage to personal property.
§ Lord AVEBURY
I realise that; but I was pointing out that the language the noble Baroness used in describing attacks on these defenceless persons was wholly inappropriate. We are talking about attacks on property. I know what she means, but I am merely pointing out that the language she was applying to the Amendment was emotive and inappropriate. There is all the distinction in the world to be made between the kind of attack to which my noble friend is referring and those which involve the defenceless.
§ Baroness WOOTTON of ABINGER
The noble Lord is totally misrepresenting me. I am referring to elderly persons who live in ground floor flats and whose windows are constantly broker. They do not suffer personal injury; they suffer criminal damage. I am not talking about assaults on persons. It may also be true 707 that they are afraid to go out because they are afraid of being assaulted, but I am not talking about that. Would the noble Lord please accept that?—otherwise he is grossly misrepresenting what I say.
§ Lord AVEBURY
I am not misrepresenting the noble Baroness. I am merely describing the language she uses as inappropriate. I think we had better leave it at that because we are not getting very far in this discussion. What I did want to say, further to my noble friend's remarks on this Amendment, was that if inflation proceeds as it is at the moment, at the rate of 15 per cent. per annum, the value of property worth £200 at today's prices would reduce to £100 in less than five years' time. I do think that in considering what is the appropriate amount to be put into this Bill—my noble friend says index it, and that would be one solution—we have to consider that it is very unlikely that amending legislation will be introduced within five years. Therefore, the £200 suggested by my noble friend would be much more appropriate, lasting over a period of time, at least as long as the five years which would halve the value of the money. Probably we would not be concerned with amendments of a law of this kind within 10 years, by which time the value will, of course, be down to £50. So I think the amount suggested by my noble friend is more appropriate.
§ The LORD CHANCELLOR
Your Lordships will not be surprised, in view of the observations I made on the last Amendment, that my inclinations are to accept the present one. I think a good case can be made for increasing the £100 figure. The James Committee were themselves uncertain what the appropriate figure should be, though they thought £400 would be too high, because an offence involving damage of that amount might sometimes merit a sentence of more than the three months' imprisonment. I am sure we all sympathise with the indignation that has been expressed by my noble friend about the vandalism, the senselessness of injury and damage to people in their homes, the destruction that takes place. The James Committee recommended also that the figure that they suggested of £100 should be subject to review in the light of inflation. We are very nearly 18 months on since that time, 708 and as this Amendment will also assist, to a small extent at any rate, in reducing the burden of work on the Crown Court, I am happy to support the Amendment.
§ On Question, Amendment agreed to.
§ 7.17 p.m.
§ The Earl of MANSFIELD moved Amendment No. 42A:
§ Page 16, line 39, leave out subsection (8).
§ The noble Earl said: The scope of this Amendment has been somewhat restricted by the fact that the Government have accepted Amendments Nos. 40 and 41. Really what this Amendment seeks to do is to correct, if that is the right description, the slightly unsatisfactory position which obtains under subsection (8) of Clause 23. The position has also been affected to a considerable extent by the fact that the cut-off damage figure has been raised by Amendment No. 41 from £100 to £200. I must say, looking back on that, one wonders whether the Government wish to continue with Clause 23 at all, because we are now going to have one offence where this slightly curious procedure is going to be invoked; that is to say, criminal damage. I have not got the figures—I do not know whether the noble and learned Lord has—but one wonders how many cases there are of people who are charged with criminal damage wanting to go for trial, as opposed to cases of criminal damage which are tacked on to other offences.
§ It may be that the Government will reflect upon this and decide at a later stage of this Bill that Clause 23 might very well be dropped. But on the assumption that it is not—and certainly it will not be at this stage—I must explain the point of this Amendment, although, as I have said, it has considerably less force without the rather more emotional connotations of shoplifting and petty theft.
§ As the noble and learned Viscount, Lord Dilhorne, pointed out, the procedure for these summary trials is perhaps, at the moment at any rate, less than satisfactory, partly by virtue of Clause 19(2). We do not have there what could be described as a trial within a trial so much as some sort of statement, presumably by the prosecution, that the damage which will be the subject of the charge is less than £200. I daresay in the vast majority of cases it will be less than £200, even if it is 709 a plate glass window in a public house or something like that. Probably we are going to be left with cases of what I might call very serious vandalism, perhaps where a motor car is set on fire. At any rate, before the trial takes place somebody is going to have to make a value judgment and say, for instance, that the motor car set on fire by the vandal had a second-hand value of either more or less than £200.
§ All that will be fine if the defendant is represented at this stage of the proceedings. If he is not, and one has what I might describe as a slightly "dozy" magistrates' court—I know we have all been very fulsome in our praise of magistrates' courts, and nobody more than I, but there are courts that are overworked and there are clerks who are perhaps over-tired—it is not difficult to anticipate that there might be circumstances when the whole of this part of the trial under Clause 19(2) is (shall we say?) glossed over fairly quickly and the defendant finds himself facing a summary trial. He is then convicted. Afterwards he establishes that in fact the damage with which he is charged was far in excess of £200 and if he had but known or had been able to argue the point he would have had the right of trial by jury. Then what does he do?
§ Subsection (8) is pointless to this extent because I know of no case where a determined defendant cannot appeal to a Crown Court from a trial in a magistrates' court where he has pleaded not guilty. When his solicitor comes to draft his notice of appeal the defendant instructs him to say that the magistrates were mistaken or, if he is feeling rude, that the magistrates were wrong and he is not guilty. That is the notice of appeal. It will not be for the Crown Court when he has, in effect, a retrial to say: "Look here, do you mean that the amount of damage is not what the court thought it was? Do you mean that you did not do it, or do you have some other defence?" Subsection (8) will not prevent a defendant from having a retrial on the merits. That of course is not the point.
§ The point is that if a court has been mistaken and a person has been, as it were, subjected to a summary trial and convicted, it will certainly rankle thereafter that this summary trial, where he was given no option to go for a trial by 710 jury, was due to a mistake which a court made at a slightly unsatisfactory preliminary stage. This is not a creature of my tortured imagination. It is a point which occurred to the Magistrates' Association. I put it forward although I realise that because of events this afternoon it has considerably less scope than it did. However, perhaps I might have the Government's reaction upon it. I beg to move.
§ 7.22 p.m.
§ The LORD CHANCELLOR
The object of subsection (8) is obviously to avoid a proliferation of appeals on grounds of value. I have taken careful note of the points made by the noble Lord and by the noble and learned Viscount, Lord Dilhorne, with regard to these provisions. Of course, value is not uncommonly used in other jurisdictions—for instance, Australia, New Zealand and the United States—to distinguish thefts of different degrees of gravity; and the noble Lord will remember that we have used it here in the past, for example, in the Larceny Act 1916, without it apparently causing a great deal of difficulty. Subsection (4) of Clause 23, says:If…it appears to the court for any reason not clear whether, for the offence charged, the value involved does or does not exceed the relevant sum…and then the hybrid procedure follows. The language is fairly loose. We shall certainly look at the words "clear" and "not clear". It may well be that it is worth looking again at the whole clause, as the noble Lord suggested, in view of the fact that the matter it was most importantly relevant to is no longer part of the Bill. I certainly undertake to look at these problems again. With that assurance I hope that the noble Earl will not press the matter at this stage.
§ The Earl of MANSFIELD
I am grateful to the noble and learned Lord for his answer on this matter. On that basis, I beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 23, as amended, shall stand part of the Bill?
§ Lord MORRIS of BORTH-Y-GEST
May I take this opportunity to express my sincere thanks to the noble and learned Lord the Lord Chancellor for the 711 course that he followed as regards Amendment No. 41 and for the way in which he expressed himself. I listened most attentively to all that the noble and learned Lord the Lord Chancellor said in his speech. He gave us a great deal of information and figures that we did not have before. I confess that as I listened there was a sense of regret within me, if, as a result of the course that I was advocating, even to some small extent there might be an addition to the anxieties of those who have the great responsibility of looking after criminal administration.
However, I assure the noble and learned Lord the Lord Chancellor that many of us thought that a principle of real importance was involved here. I thought that the noble and learned Lord the Lord Chancellor, if I may most respectfully say so, was extremely generous in the way in which he recognised that and in the way in which he expressed himself. I whole-heartedly concur in what he said with regard to our general attitude to the James Report. I thank him most sincerely.
§ Clause 23, as amended, agreed to.
§ Clause 24 [Power of court, with consent of legally represented accused, to proceed in his absence]:
Lord DONALDSON of KINGS-BRIDGE moved Amendment No. 43:
Page 17, line 27, leave out ("apply") and insert ("are applicable").
§ The noble Lord said: We discussed this Amendment with No. 38. I beg to move.
§ On Question, Amendment agreed to.
§ Lord DONALDSON of KINGS-BRIDGE moved Amendment No. 44:
Page 17, line 42, leave out ("and") and insert ("then—(a) if")
§ The noble Lord said: With the leave of the Committee I shall speak to Amendments Nos. 45 and 46 as well. Once again this is a question of procedure. The effect of Clause 24(1) and (2) is that where an accused is represented by counsel or solicitor who, in the absence of the accused, signifies his client's consent to the mode of trial proceedings being conducted in his absence, the court may proceed in his absence if satisfied that 712 there is good reason for so doing. The object of this provision is to avoid unnecessary court attendances. If the court takes the view that the offence is more suitable for summary trial, it will need to obtain the consent of the accused, through his legal adviser, before it can decide in favour of summary trial. Subsection (4) of Clause 24 as at present drafted, provides that if consent is signified by his legal representative, the provisions of Clause 21 are not to apply and the court is to proceed to summary trial. If the court then decides that it needs to adjourn to secure the attendance of the accused—though it may proceed to try him in his absence, if the court is properly composed for summary trial—it will adjourn under Section 14(1) of the Magistrates' Courts Act 1952.
§ Where, however, the accused's legal representative does not give his client's consent to summary trial, the court will have to inquire into the information as examining justices, with a view to committal to the Crown Court. Since the accused must always be present personally at committal proceedings (Section 4(3) of the Magistrates' Courts Act 1952) and cannot be remanded in his absence, it will then be necessary for the court to have power to adjourn without remanding the accused and to issue a summons to bring the accused before the court. The two Amendments to Clause 24(4) have the effect of giving the court such a power to adjourn without remanding in these circumstances; and the Amendment to Clause 26(1)(b) (by adding a reference to the new paragraph (b) of Clause 24(4) inserted by the second Amendment) ensures that the power to issue a summons is available to the court in these circumstances.
§ On Question, Amendment agreed to.
§ Lord DONALDSON of KINGS-BRIDGE moved Amendment No. 45:
Page 18, line 2, at end insert ("or
(b) if that consent has not been and is not so signified, section 21 above shall not apply and the court shall proceed to inquire into the information as examining justices and may adjourn the hearing without remanding the accused.").
§ On Question, Amendment agreed to.
§ Clause 24, as amended, agreed to.
§ Clause 25 agreed to.713
§ Clause 26 [Power to issue summons to accused in certain circumstances]:
Lord DONALDSON of KINGS-BRIDGE moved Amendment No. 46:
Page 19, line 29, after first ("subsection") insert ("(4)(b) or").
§ On Question, Amendment agreed to.
§ Clause 26, as amended, agreed to.
§ Clause 27 agreed to.
§ Clause 28 [Penalties on summary conviction for offences triable either way]:
§ 7.31 p.m.
Lord HARRIS of GREENWICH moved Amendment No. 47:
Page 20, line 17, leave out ("£1,000") and insert ("the prescribed sum").
§ The noble Lord said: I beg to move Amendment No. 47, and if I may at the same time I shall speak to Amendments Nos. 48. 49, 50, 51, 52, 53, and 54. The Committee will be gratified to discover that we are not here altering the substance of the clause. When read with the Amendments which I shall be proposing for Clause 43, the purpose is two-fold. First, they ensure that differentials in maximum fines available on summary conviction for offences triable either way can be maintained in the course of making orders under Clause 43 to keep pace with inflation; I will deal with that point in rather more detail when we come to Clause 43. Secondly, they provide that the maximum fines on summary conviction which it imposes, together with any increases under the inflation-proofing powers in Clause 43, apply to existing and not future enactments. I beg to move.
§ On Question, Amendment agreed to.
Lord HARRIS of GREENWICH moved Amendment No. 48:
Page 20, line 33, leave out from ("Act") to end of line 34 and insert (", being an offence under a relevant enactment,").
§ On Question, Amendment agreed to.
Lord HARRIS of GREENWICH moved Amendment No. 49:
Page 20, line 36, leave out ("£1,000") and insert ("the prescribed sum").
§ On Question, Amendment agreed to.714
§ Lord HARRIS of GREENWICH moved Amendment No. 49A:
Page 20, leave out lines 40 to 44.
§ On Question, Amendment agreed to.
Lord HARRIS of GREENWICH moved Amendment No. 50:
Page 21, line 1, after ("any") insert ("relevant").
§ On Question, Amendment agreed to.
Lord HARRIS of GREENWICH moved Amendment No. 51:
Page 21, line 14, leave out from ("worded") to end of line 15.
§ On Question, Amendment agreed to.
§ Lord HARRIS of GREENWICH moved Amendments Nos. 52 to 54 en bloc:
§ Page 21, line 27, after ("any") insert ("relevant").
§ Page 21, line 34, leave out ("£1,000") and insert ("the prescribed sum").
§ Page 21, line 42, at end insert—
("6A) In this section—
the prescribed sum" means £1,000 or such sum ns is for the time being substituted in this definition by an order in force under section 43(1) below;
relevant enactment" means an enactment contained in this Act or in any Act passed before, or in the same Session as, this Act.").
§ The noble Lord said: Perhaps it would speed up our deliberations if, with the leave of the Committee, I move Amendments Nos. 52, 53 and 54 en bloc.
§ On Question, Amendments agreed to.
§ Clause 28, as amended, agreed to.
§ Clauses 29 to 31 agreed to.
§ Clause 32 [Other provisions as to maximum fines]:
§ Lord DONALDSON of KINGS-BRIDGE moved Amendment No. 54A:
§ Page 24, line 28, leave out from ("words") to end of line 30 and insert ("from "impose a fine" onwards there shall be substituted the words "impose a fine which—
- (a) for an offence triable either way, shall not exceed the prescribed sum within the meaning of section 28 of the Criminal Law Act 1977, and
- (b) for a summary offence, shall—
- (i) not exceed £200; and
- (ii) not be of such an amount as would subject the offender, in default of payment of the fine, to a longer term of imprisonment or detention than the term to which he is liable on conviction of the offence."").
§ The noble Lord said: This Amendment removes from Clause 28 the restriction on the amount of a fine which may be imposed on summary conviction of an offence triable either way, for which no fine is prescribed in the legislation creating the offence, to £200. That is the first Amendment. Amendment No. 54A to Clause 32 makes it clear that in the case of such an offence triable either way the maximum fine which may be imposed shall be £1,000 and that that £1,000 shall not be limited to such a figure that would not render the offender liable, should he default on payment of the fine, to a longer period of imprisonment than that to which he could have been sentenced in respect of the original offence.
§ The restriction on the amount of fine which may be imposed in such a case to that figure, which would not cause the offender to run the risk of a period of imprisonment in default of the unpaid fine longer than that which could be imposed in respect of the offence itself, is not 716 perpetuated for offences triable either way. Offences triable either way are by definition more serious than purely summary offences: an unlimited fine is invariably available on indictment and periods of imprisonment are more common than not. We do not feel that it is necessary to continue restricting the powers of magistrates with regard to the new class of offence for the sake of the very rare offences which, on summary conviction, may carry only a very short period of imprisonment. I beg to move.
§ On Question, Amendment agreed to.
§ Clause 32, as amended, agreed to.
§ Clauses 33 to 35 agreed to.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.