Maximum Number of Judges Order 1981

HL Deb 03 March 1981 vol 417 cc1320-6

2.50 p.m.

The Lord Chancellor (Lord Hailsham of Saint Marylebone) rose to move, That the draft order laid before the House on 16th February be approved. The noble and learned Lord said: My Lords, I beg to move that the Motion standing in my name—that is, the Maximum Number of Judges Order 1981—be agreed to.

The effect of this order, which is made under the Administration of Justice Act 1968, is to increase the maximum number of puisne judges from 75 to 77. This number will in fact be 74 with a maximum of 76 if, as I hope will be the case, the Supreme Court Bill, which we discussed yesterday in Committee, receives the Royal Assent.

I am sorry to have to bring it forward but the matter is urgent, as will appear from the short argument I hope to present to the House. The ultimate object which I have in mind is to enable a larger number of High Court judges to try criminal cases in the High Court, but I think perhaps it would be wise for me to paint in a certain amount of background because the members of the judiciary are a totality and the pressures upon them come from more sources than one. For instance, one High Court judge, Mr. Justice Michael Kerr, is the permanent chairman of the Law Commission and when his time comes to an end he will be replaced by another High Court judge. This is a permanent liability of the modern High Court. Another High Court judge, Mr. Justice Browne-Wilkinson, is the permanent President of the Employment Appeal Tribunal, replacing Mr. Justice Slynn, who resigned to take up post as Advocate General at Luxembourg. That is another permanent obligation of the modern High Court Bench.

Mr. Justice Croom-Johnson has, as I see the noble and learned Lord, Lord Elwyn-Jones, is only too well aware, for some years been engaged in the Crown Agents inquiry. Whether or not it will ever come to an end, it is, I am told, unlikely to be completed for quite some time and certainly not before the end of this year. In my present term of office I have been singularly fortunate in having been able to stave off any further judicial inquiries involving the full-time use of a High Court judge, but for all I know one may turn up tomorrow morning and the effect would be to lose the full-time services of another judge. All this, of course, is by way of background.

In addition there is the inexorable flow of civil business in the High Court and that means, alas! that 12 months' delay must now be the normal period elapsing between the setting down of the trial of a civil case for hearing in the High Court and its ultimate appearance in the day's list for hearing; and that is not acceptable. In the third quarter of 1980, for instance, as compared with the third quarter of 1979, writs in the Queen's Bench Division alone went up by 39 per cent.—that is to say, nearly 40 per cent. Of course very few of those will come to trial but presumably the proportion will be stable.

There have been similar substantial increases in other types of work in the civil courts. Owing to the heroic work done by the Lord Chief Justice and the Lord Justice Donaldson, the divisional court has been reducing its intolerable delays and has now succeeded in reducing a backlog of 700 cases to 111. In the Queen's Bench Division and the Chancery Division the work has been kept flowing by the generous—some people would say excessive—use of deputies. That is not a satisfactory way of proceeding. It satisfies neither the public nor the profession.

The Court of Appeal in civil jurisdiction is now sitting in, I think, six divisions and is assisted by puisne judges, retired Lords Justices and Lords of Appeal. The Criminal Division of the Court of Appeal, whose background we were considering yesterday, is struggling with an ever-increasing number of appeals against sentence, conviction or both—standing at the end of 1979 (the latest figure that I have) at 2,723. There is no doubt that people are being kept in prison in anxiety, and perhaps in a few cases wrongly, waiting for their cases to come on.

However, it is the Crown Court about which I have the greatest cause for anxiety. When I was appointed not quite two years ago, I was told that if I appointed 90 full-time circuit judges to operate solely in the South-East and London it would still take 18 months to work off the arrears, while the remaining judiciary, full-time recorders and deputies would be working at full stretch to deal with the current flow. In 1980 the receptions were nearly 56,000 cases, and that was a very heavy increase over 1979. This has been particularly disappointing because during my previous term of office we had reduced the waiting time between committal and arraignment to a tolerable eight weeks in the provinces and a still excessive 17 weeks in the South-East and London. For the first weeks of my present term of office the condition continued to deteriorate. From about Easter last year, however, a few tentative swallows began to appear—heralding, I trust, the approach of spring. Although, as I say, we have had about a 20 per cent. increase in receptions by way of committal to the Crown Court—and in addition I would ask the House to remember that the Crown Court has to deal with appeals from the magistrates' courts and committals for sentence, which have been increasing on a parallel scale—we none the less reduced the backlog by the end of the year by 2,000 cases, which is a very heavy increase in productivity.

However, the real need I am concerned with today is the requirement, which I regard as urgent, for High Court judges to try Crown Court cases in the criminal jurisdiction. I think it is well known to your Lordships that there is a banding of types of case in the Crown Court. Rapes, murders, and a few of the more important types of crime are reserved for what is called the "red judge", and for a limited band of specially selected circuit judges, including of course the Recorder of London and the Common Serjeant of London. But the real need is for High Court judges in this field not to try the top band of cases. Far more difficult from the technical point of view than rapes and murders is the increasing number of lengthy fraud cases running into weeks and even months in length. Noble Lords will recall a brief exchange we had yesterday in a totally different context between the noble Lord, Lord Wigoder, and the noble and learned Lord, Lord Elwyn-Jones, and myself regarding trial by jury in such cases. The difficulty of summing up to juries and actually conducting the trial is, in my view, something which requires a judge of High Court calibre to be constantly available for cases of this kind.

Noble Lords will perhaps recall a recent case at the Old Bailey of an alleged case of international fraud which aborted at the first trial after weeks owing to an attempt to nobble one of the jurors, and which then failed at the second trial at the Court of Appeal on the ground of misdirection by the trial judge. I cannot afford to see—I do not think any of us can—many repetitions of that sort of thing, and so I come to Parliament for an increase in the number of High Court judges, primarily to try cases of this type which may last for weeks or months. If things go well, they will not be much in the public eye, but the need for them is urgent. I have statistics on my side and I shall quote only two before I sit down. Since 1972, the number of crime days—it is a horrible expression—sat by High Court judges in the Crown Court have declined from 10.3 per cent. to only 4.9 per cent. in 1979; or, put in another way, the number of High Court judge days which were sat on crime, excluding the Court of Appeal, has declined from 34.8 per cent. in 1972 to 25.6 per cent. in 1979.

I do not want to detain your Lordships at inordinate length, in view of the long list of work that we have to complete today, but I would endorse what was said yesterday by my noble and learned friend Lord Roskill. He told us that, in his view—and it was based on his vast experience—the level of the Bar at the top is as high as ever it has been and, despite the heavy financial and fiscal penalties, their willingness to accept judicial appointments in the public interest is still undiminished. But we need more High Court judges for the reasons I have given, and if this Motion is passed I have no doubt that the quality of our justice will correspondingly improve. It only remains for me to say that the order was considered in draft by the Joint Committee on Statutory Instruments, which stated in its Eleventh Report to the House that there was no particular point to which the attention of the House should be drawn. I beg to move.

Moved, That the draft order laid before the House on 16th February be approved.—(The Lord Chancellor.)

3.2 p.m.

Lord Elwyn-Jones

My Lords, the facts which have been disclosed by the noble and learned Lord the Lord Chancellor indicate a strong case for approval of this order. Until, I think, about 10 years ago, any increase in the number of judges had to be done by Act of Parliament and I am glad that I was involved as Attorney-General in changing the procedure and enabling it to be done by Order in Council. Otherwise, a good deal of parliamentary time would have been taken in the recurrent necessity which has arisen to increase the number of judges. The number can now be increased by order, subject to parliamentary approval, but I am happy to say that High Court judges cannot be removed by order, and yesterday, in the Supreme Court Bill, we reasserted that proposition and maintained the independence of the judiciary.

The problems that have been adumbrated by the noble and learned Lord certainly confronted me in my term of office. The twofold problems that had then to be faced—and the noble and learned Lord faces them now—were, first and above all, the increase in the number of criminal cases coming on; and, secondly, the unhappy phenomenon that cases were taking longer to try—statistically, 10 per cent. a year per case longer. I do not know whether the noble and learned Lord, by his pressures and endeavours, has been able to achieve any improvement in that record, but I have little doubt that if we had had more time today it would have been an interesting occasion to examine what further steps can be taken to reduce the pressure on the higher judiciary.

I remember that, two or three years ago, I was bold enough to introduce a Bill to take away the right to trial by jury for small thefts of property up to £20, and I was confronted with indignant refusals by, among others, the Lords of Appeal who are here. My old friend Lord Morris of Borth-y-Gest quoted Shakespeare at me—"Who steals my purse steals trash"; taking away the good name of a man deserved trial by jury. When I ventured to remind him that those words were mentioned by the wicked Iago and not by the virtuous Othello, it cut no ice at all. But there it is. It is something that needs looking at further and I am sure that the noble and learned Lord the Lord Chancellor and his department are engaged upon it, with measures such as the more frequent and proper use of summons for directions to shorten proceedings, and trying to deal with the pressure of work in various ways. However, this is not the best occasion to develop that aspect further.

The noble and learned Lord the Lord Chancellor has referred to the fact that, certainly, three of the High Court judges who now count in the number are not available for court work at all. I am happy to say that I myself resisted the setting up of the inquiry into the Crown Agents, but perhaps I must not stir up that controversy again. But I have a guilty conscience about having asked Mr. Justice Croom-Johnson to sit as chairman of the inquiry over the course of the last two or three years. The tendency is, of course—and, in a way, it is a compliment to the judiciary—when some great issue of public confidence arises about corruption in high places, to call first for a High Court judge.

I noted carefully the language of the noble and learned Lord the Lord Chancellor about resisting pressures which come upon him, as indeed it fell to me also to do. But we cannot have it both ways. We cannot restrict the numbers and yet call upon them to do a number of things outside the ordinary course of duties. The importance which the noble and learned Lord the Lord Chancellor has attached to the availability of High Court judges to deal, above all, with difficult fraud cases will, I think, be well received both in the House and elsewhere. In a curious way, from the judicial expertise point of view, it is very much easier to try a rape or a murder case than many of the fraud cases, and the tendency has been, perhaps overmuch, to count upon the excellent work that the Crown Court judges perform in different parts of the country—above all, in the Old Bailey—to engage upon what is the hardest task in the judicial scene. So I am very glad to gather from what has been said that that will be carefully watched hereafter, after some recent unhappy experiences.

The temptation to go on and on about this subject is happily resistible, but it gives rise to matters which we might consider on another occasion. There is a terrible log-jam in the courts in the administration of justice and I have felt at times, I must say, that we were reaching crisis points. The noble and learned Lord the Lord Chancellor was a little more relaxed about it—or apparently more relaxed about it—than I was. But it is something that we must find time generally to consider together here in this House, where there is so much experience and expertise and which might be able to throw up some ideas on this very difficult situation. Up till now, from my experience—and I have travelled to various conferences of Ministers of Justice in Europe, the Commonwealth and other parts of the world—we have maintained a good reputation for the speed with which our cases are tried, particularly in the criminal field. We are now falling behind and, therefore, this is something that Parliament must look at very carefully. In the meantime, obviously, the order deserves the support of the House.

Baroness Wootton of Abinger

My Lords, I am very much interested in the statistics which the noble and learned Lord the Lord Chancellor quoted, showing a reduction in the crime days spent by High Court judges. I take it that this cannot be due to any diminution of criminality, but does it mean that the rest of the community is becoming more litigious in civil cases?

The Lord Chancellor

My Lords, I am very grateful to the noble and learned Lord, Lord Elwyn-Jones, for his friendly welcome. If I may deal, first, with the question just posed to me by the noble Baroness, no, I think the fact of the matter was that when we instituted the Crown Courts in 1972—the Act was, of course, in 1971—we deliberately attempted to band cases so as to favour trial by circuit judges, recorders or deputies, rather than red judges. Of course, it also reflects an increase in civil work in the High Court, but I think it was done as a matter of policy. We have now reached the point at which we find that over a particular class of case we have gone too far. This is a rather impromptu answer but probably it is the right one.

If I may turn to what the noble and learned Lord, Lord Elwyn-Jones, had to say, I thank him very greatly for his friendly welcome. I was one of those who rather wished that the House had taken a different line than it did over the James Committee report but I had to tell the noble and learned Lord—and I think was right to do so—that I did not think it would get through either House of Parliament in the form in which it was originally proposed, dealing as it did with £20 thefts. Curiously enough, the other day hundreds of pounds of public money and the time of 12 jurors were wasted upon trying a case in which the charge was theft of a cabbage.

This rather indicates that the noble and learned Lord was wiser in his generation, as was the late Lord Justice James, than even his noble and learned friend whom we always remember with such affection, Lord Morris of Borth-y-Gest. I think I said at the time, and I certainly think now, that if I wanted to worry about my reputation, my reputation would be more severely damaged by swindling the railway company, like the late Professor Joad, which is a purely summary offence or by being cruel to a dog than by stealing a cabbage. But the old crime of theft is against the Ten Commandments, while nothing supposedly is said in them about railway companies or even cruelty to animals. So we take rather an old-fashioned view about what used to be called larceny and which I have now learned to call theft. At any rate, I sympathised at the time with the noble and learned Lord and I personally thought that he was right.

Yes, cases are taking longer to try and this is a very mysterious fact. In the South-East, it is now taking something like 10 hours on average—of course, averages mean very little in this connection—to try a jury case. That is two whole days. One of the more startling facts about life is that although the increase has been continuous over the whole country, it has remained continuously the case that it takes about two hours longer to try a case in London and the South-East than anywhere else in the country. There are some other very remarkable facts. For instance, 70 per cent. of the people who are charged on the North Eastern circuit for an indictable offence plead guilty. In London, the comparable number is just under 40 per cent. Of those who plead not guilty in the North-East, 70 per cent. are convicted by juries. In London, the figure is under 40 per cent. I do not know whether these figures are related but certainly they are startling and not purely fortuitous. But that is going a long way outside the realms of the present Motion.

Yes, we do have a good reputation. One of the strangest things about the delays of which I have been speaking is that although we have this appalling problem of delay we still take much less time to dispose of cases than either our friends in America, who also have the jury system, or our friends on the Continent who adopt the dossier system, where it takes positively years to get rid of a case. There they try to find out the truth, not whether the prosecution have managed to prove their case—which is not always the same thing. I am digressing now. I just wanted to thank those who have supported me, and to commend the order to your Lordships.

On Question, Motion agreed to.