§ 3.58 p.m.
§ The Attorney-General (Lord Williams of Mostyn)
My Lords, I beg to move that this Bill be now read a second time.
It is in the interests of victims and witnesses—and indeed defendants—that our criminal justice system operates efficiently. It is also in the interests of the wider public. A civilised state should be capable of resolving criminal proceedings swiftly and justly.
In 1993 the Royal Commission on Criminal Justice recommended that defendants should not be able to choose, as an automatic right, to be tried by a jury in cases where magistrates have indicated that they 920 would be content to hear and try the case. In 1997 the Narey Review of Delay in the Criminal Justice System came to the same conclusion. We believe that the change is necessary and right. This Bill gives effect to that.
The venue for a criminal trial is determined by the seriousness of the offence. The most serious offences, such as murder, rape and robbery, can be tried only in the Crown Court. Many offences can be tried only by magistrates. They include offences such as common assault and indecent exposure which carry sentences of imprisonment. I believe that the latter offence is of significant detriment to reputation and often to livelihood. Criminal damage, where the damage amounts to less than £5,000, is triable only in the magistrates' court. Again, I believe it is self-evident that for many people conviction would significantly affect their reputation and livelihood. Finally, there are offences which can be tried either in the magistrates' courts or the Crown Court; for example thefts and burglary. As your Lordships know, they are known in the shorthand as "either-way" offences. In those cases the defendant must consent to be tried by the magistrates and, by not consenting, elects to be tried by a jury in the Crown Court.
Perhaps I may make one or two general comments before I come to the brief specifics of the Bill. I feel that it will not be the specifics—apart from one aspect—that will affect your Lordships' deliberations, but the generality. I know that many whose opinions I value have serious reservations, and I honour and respect them. I do not impugn or impeach the motives of anyone who takes a contrary view to that which I am putting forward. But I hope to convince your Lordships, not least those serried ranks immediately behind me, that if one looks at the argument and at the facts, where they are occasionally allowed to intrude, this is a proper, prudent, proportionate reform of a criminal justice system which is in need of it.
I wish to touch on another matter. The noble and learned Lord the Lord Chief Justice, Lord Bingham, very much wished to be present today to give his view. As your Lordships may know, he is sitting on the western circuit carrying out his judicial functions. He specifically asked me to tell your Lordships that it is a matter of great regret to him that he cannot be here today because the dates were an inevitable, unfortunate, unforeseen clash. But he also wished me to tell your Lordships that he is in support of the curtailment of the automatic right to trial by jury which this Bill brings about. He asked me to repeat that, not to say it for the first time because, as he reminded me, he has been on public record to that effect in the past.
I come quite briefly to the Bill, then I shall look at one or two facts and a little history. This Bill inserts new sections to replace the relevant provisions of the Magistrates' Courts Act 1980, omitting any requirement for the defendant's consent to summary trial in either-way cases. It provides that the initial decision—I underline the word "initial"—as to where 921 these cases are to be heard should rest with the magistrates, based on clear criteria which are new and set out in the Bill.
When determining the mode of trial on the initial decision occasion, magistrates will be required to have regard not only (as present legislation requires) to such factors as the gravity of the offence, the complexity of the case and to any defence representations, but also—this is of critical importance—to the effect of conviction and the likely sentence on the defendant's livelihood and reputation.
We believe that the court should be required to consider the seriousness of the case from the defendant's perspective. In reaching that decision, it will be possible for the magistrates to be informed that a defendant has previous convictions to rebut a claim that he or she is of good character. But a magistrate who is told about previous convictions will not be permitted to participate in a subsequent trial or appeal. I believe it is commonly known that I would not have been willing to agree to such a reform without the appeal mechanism, which I shall describe in a moment. Given the appeal mechanism which is available as of right to a Crown Court judge on this distinct, discrete question of venue, I believe that we have got the balance right.
I want to reiterate one or two facts. Every year well over 90 per cent of all criminal cases are dealt with in the magistrates' courts; that is, 1.8 million cases. Around 400,000 of those are either-way cases. By contrast, around 65,000 either-way cases are dealt with in the Crown Court. Of those, 47,000 were directed to the Crown Court by magistrates; 18,500 defendants elected for Crown Court trial. Those facts are based on 1998 figures.
When it is suggested that in some way, which I have not been able to understand (doubtless my own deficiency) this is an attack on immemorial rights, Magna Carta or any other statute that happens to be conveniently at hand, I remind your Lordships that of those who elected trial, 60 per cent pleaded guilty; 15 per cent were acquitted by the jury. Of those who elected trial at the Crown Court (these are the facts and I make no commentary on them) and were convicted, 90 per cent had previous convictions and over one-third had 10 or more.
I return to what I submit is critical in the scheme of this reform. This Bill introduces a new right of appeal to the Crown Court for the defendant where a magistrates' court decides to try the either-way case itself. The appeal will be heard by a circuit judge who will be able to review the papers relating to the magistrates' decision very quickly, in exactly the same way as Crown Courts currently deal with appeals relating to bail decisions. It is the same tribunal which will be deciding on the venue of trial as presently deals with bail.
I shall spend a sentence or two on bail. A decision on bail by a Crown Court judge is virtually an absolute decision because there is no prospect of appeal from it in the overwhelming number of cases. It is therefore a 922 determinative decision on liberty; it may well be on livelihood, on home and on employment. Therefore the appeal will be heard by a judge who is already entrusted in generally analogous circumstances with a decision on bail, and who has the power, if designated, to pass sentences as grave as those of life imprisonment.
§ Lord Mishcon
My Lords, will my noble and learned friend allow me to ask whether there will be an automatic right to legal aid?
§ Lord Williams of Mostyn
My Lords, the intention is that legal aid costs would be included among these rights when exercised as an appeal to the Crown Court. As far as I am aware, those who apply for bail to the Crown Court, having been refused, have the right to legal representation. I am always happy to give way to my noble friend Lord Mishcon. It may be helpful if I continue with my exposition of how we see things and then deal with distinct points when noble Lords have raised questions which I know trouble some minds.
I retrace one step. Therefore, the decision about venue is to entrusted to a level of the judiciary. Already the Crown Court judge, sitting alone, decides on bail or sentence in the overwhelming number of cases. That is in the context of what presently exists as a right for those tried in the magistrates' court; namely, the automatic right of appeal to the Crown Court. So there is duality: the automatic right to appeal on venue—the place of trial—and the automatic right to appeal on conviction and/or sentence, if there is a conviction in the magistrates' court.
I remind your Lordships that no such automatic right of appeal against conviction and sentence is available if one is convicted and sentenced in the Crown Court by judge and jury. I also remind your Lordships that the automatic right of appeal to a Crown Court judge sitting with magistrates involves a complete re-hearing of all the evidence. That is quite different from the circumscribed right of appeal to the Court of Appeal (Criminal Division) which essentially is based on whether or not there were deficiencies in the conduct of the trial. We believe that under this scheme, with appeal to the Crown Court judge being automatic in the context of venue, the magistrates' decisions should be careful and responsible.
For serious cases, the accepted means for defendants to be tried in our jurisdiction is by jury. It is extremely important that that should continue where the state and the citizen are engaged in matters of proportionate importance. We want to strengthen and improve the workings of the jury system in serious cases. We do not want the system to be unable to deal promptly with serious cases so that very often those accused of serious crime are remanded for too long a period in prison conditions which very often are not satisfactory. Apart from the interests of the prosecution and the defendant, I suggest that the wider community has a legitimate interest, which is not confined to that of the prosecution or the defendant in a specific case. It has a wider, sustainable interest in the 923 efficient, just, fair and prompt conduct of the criminal process. I suggest that in many cases those who elect trial by jury on trivial matters are distorting the system. The law allows them to do I do not attach any obloquy to them. I suggest to your Lordships that we are entitled to have a care for the value of the jury system in appropriate cases.
I do not believe that that system has attached to it any great public support when it discovers that thousands of pounds and hours of scarce court time—it is a very scarce resource indeed—have been devoted to what would be looked at objectively in all the circumstances as quite trivial allegations of theft. Is it right that someone, let us say, who has 10 previous convictions for shoflifting a jelly or a banana from Tesco is automatically entitled to the right to trial by jury? That is disproportionate and not part of a system that should be encouraged.
I repeat that 97 per cent of criminal cases are tried by magistrates. They are drawn from local communities. They come from a wide range of social backgrounds. They are people of different ages and ethnicity. I agree and concede that in the past some sections of our society have been under-represented on the magistracy. I know that the noble and learned Lord the Lord Chancellor is attending to that in the way he is appointing new magistrates.
Without impeaching anyone's motives perhaps I may mention that other reforms to the jury system were introduced, certainly within the living memory of quite a number of us in this Chamber. There was a dreadful outcry about majority verdicts and how the whole foundation of the criminal justice system would fall. Most independent observers—and I do not mean simply those who agree with me—believe that the majority verdict system has worked extremely well.
Peremptory challenges were taken away and there was great and bitter complaint about that. There was the proposal—objected to by the Bar Council at the time—that there should be the opportunity, with the consent of the Law Officers, to ask the Court of Appeal whether or not an unduly lenient sentence should be reviewed with the consequence that it is not academic but that the actual sentence is increased. I am very pleased to see the noble and learned Lord, Lord Mayhew of Twysden, in his place. I forgive him if he smiles. I recognise why. I was among the unreconstructed neanderthals who objected to his prudent and proportional proposals. He will remember that I complained vigorously on behalf of the Bar. In fact, as regards unduly lenient sentences, the system has worked extremely well. I estimate that in about 90 per cent of cases leave is granted and the sentence increased. Public confidence has been improved because two filters were built in by the noble and learned Lord; namely, the 28-day time limit and the requirement lot the Attorney-General's consent. That reform was objected to tooth and nail. Every imaginable argument—and quite a number that were not reasonably imaginable—were deployed at the time.
924 There is always the danger for any of us, living in any kind of enclosed community, to believe that what is presently in operation is necessarily good in every possible respect. I simply suggest that if we look at fact and the scheme put forward, it is an appropriate reform of a criminal justice system which, despite its many virtues, has not yet achieved perfection in this world.
It is known to your Lordships that the ability to choose trial by jury was introduced in 1855 because there were great pressures and delays in the criminal justice system at that time. Jury trial is right for certain kinds of serious case. The real question appears to refine itself in mind to this: should it be available as an automatic right on demand or should it be restricted, subject to these very important safeguards, to criminal cases which objectively justify it? I suggest that the question resolves itself into that.
I know there are deep reservations. Many noble Lords having those reservations and concerns attended the meeting last night. I do not believe that agreement was to be found. But I repeat what my noble friend the Leader of the House has said on so many occasions. The door is always open after Second Reading. If any noble Lords wish to discuss these matters with or without advisers and see me, with or without officials, I am perfectly happy to hear any suggestions and to act on them if they improve the Bill and are consistent with its thrust. No serious offences will be affected in the way I have described. We are not reclassifying any offences.
A number of us have spent many happy hours at the Bar defending people—they always seemed to be farmers—who were charged with breathalyser offences. Certainly, on the Wales and Chester circuit, provided your client was not an English speaker it was quite normal to secure an acquittal. I am glad to see that my noble friend Lord Carlile nods and smiles at those memories. All those offences are no longer tried by jury; only magistrates can try them now. However, they may affect a man's livelihood. I refer to the offences of common assault, criminal damage of under £5,000 and assault of a police officer in the execution of his duty. All those offences are triable only by magistrates.
Offences of dishonesty are sometimes described as the watershed difference, but they are not. Taking a vehicle without the consent of the owner is an offence of dishonesty. You cannot elect trial by jury for that, but may it not resound in some cases in terms of a person's reputation and livelihood? As far as I am aware, the fraudulent use of an excise licence on a motor car is triable only by magistrates. Therefore I suggest—I hope carefully—that there is no fixed line in the sand which is never capable of being reviewed or revisited. What we have tried to put forward here is a proportionate response.
Obviously, financial considerations have their place. I shall not read the figures given in the explanatory memorandum because I know that your Lordships, who take such a keen interest in these matters, will have studied it. It is not simply a matter 925 of cash because cash is not the only relevant resource; judicial and Crown Court time is limited. It is not right, fair, appropriate or supportable that those who are complainants, alleged victims or witnesses in serious cases should have to wait a long time before the issue is determined. It is not right that a child should have to wait what is to that child an eternity to have a trial where the child is a complainant in a case of sexual abuse, with all the unimaginable strains and stresses that that child undergoes. It is not right that the system cannot accommodate those cases more promptly. It is not right that victims and witnesses should have to wait many months unnecessarily before they can give their evidence; to be subjected to the challenge that they cannot really remember what happened; to be disillusioned with what the criminal justice system offers them by way of solace; and to be bitterly discontented at the fact that time passes and they seem to be without even the claim for reasonable redress.
Therefore cash is not the only resource. Judges' time and Crown Court time are also important. It is important that our fellow citizens should wish to serve as jurors in cases they regard as appropriate to the time and voluntary effort they provide. The Crown Court system is more expensive but I stress that I do not believe that that is the determinant. I suggest that within the figures I have produced there are many people who elect trial in the Crown Court to put off the evil day; to delay proceedings; to "hobble" the sentencing judge in coming to the appropriate sentence, as it is much more difficult to sentence appropriately in the minor case where time has passed; and in the hope that witnesses will not turn up or simply become so disenchanted with the system that they can no longer be bothered with it.
We have listened with great care to the views of the noble and learned Lord the Lord Chief Justice and the senior judiciary. They propose the safeguard of giving the defendant a right of appeal on venue. I have set out my own position—which was perfectly well known, in any event—which is in entire accord with what they suggested. I ask with a degree of confidence that this debate should at least address the issues. What I hope—perhaps with a lesser degree of confidence—is that I may already have persuaded some of your Lordships on this matter.
§ Moved, That the Bill be now read a second time.—(Lord Williams of Mostyn.)
§ 4.24 p.m.
§ Lord Cope of Berkeley
My Lords, I believe that as the Question had already been put from the Woolsack we should proceed. It is good to see the noble and learned Lord the Attorney-General back helping out the Home Office after the excitement of introducing a rare Law Officer's Bill earlier this week.
926 However, the Home Office will certainly need some help because this Bill has generated enormous opposition from an extremely wide variety of sources. That opposition originally included the noble and learned Lord himself. When this measure was first suggested a few years ago the noble and learned Lord the Attorney-General, who was then a legal spokesman for the opposition of the day, attacked the central notion of this Bill; namely, the ending for many serious offences of the choice by the accused of a jury trial. In a Times article he called that madness. However, now he recommends the measure to us.
The other day during a debate on the loyal Address he indicated—he told us this more specifically just now—that the difference now is that there is to be an appeal on the magistrates' decision to refuse a jury trial so that the ultimate decision will rest with the Crown Court in the system that the noble and learned Lord described. We are told that it is the existence of this appeal mechanism that turns madness into sanity.
The first conclusion that I draw from that is that the noble and learned Lord thought that the original proposal was mad because he did not trust magistrates to take correct decisions. Today, however, he wants us to think that the prospect of an appeal to a sane judge saves the accused from the madness of decisions that magistrates may take. Your Lordships may think that "madness" is rather a strong word. However, as we know, the noble and learned Lord chooses his words carefully, and that is the word that he chose in the article in the Times in 1993.
In any case, the idea of an appeal being built-in is not a novel one. It has been around at least since the time that the previous government were considering the matter. However, the insertion of an appeal mechanism has two other effects. First, it damages, and probably destroys, the financial savings which were originally expected from the Bill. But it also damages, and probably destroys, the time savings which were expected from the original proposal and which are now claimed as the principal practical reason for bringing the Bill forward.
We are told that the Government's reason for bringing the Bill forward is not primarily financial. The noble and learned Lord said that it was not the determinant in this instance. The Minister in another place also said that quite specifically in May. It is true that the memorandum on the Bill claims that it will, incidentally, as it were, save some money. The sum of £105 million is suggested. I remember that some years ago a Yorkshire ministerial friend of mine mentioned a Treasury demand to save such a sum from a multi-billion pound budget with which he was involved. He asked, "Why can't they just sweep up round the safe?" It is a sum which is well within the margin of error of expenditure on these matters.
However, there is something odd about this estimate. The memorandum also states that the Bill will not cost a single job in the public service. In other words, we are expected to believe that the changes will save £105 million without saving the time of a single judge, any Crown Court official, anyone from the 927 Crown Prosecution Service or anyone else in the public service. It is difficult to imagine how the figures of £105 million and nil can be reconciled. The saving cannot possibly come from administrative expenses alone with no staff effect at all. One can suppose only that the two different calculations are based on different presumptions. I am sure the House would be grateful if, when he winds up, the Minister will tell us more about the way in which the financial and staff estimates in the memorandum are arrived at and why different bases have apparently been used for the two estimates.
In any case, it is a good thing that the noble and learned Lord and the Government are not claiming that the Bill is primarily a money-saving operation. It would be both wrong and risky for the Home Office to put it forward on that basis. Wrong because justice should not be compromised; and risky because the savings are quite likely to prove entirely illusory once the appeal mechanism and everything else are in place.
The other thing which is likely to prove illusory is the idea that the Bill will speed up the process of justice. When the proposal for magistrates alone to decide the trial venue was put forward in 1993 by the Royal Commission, and again in the Narey report on delays in the system in early 1997, the right honourable gentleman the present Home Secretary said that he thought the reduction in delay would prove illusory. Now the new appeal provisions—the very element that makes the Bill sane in the eyes of the noble and learned Lord the Attorney-General—will increase the delays above what the Home Secretary said at that time was illusory.
The Bill makes delay and expense more likely, certainly in comparison with the proposal in its original form. Under the Bill a case would need to go to the magistrates; then to the Crown Court on appeal; and, if refused, back to the magistrates or, if granted, to be heard by the full Crown Court. As the noble and learned Lord said, it would need to go to different magistrates in case the original ones were biased by having heard about any previous convictions of the accused. It seems therefore that the chances of reducing delay by the Bill are illusory.
Of course we all want to reduce delays in the law. The previous government considered this proposal from that point of view. After due thought—and, no doubt, after studying the noble and learned Lord's article in The Times—my colleagues in the Home Office at the time took different action to reduce delays and to deal with the apparent mischief of the accused waiting until he or she got to the doors of the Crown Court and only then pleading guilty. The heavier sentences being imposed by the Crown Court for pleading guilty at a late stage in the legal process have come to the attention of criminals and they have become much more wary of that ploy, judging by the figures that I have seen.
In addition, since 1997, under the 1996 Act there began the process known as "plea before venue", whereby the accused has to enter a plea of guilty or not guilty before it is decided whether the case will be 928 transferred to the Crown Court. For the past two years, only those pleading not guilty have had the choice of venue. The Minister of State, Mr Paul Boateng, said in July that plea before venue had led to a considerable decrease in Crown Court cases. Presumably as a result of these two changes, we know that the number of "either way" cases going to the Crown Court fell from 35,000 a year at the time of the Royal Commission to 18,500 in the last full year for which we have figures. I think those are the facts, one of which, at least, was confirmed by the noble and learned Lord in his remarks. So apparently the delay has been much reduced already.
In other words, the choice of jury trial is to be taken away in these circumstances for no good financial reason and illusory—certainly unproven—reductions in legal delays.
In any case, these practical arguments of finance on the one hand and delay on the other need to be weighed against the arguments of principle. It is said that this choice, ancient in origin—although I agree with the noble and learned Lord that it has been modified considerably over the years—is not allowed in many other countries' legal systems. "Modernisation", therefore, suggests that we should bring our system into line with those of other people. I do not accept that. What is at stake here is our people's confidence in our legal system.
English and Welsh people have been taught to expect that if they are in serious difficulty with the law they will have automatically, or be able to opt for, a trial by jury—that is to say, ordinary people deciding one's guilt or innocence; not clever lawyers or distant judges, but people like themselves. Those who practice in the courts often say how seriously jurors take their duties. Those who have been on juries recognise that this system works and take their duties seriously.
To take away this right of choice in such cases is to take the decision about venue back to the authorities. All authority is criticised these days and has to earn such respect as it can get. People can relate to a box full of jurors much more readily than to a bench of magistrates, however carefully chosen. They will trust their future to them more readily. It is essential that the criminal justice system should have the confidence of the public and this part of our traditional freedoms should not be taken away— particularly not for the sake of copying other countries and certainly not on such flimsy evidence of advantage in terms of money or swifter decisions.
There is a substantial number of our fellow citizens whose trust in the system is already particularly low and to whom we should give particular attention. I refer, of course, to the ethnic minorities. We have the report on the Lawrence case, which set that out for us. It is perverse in the extreme for the Home Office to be setting out now to damage that precious trust by this measure. Not long ago, we agreed in all parts of the House that the criminal justice system—not just the police—should do everything possible to build up the confidence of ethnic minorities. This measure attacks 929 that confidence. That has been made absolutely clear in the representations made to me and, no doubt, to other noble Lords.
The next point of principle concerns the nature of defence. The difference between summary jurisdiction in the magistrates' court and trial on indictment in the Crown Court is not only that the jury decide questions of fact instead of the magistrates; the whole defence arrangements are different. In the magistrates' court, the defence has to respond to the prosecution case as it develops during the trial on the hoof, as it were. In the Crown Court, the defence sees the prosecution case in full, with all the papers, before the trial and can therefore respond more fully to all the accusations that are made. It is no wonder that those concerned primarily with prosecution favour the Bill; they do not have to disclose before trial in that way. We above all people should look to the interests of the defence and the liberty of the subject. Parliament should be the champion of the rights of the individual against the state.
We shall also wish to examine the problem of how defendants are expected to argue that they should be tried in the Crown Court before they have seen the prosecution case, either when they are before the magistrates or when they are on appeal—if it goes to appeal—about venue. As the Bill stands, the defence is expected to make representations to the magistrates and, if necessary, to argue for the venue in the Crown Court on the basis of a formal charge only, without the particulars of the evidence and the witnesses that the prosecution would have to show to the defence before the Crown Court heard the case. If the magistrates are to make sound decisions about where the case should be heard, both they and the defence must have a clear idea of the case and of the evidence against the accused.
At one stage I thought that this idea might be part of a larger European-inspired move to remove the jury system and to replace it with career judges and public prosecutors trained from youth upwards. Of course, the idea emanates from the European Union proposal known as corpus juris. That is a rather grandiose name for a proposal under which, among other things, juries would be removed from cases involving financial fraud against taxpayers' money which had passed through the mechanisms of the European Commission. However, we debated that proposal last Thursday and the noble Lord, Lord Bach, who carried the Home Office flag on that occasion, was thoroughly against it. This House, reinforced by an excellent Select Committee report, was clearly in favour of keeping juries in such cases. I believe that we should all keep up the fight against corpus juris but, likewise, the Government need to explain why they are for juries in that context and against them as far as concerns this Bill.
There are some detailed points which we shall no doubt consider further at a later stage, but I believe that it is right to refer to them briefly here. The Bill states that magistrates, in deciding where a case is to be tried, would have to take into account the possible loss 930 of reputation or livelihood that might flow from conviction in a Crown Court rather than in a magistrates' court. Obviously, we shall want to probe those provisions but it seems to me that it would be wrong for someone with a public reputation to be treated differently in this respect from someone whose reputation extended only to their family and friends. I also believe that it would be wrong for an unemployed man or woman to have a different trial from an employed man or woman solely on the grounds that they were unemployed. Yet, if livelihood is to be the key, presumably that is how the decision would be made.
Similarly, the idea that previous convictions should affect the place of trial is, on the face of it, offensive. Of course it should and, indeed, does affect the sentence if the accused is found guilty at the end of the process, but offences should always be tried solely on the merits of the case. To do otherwise is to damn someone without possibility of reform because he has been convicted a number of times. I believe that the Government will have to work hard to persuade your Lordships that it will not be unfair and potentially prejudicial to decide the place of trial on the basis of the number of previous convictions held by the accused.
For all those reasons, we are opposed to the Bill. However, I suggest to my noble friends and to other Members of your Lordships' House who are against the Bill that we should not try to stifle debate by voting it down at this first debating stage but should abstain at the end of the debate. By saying that, I do not believe and do not wish to imply that the Bill can be changed by amendment into an acceptable Bill. But I have no doubt that we can tease out in Committee and in the later stages the dangers and problems of the Bill. I hope that we can succeed, both today and in the later stages, in persuading the Government to think again and to drop this measure. They would gain only credit for that, certainly with us. The measure was not in the manifesto and the Government can drop it without trouble. Otherwise, we shall do our best to expose the unfairness of the Bill in detail as well as in principle and to expose the frailties of the arguments for it. If the Government persist with it, we shall vote against the Bill passing into law at the appropriate stage at the end of this House's deliberations.
§ 4.44 p.m.
§ Lord Thomas of Gresford
My Lords, I suppose that I should declare an interest. My father was a policeman. I was born in a police house. I spent the first five years of my life living in a police station, after which it became a magistrates' court. After that, my father was the prosecuting inspector in the town of Wrexham, a job which he held for 10 or 12 years. In my teenage years I used to leave school at one o'clock and go to the police station to eat my dinner in the police canteen. So I imbibed the "canteen culture" of the police force with my sausage and mash. Since then, I have been a solicitor for five years, a junior counsel for 10 years, Queen's Counsel for 20 years and, if your 931 Lordships will forgive me, a Recorder of the Crown Court for 25 years. I believe that I have a lifetime experience of the criminal justice system.
It should not be necessary for me to say so, but the noble Lord, Lord Maxwell of Framwellgate, who I see is in his place, suggested in the debate on the gracious Speech that trade unions at the Bar and the Law Society opposed the wonderful new reform which is being put forward. The Home Secretary said that we were pursuing our financial interests. Although the noble and learned Lord the Attorney-General does not go that far, on Tuesday he referred to me as an "unreconstructed barrister". I am an unreconstructed solicitor, an unreconstructed son of a policeman, an unreconstructed liberal and an unreconstructed Liberal-Democrat, and I hope that there are some unreconstructed Members of the Labour Party opposite who will vote down the Bill.
§ Lord Mackenzie of Framwellgate
My Lords, I thank the noble Lord for giving way. By the way, my name is Lord Mackenzie, not Lord Maxwell, but that is a minor detail. During the debate on the Queen's Speech I said that those points were being made by vested interests and, being a former president of the Police Superintendents' Association, I can recognise a vested interest when I see one.
§ Lord Thomas of Gresford
My Lords, I am not going to be lectured by representatives of police organisations when some of the problems that have occurred in the criminal justice system in this country over the past 10 or 15 years have been caused by the failures and negligence of the investigators and not by the lawyers, the courts or the juries.
However, it is not the police, the lawyers or the judges and it is certainly not the politicians who are crucial in attaining justice in this country; it is the people. For no reward to themselves, thousands and thousands of people come forward every day, sometimes at personal risk, to be witnesses or complainants prepared to endure the ordeal of giving evidence in court. They are not treated particularly well, even if they themselves are the victims of the crime in question. But there could be no detection, no trial and no punishment without the people playing their part. Why do they do it? They do it because they have confidence in the system; they believe in it. As the noble Lord, Lord Cope, pointed out, where that confidence is lacking in certain communities—for example, ethnic communities—in this country, the curtains are closed to the police. Every harassment on racist grounds, every wrongful arrest and every wrongful conviction seriously undermines the effectiveness of the system.
The outstanding miscarriages of justice to which I have already referred have changed procedures drastically in the higher courts. Trial by jury started with important safeguards and those have developed over the years to address the deficiencies which have emerged. Consider the jury as the judges of the facts, the arbiters of the ultimate decision of guilt or innocence. Juries are a cross-section of the community 932 from which they are chosen for their age, gender, religion, intelligence and ethnic background, and they determine the facts. They come to court for a fortnight or three weeks, open-minded, anxious to do their duty as they are instructed, and that is exactly what they do.
There have been developments to the jury system, as the noble and learned Lord the Attorney-General pointed out: no challenge without cause, majority verdicts and so on. But the importance of juries is also that they are a crucial factor in increasing the confidence of the public in the system. By and large, jurors report favourably of their experience in the court and their feelings are widely disseminated among the population. That is the first strength of the jury system: a jury comprises a cross-section of the community.
There is also a professional judge who will ensure that the trial is properly conducted according to law and will give the appropriate rulings. In the Crown Court there is full disclosure. To balance the developments that have taken place elsewhere in the jury system, we now have not simply the disclosure of witness statements, which has always been part and parcel of the higher courts, but also primary disclosure of documents. There has been the introduction, for very good reason, of defence statements and there is now secondary disclosure where documents are brought out by the prosecution and handed to the defence. It is the failure of that to happen in the past that has caused some of the miscarriages of justice. There are now no surprises—nothing up the sleeve of either prosecution or defence. Indeed, where information or documents are withheld in the public interest—where public interest immunity is claimed—that is now vetted by the judge, who looks at that information and at those documents and either approves the decision of the prosecution to withhold it or rejects that decision.
The other advantage of a jury trial is that legal argument takes place in the absence of the jury; for example, on whether character should be an issue or whether admissions are admissible. Previous convictions or admissions which are not admissible are not heard by, and do not in any way prejudice the minds of, the jury. Furthermore, the legal principles that a judge in a Crown Court trial applies, both on matters in the absence of the jury and in a summing up, are stated and discussed openly in court and any error that there may be will be rectified on appeal. Finally, in the Crown Court there is a full record of the proceedings.
Let us contrast that with the situation in the magistrates' court. Lay magistrates themselves are extremely public spirited. They work for nothing. I do not criticise them on a personal basis. But if the Magistrates' Association wants to get involved in this argument on the side of the promoters of the Bill, I believe that the spotlight should be turned on that system and that we should take a proper look at it. It is, as the noble Lord said, an enclosed system with which magistrates on the whole are very pleased. But it is not 933 the envy of the world. No other common law system rushes to adopt the system of lay magistrates advised by a clerk. They do not exist as such even in Scotland.
In my father's day, the magistrates' court was known as the police court. In my day, looking back, it was extraordinary how the magistrates' courts were run by the great landowners and coalowners of the district. In a coal-mining and industrial area such as my own, which had returned no Conservative Member of Parliament in this century, it was nevertheless the landowners who ran the magistrates' courts. I shall not name them—their scions, their sons, were Members of your Lordships' House until three weeks ago and it would perhaps be inappropriate for me to do so. It may be that the composition of the magistrates' court today has changed from 30 years ago, but it is still predominantly white, middle aged and middle class. The understanding of magistrates and the sympathy that should be shown to the way of life of the young, the ethnic minorities and the gay community may not be outstanding features of magistrates' courts.
Very little else about the system has altered over the past 30 years. Advice on legal matters is still obtained from the clerk—perhaps one in two or one in three may be a qualified solicitor or barrister. Advice is given in retirement and not in open court. The clerk is called to discuss legal issues in the magistrates' retiring room. The advice cannot be checked. Only on an application to state a case to the Divisional Court has legal reasoning to be given. It is only then that one will learn what kind of advice and what quality of advice has been given to the magistrates. Disclosure is rudimentary. In summary-only trials, no obligation exists on the prosecution to disclose anything to the defence. In either-way cases, the prosecution must give what is called advance information, which may be no more than a case summary or perhaps a photostat of an officer's notebook. Sometimes—for example, my last experience in a magistrates' court earlier this year—one is given a series of statements on the day that one arrives in court. The noble Lord, Lord Cope, referred to the fact that one has to catch up with the prosecution case on the hoof. In the magistrates' court, the cards of the prosecution are still kept closely to the chest.
Legal argument is determined by lay magistrates. Previous convictions and alleged admissions and their admissibility are argued before the lay magistrates. If they decide that a character should not go in or that an admission is not admissible, they are then forced to conduct what in one case the Court of Appeal described as the "mental gymnastics" of thrusting out of their mind all that they have learnt about the particular defendant—his string of convictions or the fact that he has made admissions which have been ruled out. Again, as magistrates do not give reasons, it is a matter of pure speculation in a magistrates' court as to whether the magistrates have been properly advised as to the law and then actually applied the law to the facts. The proceedings are not recorded, save by the clerk writing it all out in hand—writing as much as he can get down. Not even stipendiary magistrates give 934 reasons. In other jurisdictions—for example, the district court in Hong Kong—reasons for verdict are a requirement. It is possible to look at the way the case has been decided by the magistrate, to look at whether he has got the law right, and to see whether he has applied the law to the facts, so that his conclusions can be challenged.
The only possible justification for these derogations from the fairness of a trial in the Crown Court is the limited sentencing power of the magistrates—six months for one offence or a maximum of 12 months for consecutive sentencing for either-way offences. If the Bill goes forward, I believe that the next step will be a Bill to increase to two years the sentencing power of the magistrates. That is the power of the sheriff in Scotland. I am quite certain that that would come in quickly and we would be told by the noble and learned Lord that, on balance, he has made the right decision. I have heard him say that about 20 times. In all the legislation that he promotes, "on balance" he has got it right. That is the way he always puts it. I sometimes think of him as a tightrope walker crossing the swimming baths in Rhyl, in spangled tights—sometimes falling in.
The point I am seeking to make is that the procedural reforms that have been made in the Crown Court in response to the well-known miscarriages of justice have passed the magistrates' court by. For each one of the well-known cases, there must be hundreds of little miscarriages going on in the magistrates' court which undermine, drip, by drip, by drip, people's confidence in the system. So when the acquittal rate in contested trials in the Crown Court runs at 40 per cent and in the magistrates' court at 25 per cent, the reason is not that juries are gullible, or are ready to be hoodwinked, or are easily moved by emotive speeches from mendacious counsel; it is that the trial process in the Crown Court is open, fairer and more up-to-date, and the jury which decides the issues understands the people who are appearing in front of it, whether as witnesses or as defendants.
These proposals mean that the proportion of wrongful convictions will rise and the confidence of the public will decline. They also mean—I know that other noble Lords will refer to this—that people from the ethnic minorities will suffer quite disproportionately. It is not necessary for me to fulminate about Magna Carta or ancient rights and so forth. There has been a lot of nonsense said on that. However, the fact is that for the purpose of saving money this Government seek to deprive defendants of their right to be tried by a fairer and more up-to-date system.
An amusing and ironic element of this matter is that the protagonists, the Home Secretary and the Attorney-General, have completely changed their minds in the space of two years. They have moved round a full 180 degrees. As the noble Lord, Lord Cope, pointed out, there is only a very narrow border between sanity and insanity when the noble and learned Lord the Attorney-General speaks about these proposals.
935 Will the measures save money or prevent delay? The Bill envisages a hearing to determine venue at which both sides are represented, whereas at the moment an election to be heard by the magistrates is followed immediately by the hearing. That will no longer happen under the new proposals if convictions have been disclosed. There may be an appeal to the Crown Court. There is provision to return to the magistrates' court for trial and then a further appeal on conviction to the Crown Court. When the noble and learned Lord the Attorney-General spoke of his concern for child witnesses, does he not appreciate that under this new system of appeal to the Crown Court in a case involving children, those children will have to give their evidence twice? The Crown Court starts from the beginning again. It is a hearing de novo and all witnesses are called again. Instead of continuing as at present where in the Crown Court a child or vulnerable witness comes to give evidence once, that witness will need to give evidence twice.
Are there any abuses of the present system? Yes, perhaps there are, and these take two forms. First, occasionally solicitors may encourage clients to choose a jury trial to make more money. However, they are easily discernible. Generally speaking, there will have been no discussion with counsel. If a solicitor is asked about the defence, he is unable to say. When in the Crown Court, I have refused costs or reduced the costs of counsel to a solicitor where I believed that the system was being abused. I believe that that is the way to deal with such abuse.
Secondly, perhaps there are times when a defendant wants to stay on remand for as long as possible. If one so wishes, the process can be speeded up under the present system by simply getting rid of the committal proceedings when a person elects or chooses to be tried in the Crown Court. I know that other speakers are anxious to deal with these points so I shall not develop those themes.
This is a bad Bill because it is divisive. It splits defendants who are, of course, all presumed to be innocent until proved guilty. They are split into the sheep and the goats. All noble Lords need to do is to envisage St Peter sitting as a magistrate. On one side he has a stairway that leads up to the Crown Court, while on the other side he has a stairway that leads down to the magistrates' court. The white-collar workers go to the left and up the stairs, while the blue-collar workers go down to the right. BUPA? Go up to the left. NHS? Down to the right. Freemasons and Rotarians whose reputations are at stake? They go up to the left and to the Crown Court. Round Table members, particularly those who dress up as Santa Claus, go down to the right to the magistrates' court. The noble and learned Lord the Attorney-General referred to North Wales. I can imagine the circumstances: a Welsh-speaking defendant? He goes up the stairs to the left. An English-speaking Welshman? He goes down the stairs to the right. Liverpudlian? Go straight to gaol. Do not pass Go because he has already pinched the £200 cash.
As I have said, this is a bad Bill. Those who propose it simply do not have the practical experience to realise that it will not achieve its professed aim of saving 936 money. The Bill is unamendable. My party will oppose it to the bitter end. Tempting though it may be, we do not seek to vote against its Second Reading. We feel that it is far better that the Government should have the benefit of the festive season to consider a question during the quiz after the brandy and the mince pies. Which famous government Minister of the Crown described the proposals when they first came forward as "madness"? The answer, as noble Lords will see from the list of today's speakers, is that the name at the top and the bottom of that list ought to be printed upsidedown. That is the way in which the noble and learned Lord the Attorney-General has turned turtle on this issue. As the noble Baroness, Lady Kennedy, might say, they should be sent "Home Officewards" to think again.
§ 5.5 p.m.
§ Lord Ackner
My Lords, one problem facing the newly appointed judge, or even the established judge, is to resist the temptation of entering the forensic arena once appointed to the Bench. I sought, in my time, to deal with that problem by reading the papers thoroughly, making a note of the questions that I thought were important, and then, sadly, seeing all those questions being asked by the Bar so that in fact I had little to do but to sit and act as an umpire. That was of course essentially my proper function.
I have done something similar in regard to this debate because repetition is tedious and judicial repetition is doubly tedious. As I anticipated, the various and many points that I would have made if I had started the debate have been admirably covered by noble Lords who have spoken ahead of me; namely, the noble Lord, Lord Cope, speaking on behalf of the Conservatives and the noble Lord, Lord Thomas, speaking on behalf of the Liberal Democrats.
The point I wish to stress is the way that the Government have approached this problem. We have seen any number of consultative documents on the matter. I believe that virtually the last one was published in July 1998 where the Government sought to set out the history and the arguments on both sides. In the heading "History of Election for Trial" Magna Carta is sub-headed and then the section sets out the development of the present classification. Here one has the first mention of the Interdepartmental Committee on the Distribution of Criminal Business between the Crown Court and Magistrates' Courts which sat in 1975 and has since been known as the James committee. That is because it was Lord Justice James, an eminent and highly respected member of the Court of Appeal, who presided over the committee. The reference that it receives on the first page of the consultative paper is in relation to the largely unrelated developments in the summary jurisdiction of the magistrates' courts and the categories of cases, which had multiplied, and which were simplified by that committee. There is a later reference to the committee in the same document when the Home 937 Office gives a précis of the options and the status quo. It merely states:The fundamental argument in favour of the present arrangements is that allowing defendants charged with any non-summary offence to have access to trial by jury, which is a mode of trial that is considered appropriate for all serious cases, helps to promote confidence in the criminal justice system".A great deal of the James committee's report relates to what we are considering today. Paragraph 47, under the heading, "The choice of forum", states:We now come to the central issue of our inquiry and the one which has exercised us most, namely how the mode of trial of offences in the intermediate category"—the "either-way" category—should be determined … Within the framework of the present system there are three possibilities as to who should decide whether an offence within the intermediate category should be tried summarily or by judge and jury on indictment: the prosecution, the court or the defendant. Under any system all three will have some say, but the final decision must rest with one of them. We consider each in turn".There follows a reference to the prosecution and the Scottish system, and there is later a reference to the court. The report states at paragraph 49:As the possibility of the court determining the forum attracted most attention in the evidence we received, we deal with it in some detail—and indeed it does.
Paragraph 50 states that if the magistrates' court decided on a summary trial, then,both parties would have a right of appeal to the Crown Court against this decision. The right of appeal raised questions of the appropriate period for lodging an appeal; whether the proceedings should be adjourned until that period had expired or whether, to enable the trial to proceed, the defendant should be able to waive his right of appeal; and whether the appeal should he heard in chambers or in open court".I have referred to the report in some detail because the right of appeal was raised some 25 years ago. It is not a sudden flash of wisdom which has returned to my noble and learned friend the Attorney-General his much appreciated sanity.
I continue briefly with references to how the committee dealt with the matter. The committee states at paragraph 53 of the report:In the great majority of cases the reasons given were that the case was gone into more thoroughly in the Crown Court; that there was a jury to try it; that there was a better chance of being acquitted there; that judges were better qualified than magistrates … The only reason given by a significant number of defendants that could be said to be unrelated to the perceived differences between trial on indictment and summary trial was to take advantage of the delay in the case being brought to trial. This was mentioned by l3 per cent of defendants".In the same paragraph the committee states that it is,satisfied on the basis of the results of the survey and in the light of the evidence we have received that the number of cases in which defendants elect trial by jury for 'secondary' reasons (ie reasons not directly related to a preference for trial by judge and jury) is nowhere near large enough to justify substituting for the defendant's right of election a decision by the magistrates' court, even if that decision were subject to appeal".So the relevance of that addition to the problem—the right of appeal—has been carefully weighed up.
938 Perhaps I may quote the committee's conclusions. They should be spelt out. I find it very depressing how little is to be found in consultative papers of what has happened in the past. Last week, during the last debate on the gracious Speech, I drew attention to proposals to reform the Crown Court—which clearly suppressed crucial past decisions because the Court Service must have known how some of its proposals had been treated and finally accepted as being of no substance.
During the passage of the Access to Justice Bill I drew attention to the Lord Chancellor's consultative paper, The Way Ahead, which blamed the barristers' profession for the fact that very few solicitors had effectively exercised their rights of audience. I pointed out that investigations made by two universities at the suit of the Lord Chancellor's Consultative Committee had indicated a variety of reasons for that situation. Solicitors found that it did not pay to do the advocacy work, or that it was disruptive of their practices; or too few solicitors were able to pass what were accepted to be reasonably easy examinations set by their own profession to qualify to exercise such rights.
This is what is said at paragraph 59:Despite the weighty support for the proposal that the decision on mode of trial should be taken by the magistrates' court, we finally rejected it, for several reasons. First, there would be an inherent difficulty in the court having to decide the importance of the case".That point has already been brought out in the submissions made recently to your Lordships. It continues:It would be difficult to lay down appropriate criteria for the court to apply and there would be a danger of their being applied inconsistently by different courts. Secondly, the strong opposition of many of those who made representations and gave evidence upon this issue showed that the suggestion was unlikely to be acceptable to a wide sector of the public. Thirdly, a proposal to substitute the decision of the magistrates for the defendant's right to elect trial by jury is unattractive in so far as it would lead to the magistrates trying summarily a case in which the same court (albeit differently constituted) had refused the defendant's request for jury trial… Fourthly. a procedure involving the hearing and determination by magistrates of representations about the mode of trial, possibly a trial before different justices and the establishment of an appellate process would be a potential cause of delay in the disposal of business and would create an additional task for both magistrates' courts and the Crown Court. Fifthly, although the majority of defendants consent to summary trial, both the OPCS survey and the Sheffield research show that defendants themselves attach importance to the choice of forum at present vested in a defendant. Most of those who at present elect trial by jury do so for reasons connected with the possibility of conviction: they think they will get a fairer trial, or that their case will be considered more carefully or that they have a better chance of acquittal in the Crown Court.The noble Lord, Lord Thomas of Gresford, has explained why they should reach that view. My quotation continues:What matters to them is the fact of conviction or acquittal. Except in the most serious cases, where the defendant knows that if convicted he will receive a substantial sentence of imprisonment, loss of reputation or loss of livelihood rather than the possible sentence may well be what is uppermost in his mind. But these are matters which are related not only to the particular offence, but also to the personal characteristics of the defendant. A professional person of good character, if convicted of a minor offence of dishonesty, for example, will suffer in reputation and may lose his livelihood, whereas for a person with a long record 939 of similar offences the only penalty will probably be the sentence actually imposed. This suggests that if the magistrates' court were to decide the mode of trial, it would be both necessary and right for it to have regard to the consequences of conviction for the defendant, which would inevitably involve considering his character and standing in the community. We consider that it would be quite unacceptable for the courts to discriminate in this way. It would offend against the principle of equality before the law if particular classes of people or people of some standing in the community were able, in effect, to choose their tribunal, while others were denied that choice.The quotation ends with the memorable phrase:Jury trial should be available either to anyone charged with a particular offence, regardless of his personal position, or to no one.That was the view of this highly experienced committee whose main function was to deal with this very problem. Your Lordships may ask, as I asked, why all this has been suppressed. It ought to have been brought to your Lordships' attention a long time back, and I am happy if the only function which I have performed is to make sure that your Lordships have it in full now.
§ 5.24 p.m.
§ Lord Borrie
My Lords, juries have never had any role whatever in the vast majority of criminal cases which are tried in this country. In practice I would have thought that all your Lordships would agree that they never could have, unless of course a wholly disproportionate chunk of taxpayers' money was devoted to provide the resources arid facilities that a universal jury system would require.
Historically, jury trials have been available only for indictable offences for more serious crimes. The rest were tried by what I shall call magistrates' courts although, like the noble Lord, Lord Thomas of Gresford, I recall that they have in the past been called something less attractive. Of course, magistrates' courts in various guises have been with us for a very long time. As the noble and learned Lord the Attorney-General reminded us, it was only as recently as 1855, relatively recently for those of your Lordships who wish to quote Magna Carta, that what I will call this very curious and odd thing in terms of principle was brought in—a choice given to the accused, in certain formerly indictable offences, as to whether he wished to be tried by jury or not. It is that very curious choice which causes the great difficulty and debate, not only the one we are having today. It was also discussed by the James committee and, if I may refer to the noble and learned Lord, Lord Ackner, the James committee considerations were of course gone into very considerably by the Royal Commission in 1993—
§ Earl Russell
My Lords, would the noble Lord agree that election acquired an importance it had never previously had when felony was abolished by Mr Harold Wilson in a fit of absence of mind?
§ Lord Borrie
My Lords, I agree, but my point relates to the types of case referred to at the beginning of the debate by the noble and learned Lord the Attorney-General—very serious cases involving considerable 940 loss of reputation. For those convicted, both today and yesterday, and cases where one never have had any right to choose and where it is, as a matter of course, a summary trial.
Therefore the division between summary trial, either- way cases and, for that matter, indictable cases is a fuzzy one. My point is that over the centuries the lines have been drawn at different places at different times. The 1855 Act came in in the way I have described. The lines have been drawn by government and Parliament as to which cases should go to a jury and which should not. It has always been perfectly proper and indeed respectable, as I think your Lordships will agree, for the burden on the public purse of jury trial and the delays that are caused if the accused opts for trial by jury to be regarded as factors, albeit not as serious as the key factor of gravity of the offence, which divides indictable offences from others.
However, it has always been thought that those other factors I have mentioned have been perfectly proper ones to consider and the 1855 Act itself, which restricted automatically trial by jury, referred to,the need to diminish expense and delay in the administration of justice".
§ Lord Phillips of Sudbury
My Lords, would the noble Lord not accept that theft was always an indictable offence?
§ Lord Borrie
My Lords, yes indeed, and in 1855 certain changes were made. The point I want to emphasise is that expense and delay have been very important factors as to where to draw the line. I think I follow the noble and learned Lord the Attorney-General on the points which he made earlier about delays and how they pollute the course of justice. It is not just a matter of the accused and the delays that affect him: it is the delays as they affect victims and witnesses. I would suggest that these delays also adversely affect society in general, especially if one may assume that memories may not be so good as they were after a period of time has elapsed.
Lord Carlile of Berriew
My Lords, I am grateful to the noble Lord for allowing me to intervene and apologise for being the third person to interrupt him. In the balance between delay and a fair result in a trial, does he agree that a fair result wins by a mile on every occasion?
§ Lord Borrie
Yes, my Lords, of course. But part of the fairness of a trial includes consideration of delay. I shall not talk about the War Crimes Act 1991 and bringing people to trial after 40 or 50 years. In more everyday cases, one can surely agree that delay is a factor in fairness. It is not just the accused who needs fairness; it is fairness to the victim and the witnesses that there is no undue delay in the timely dispatch of criminal business.
Others have already said and will say, so I do not need to repeat it, that jury trial is a splendid feature of our criminal justice system. That is particularly so because it is a partnership between lay people, 941 ordinary members of the public and professional judges. If we were going abroad to a conference to talk about British justice, surely it would be important to emphasise the integrity and independence of our professional judges. With respect to the noble Lord, Lord Thomas of Gresford, we would also want to stress the uniqueness of the British system of lay magistrates.
There have been considerable changes since the days of police courts, to use the shorthand. The number of crimes and criminal cases over the past decades has put a heavy burden on magistrates. But it is generally accepted that, with increased resources, improved selection procedures which include ethnic minorities, improved training of magistrates—it is far better than it was 50 years ago—and greater assistance from legally qualified clerks or advisers, as they like to be called, lay magistrates have been and are a most successful and cost-effective feature of our system.
The Bill does not go into the merits of jury trial. Everyone must surely accept that jury trial must be for the more serious cases. We are dealing with a fairly narrow band of cases in the Bill which is concerned with the either-way cases. I do not need to elaborate on the detailed provisions of the Bill, they will be discussed at length on amendments when we come to the factors which the magistrates must take into account in determining whether jury trial should be available or whether the magistrates will hear the case. The important thing is that in the either-way cases, the accused person will no longer have an unfettered veto on the magistrates' decision. He will have a right of appeal to the Crown Court, in addition to the safeguards provided for by the Royal Commission in 1993 and by the Narey report in 1997.
I remind your Lordships that the Narey report quoted what it called a "senior and distinguished magistrate" as saying:Inevitably the [defendants] who elect [trial by jury]"—in the either-way cases—are experienced defendants, the ones who know how to play the system".
§ Lord Thomas of Gresford
My Lords, I am sorry to interrupt the noble Lord, but it is too much. Does he not appreciate that that is precisely the attitude of the case-hardened magistrate about which we are complaining?
§ Lord Borrie
My Lords, the case-hardened magistrate is like a case-hardened barrister: very experienced.
No one would deny that the chances of acquittal are higher at a jury trial. Defendants, particularly if they are "experienced"—if I, a non-experienced magistrate, may dare to use the same phrase—know best how to work the system and which mode of trial will benefit them.
As no one else has done so, I remind your Lordships that the Royal Commission included a number of people experienced in criminal law. There was a 942 woman QC, experienced in criminal cases; a former president of the Law Society, also experienced in criminal cases; and Sir John May, a former judge of the High Court, later judge in the Court of Appeal. Their view had the same basis as the Bill. They commented that accused persons should be no more entitled to choose the mode of trial that will give them a better chance of acquittal than to choose the judge who is likely to give them the most lenient sentence.
I go back again to the 1855 Act and the curious choice given as to mode of trial. That is the cause of the great difficulty we have today. In the past 20 years, many bodies of distinguished persons have been trying to deal with it.
Magistrates' courts conduct about 95 per cent or 97 per cent of criminal cases in the country today. They can surely be trusted to try cases fairly. If not, the changes which the noble Lord, Lord Thomas of Gresford, would like to see—and there must improvements to be made—would have to be much more substantial. Magistrates deal with huge numbers of cases.
I accept that respectable arguments for no change have been put and will be put later in the debate. That is particularly on the basis that not many cases are tried by jury at present. Juries deal with the serious cases and there is always argument as to where the line should be drawn. Perhaps it may be said that there should be no further change at present. That is the basis of it.
However, perhaps I may direct my fire not only at the noble Lord, Lord Thomas of Gresford, but also at the noble and learned Lord the Attorney-General. Both sides of the argument have a difficulty. The noble Lord, Lord Thomas, said that he would like to put a "spotlight"—that was his word—on the magistrates' courts. I should like to put a spotlight on juries. One of the difficulties for anyone, on whichever side of the argument, is our great lack of knowledge of what goes on in a jury room. Discussions about what goes on in a jury room must be conducted on the basis of assumption, speculation and belief—particularly the latter.
In the debate on the gracious Speech, my noble friend Lady Kennedy said that she believes in the jury. To a greater or lesser degree, no doubt, we all believe in the jury. It seems to me that it is time for Her Majesty's Government to consider again the serious difficulties which, because of Section 8 of the Contempt of Court Act 1981, lie in the way of research into how juries conduct their deliberations. That provision makes it a contempt of court for anyone to inquire into what is said, the opinions expressed and the arguments advanced by jurors in the course of their deliberations. There is no exception for even the most respectable and legitimate academic inquiries which would not seek to attribute views or to name names. It strikes me that not only are the Government bringing forward the proposals in this Bill, but their consultative document on serious fraud cases also contains a number of alternatives to juries because they are said not to understand serious fraud cases. The Government are 943 bringing forward alternative proposals for other modes of trial. It is odd to have such proposals brought forward and for us to discuss them, as with the Bill, when we do not know much about how juries work. How well do they follow such cases?
§ Lord Simon of Glaisdale
My Lords, I hesitate to intervene as a brother-Bencher pleads, but do we know any more about what goes on between magistrates when they decide? If not, the last five minutes of the noble Lord's speech have been entirely beside the point.
§ Lord Borrie
My Lords, the noble and learned Lord makes an extremely good point. I was following the point made by the noble Lord, Lord Thomas of Gresford, that a spotlight should be placed on magistrates. Jury trials deal with the most serious criminal cases in this country. We do not know how well juries follow the arguments of counsel, let alone the summings-up of judges. Surely, that is of some relevance if we are discussing a restriction on jury trial as in this Bill or any other proposals that the Government may bring forward.
I am glad to tell noble Lords that in 1993 the Royal Commission proposed that properly authorised research into how juries reached their verdicts should be allowed. As the Royal Commission then put it, informed debate is better than argument based on "surmise or anecdote". The present Lord Chief Justice, the noble and learned Lord, Lord Bingham, said in an interview last year in The Times that he favoured strictly controlled research into jury deliberations which did not identify individual jurors. He said that nowadays many convictions were overturned by the Court of Appeal because of a judge's failure to give a direction to the jury or to express it in a certain way. It seemed to the noble and learned Lord that it was reasonable and natural to inquire into how juries received and understood those directions, and how much notice they took of them.
No doubt our thoughts about these matters vary. Noble Lords who have addressed juries will have thought about that on many occasions. With respect to all and every one of them, none of them knows. One's opinion of how well a jury understands, and how well the judge does his job in relation to the other partner in the administration of justice, can be based only on one's beliefs. I hope that noble Lords will forgive me for going on longer than I wanted; I was interrupted once or twice.
§ 5.41 p.m.
§ Lord Alexander of Weedon
My Lords, the previous government flirted with this proposal, but Mr Michael Howard as Home Secretary wisely balked at it. There were times during that administration when I and some others on these Benches felt a little lonely and concerned that the Conservative Party had forgotten its traditional role as guardian of our civil liberties. I am glad that it opposes this deeply flawed Bill. I hope that this is the welcome renaissance of a firm, wide-ranging commitment to constitutional rights and 944 freedoms. The bouleversement of the former opposition, now the Government, may reflect no more than an aspect of what one sometimes regards as a truth: that all governments become authoritarian and the best oppositions become libertarian.
In opposing the Bill I speak as chairman of Justice, the all-party law reform group. Consistently and from the outset under all administrations, that group has criticised the proposal to deny a defendant the right to elect trial by jury where Parliament has determined that the cases are serious enough to warrant such mode of trial. It is important that opposition comes from all parties, as will be further shown in this debate. In the recent debate on the gracious Speech, the vice of the Bill was ruthlessly exposed by a formidable triumvirate from across the spectrum of opinion: my noble and learned friend Lord Mayhew of Twysden and the noble Baronesses, Lady Williams of Crosby and Lady Kennedy of The Shaws. All are splendid and doughty fighters for our liberties.
I unreservedly accept the Attorney-General's observation that the category of offences triable by jury is not immutable. I do not understand that anyone in this debate seeks to draw a line in the sand. The reason why I regard this as a constitutional issue is that it should be for Parliament clearly and unequivocally to make any change and not leave it to the discretion of magistrates. There is a proposal in the Bill to amend Section 22 of the Magistrates' Courts Act 1980 to deny jury trial for offences of comparatively small value. That may or may not be accepted, but it has been brought before Parliament in exemplary form for consideration. If that proposal is accepted, magistrates will determine whether the case is of comparatively small value—less than £5,000—but will have no discretion. With great respect to the noble Lord, Lord Borrie, this is not about whether defendants have a veto on the decision of magistrates but whether defendants should have taken away from them an election which was originally introduced in their favour in 1855.
I move from the wider constitutional issue to stress, as have others, the practical difficulties of discretion. The case must be serious in character. All of us who have practised at the Bar know that often the degree of seriousness can be determined only at trial. It is also suggested that a criterion for exercise of the discretion should be that livelihood would be substantially diminished. How on earth does one apply that? Does a bank manager automatically get trial by jury? Does a housewife who is not working have it denied to her? Do the long-term unemployed have that right denied to them? Their chances of future employment may be diminished by conviction.
This Bill is shot through with distinctions of status. Take the suggestion that the question whether a reputation will be seriously damaged must be taken into account. I do not recall seeing a wider recipe in a more equal society for discrimination in favour of the middle classes and against blacks. We are all aware of the delicate situation revealed by the Lawrence report. The evidence is that blacks get a raw deal in the lower courts. If that be disputed, what is undoubtedly true 945 and I believe will not be disputed is that they have more trust in a representative jury. Both lay and stipendiary magistrates, admirable as so many of them are, are socially and ethnically unrepresentative of the general population. It is no good the noble and learned Lord the Attorney-General saying that the Lord Chancellor will take care of that. Any change will take years to work its way through the system.
By contrast, juries contain people with a range of backgrounds similar to those of defendants and can judge with a mix of experience; nor do juries sit for long periods and become jaded to the extent that they become cynical through the process. If the exegesis of the noble Lord, Lord Borrie, as to the desirability of research into jury trials is designed to suggest that across society a jury verdict is somehow less desirable because the reasons behind it are not known, I remind him of the words of Lord Devlin which have tremendous resonance even today: today many feel that the right to jury trial is the lamp by which liberty lives.
The freshness of approach of a jury is central to the fairness of the system. Yet so-called reputation is to be the touchstone of whether someone gets a fair means of trial. At the Bar, like the noble and learned Lord the Attorney-General, I did some libel work. My understanding of the principle is that every one of us is entitled to our proper reputation. That surely means equal opportunity to have the particular case—I emphasise "the particular case"—against us fairly determined. It matters not whether we are middle class, or active in the Conservative or new Labour Party. It matters not whether we are black, unemployed or living on a notorious sink housing estate. It matters not whether we have previous convictions. What matters is that this case, which will affect our reputation, should properly be decided.
I turn to the suggestion that the grant of the right of appeal cures all those difficulties. The delay and anxiety, and the exercise of the energy and resources in pursuing two mini-trials before an accused can get to a jury, I believe to be unfair. But if the principle of the Bill is flawed, if the approach is discriminatory, how can it be made less discriminatory by two hearings which have each to adopt the same unsatisfactory criteria? Flawed laws do not cease to be flawed laws by the grant of a right of appeal.
I have followed with interest the consistency with which the press across the spectrum have deplored the Bill. I think of The Times, the Observer, and the Daily Mail. On 19th May of this year the Daily Mail said:This initiative was not mentioned in Labour's manifesto. There is no evidence that the public wants it. And the 'minor' crimes that Mr Straw wants to take away from juries can be personally devastating to the families of victims and accused alike. No doubt juries are expensive and inconvenient. Sometimes they make mistakes. But they reflect the basic truth that the law isn't made for lawyers, judges, police officers or even Government Ministers, but for the whole British people. We have already lost so much that was once taken for granted … Now Jack Straw seems intent on stripping away the most treasured right of all, essentially to save money. It is difficult to view his plans with anything but deep misgivings".946 I agree with every word of that trenchant article.
This is a Government who are not notably indifferent to the views of the media, and to how things play. I say quite simply that this one spins very badly. Perhaps this will give them cause for second thoughts even if they are deaf to the discrimination entrenched in the Bill and the erosion of an important civil liberty. I hope very much that at some stage we shall have the opportunity, since I believe with others this Bill to be incapable of sensible improvement, to assert the constitutional function of this House and vote it down in favour of the liberties of our people.
§ The Earl of Onslow
My Lords, is my noble friend saying that we should vote it down at Second Reading because it is such an awful Bill, saving time and money—that seems to be important to the Government—by not allowing it to go to Committee and Report stages?
§ Lord Alexander of Weedon
My Lords, as always my noble friend is extremely discriminating. My personal view would be that if the Front Benches of the opposition parties had decided that they should seek to vote it down today I should have rejoiced and followed them gladly and with high step into the Lobby.
§ Lord Williams of Elvel
My Lords, following what the noble Earl, Lord Onslow, said, the noble Lord, Lord Alexander, is quite entitled to challenge the Motion for a Second Reading. I listened carefully to what the noble Lord said. He objects so fundamentally to the Bill that he is perfectly entitled to put the Question, and oppose it.
§ Lord Alexander of Weedon
My Lords, the noble Lord is a talented cricketer and writer about cricket. Before that course is considered, perhaps he would care to give an assurance to the House that the Government do not have troops lurking in the pavilion against that very eventuality.
§ Lord Williams of Elvel
My Lords, whether the Government have troops in the pavilion, I know not. That is up to my noble friend the Chief Whip. I simply say to the noble Lord that having made his speech in the way he has, he would be entitled, probably following the noble Earl, Lord Onslow, to challenge the Second Reading of the Bill.
§ Lord Alexander of Weedon
My Lords, happily I am sure the noble Lord would agree that I would have a discretion—the very discretion that we seek to keep on behalf of defendants in criminal proceedings.
§ 5.55 p.m.
§ Lord Wigoder
My Lords, third time lucky! I find myself in a difficult position in wondering whether to follow the noble Lord, Lord Alexander of Weedon, in 947 his powerful and destructive analysis of the Bill. I think that on the whole I shall not do so. Instead I shall confine myself to my principal objection to the Bill which is not to its contents but to the fact that it represents a further stage in chipping away the rights of defendants and the right to jury trial in this country—a stage embarked on long before now and which will continue well into the future.
I say that it has been embarked on previously because the noble and learned Lord the Attorney-General gave a number of examples of measures covering, broadly speaking, related ground to the measure we are discussing today. Not one single one of the measures he mentioned increased the rights of the defendant. Not one single one of the measures he mentioned increased the opportunities of jury trial. I believe that if in due course we pass the Bill—I trust that we shall not—it will be followed rapidly by other Bills of a similar nature. Lurking in the background is the abolition of juries in long fraud cases. If that came into effect, it would be said, "If this applies to long fraud cases, let's abolish the right in all long cases, whether or not fraud". It would then be said, "If we abolish the use of juries in long fraud cases, why not in short fraud cases as well? The poor juries obviously cannot understand a word of what is going on". Then there would be an attack from the other end, diminishing the number of cases in which election for trial is possible, and increasing over and again the extent of summary trial without any option.
If the noble and learned Lord the Attorney-General were to say that he has not the slightest intention of embarking on any further measures that will restrict jury trials, I would accept at once that he believes it completely; and I would accept that that would be his present intention. However, I believe also that because jury trial inevitably involves conflict with government, further attacks on the independence of juries will follow inexorably. They will follow to the extent of doing substantial harm eventually to the whole structure of which we should be very proud.
We should accept that the role of juries is not simply to return verdicts of guilty or not guilty. Although it is an important role, it is not simply that it should offer to the defendant the opportunity of being tried by his equals. The role of the jury fundamentally is this: I almost hesitate to recall the quotation, and if I begin with the words,The first object of any tyrant",I expect that noble Lords gathered here will rise in unison and complete the rest of the quotation. It is from Lord Devlin's well-known work on jury trial, which states:The first object of any tyrant in Whitehall would be to make Parliament utterly subservient to his will; and the next to overthrow or diminish trial by jury, for no tyrant could afford to leave a subject's freedom in the hands of twelve of his countrymen".That, I believe, is the role that juries play. If I may, I shall give some cases which support that and illustrate why there is a fundamental suspicion by governments of the whole system of jury trial.
948 I give the examples of some 35 years' experience at the criminal Bar prosecuting, defending and trying cases. I have been driven to the conclusion that juries—and I am proud to say it—stand up to authority, even if it may mean stretching the evidence and returning a verdict which is not true according to the evidence, but true in the interests of wider justice.
Before giving those examples, perhaps I may make three brief one-sentence provisos. First, for obvious reasons, I do not propose to identify individual cases. However, there will be one exception to that. Secondly, some of the cases to which I shall refer were not triable either way; not directly caught by the Bill. But that is totally irrelevant to my argument on the progress of jury trials generally.
My third point was made by the noble Lord, Lord Borrie. I refer to our lack of knowledge of what happens in the jury room. I wholeheartedly believe that any form of invasion of the privacy of the jury room would be a total disaster. I have always opposed the suggestion and I shall continue to do so. However, I must add, perhaps curiously, that during my observations I shall repeatedly say, "The reason why a jury took a view in this case is obvious and it is this". One is able to say that because, in certain types of case, a pattern develops. An unexpected verdict on a particular set of facts is repeated over and over again. Then it is possible to state beyond reasonable doubt the motive behind the jury's verdict.
The first category of case relates to the Official Secrets Act 1911. I am sorry to say that the Act was passed by a Liberal government, and went through all its stages in this House in five columns of debate in Hansard. It passed through all its stages in the other place in 35 minutes flat! Your Lordships will remember that Section 2 of the Act imposed draconian penalties on any civil servant who released any information, however trivial, about what was happening in his office. I refer, for example, to the number of cups of tea the Minister had drunk that day or the names of Cabinet Ministers.
A series of trials took place in the 1960s and 1970s in which governments attempted to intimidate, primarily, civil servants in their employment by prosecuting them under that draconian Act for the most ridiculous, absurd revelations or leaks. The matters were in no way related to the security of the country or to the safety of the state. Prosecutions were brought and the judge, bound by the law, had to tell the jury, "It is very difficult to see that there is any defence in this case"; and in one case after another, the jury returned a "not guilty" verdict. I suggest that it is beyond doubt that such juries were saying to the Government, "You are being oppressive. We do not like what you are doing and for that reason we are going to throw this case back in your face".
That series of cases came to an end when my noble friend Lord Hutchinson of Lullington and happened to co-defend in an Official Secrets Act case in which a High Court judge finally took his courage in his hands and told the jury he thought it time that Section 2 of the Act was pensioned off. In due course, it was.
949 The second type are obscenity cases. The decision as to what was or was not obscene was decided by the tribunal without further assistance from the law. Such offences were triable either way, but I cannot recall any case before lay justices, a stipendiary magistrate or a professional judge alone trying a case on appeal at Quarter Sessions in which the tribunal said, "This item is not obscene". Of course, if there had been a photograph of the noble and learned Lord in his spangled tights, perhaps a different view of the proceedings might have been taken. That was the view of the professionals—and I include lay justices.
When cases went for trial by jury, in one after another case the books, photographs or whatever were found not to be obscene. No one now doubts that the juries and not the professional tribunals were then in tune with the times. That is why that Act has, for all practical purposes, fallen into disuse.
The third type of case, recently in the news, relates to the battered wives syndrome. I refer to cases in which battered wives have been driven to such a state by their husbands that they have killed them. The charge has been one of murder and the judge has been under an obligation to tell the jurors that the law provides that they cannot convict of manslaughter instead of murder unless the violence was so imminent in relation to the killing that at the time the wife must have lost all her self-control. Some juries instructed in that way convicted, but some—and all praise to them—notwithstanding the judge's direction, proceeded to acquit of murder and return a verdict of manslaughter. Those cases and those actions by those juries, supplemented by the media, lead to cases being brought before the Court of Appeal and to the law being modified.
I turn to police evidence and try to put the matter as quietly and moderately as I can. Some time ago in some areas of this country, undoubtedly some police officers committed perjury over and over again in order to secure a conviction. There is now no doubt about that. It was not discovered by the lay magistrates, the stipendiary magistrates or the judges on appeal at the Quarter Sessions. The juries sensed that something was wrong and realised that at that time in those places police officers could not be trusted unless there was strong corroborative evidence. Juries, one after another, returned verdicts of "not guilty". As we now know, subsequent inquiries justified that.
There are other reasons why juries stand up to the judge or the tribunal and show independence. In some cases, a witness is malicious and offensively racially bigoted, and the jury takes the view, "Never mind what the defendant has done, we are going to teach that witness a lesson. We are going to put on record the fact that we thoroughly dislike him and hold him in contempt". The guilt or innocence of the defendant is let go in those circumstances. I said that I should mention only one such case; it is the recent case in the United States of O.J. Simpson. I believe that my suggestion is the only reasonable one for the "not guilty" verdicts which were eventually reached.
950 The role of the jury is crucially important in cases in which the prosecuting authority and prosecution witnesses show a degree of unfairness. It used to be a commonplace in my younger days that judges would sum up violently in favour of the prosecution, and over and over again juries would return and say "not guilty", for the simple reason that they wanted to cock a snook at the judge and make it clear what they thought of his behaviour. Similar cases exist where those responsible for the prosecution have failed at times to disclose the kind of evidence that they should have disclosed to the defence, yet it comes to the attention of the jury. Every defence counsel knows that from that moment onwards only one verdict will be returned.
I remember a particular case with some pleasure because the defendant was one of the few defendants acquitted after I had addressed the jury who was actually grateful for the result. The defendant was a detective superintendent charged with stealing a packet of crayons worth sixpence—which gives an idea of the date of the matter—from Woolworth's. On my advice he elected to go for trial. I cannot truthfully say that he had much of a defence. One did one's best with limited material. The jury were out for five minutes and then returned with a "not guilty" verdict. I have seen that pattern happen in cases over and over again. It is obvious that, in that case, the jury took the view: "Yes, he did it, but he is a detective superintendent. It is the first time there has been anything like this. If we convict him, he will lose his job and pension and he and his family will suffer for the rest of their lives. We know perfectly well that he will never do it again".
In those circumstances, in the interests of a wider justice, the jury found that man not guilty of that trivial charge. I appreciate that such a situation may be covered under the present Bill, but I should hesitate before putting my trust in magistrates or in the judge on an appeal to the Crown Court determining that that was a suitable case for jury trial, bearing in mind the trivial amount of the money involved.
In those circumstances, it seems to me that the noble Lord, Lord Mackenzie of Framwellgate, was quite right when he referred, in the passage to which my noble friend also referred, to there being "vested interests" at work on those issues. There are indeed vested interests at work: those of authority, government, the Civil Service and the police. One must face up to that fact. It has always been that way and always will be. It is therefore a real temptation for governments to introduce such measures to try to restrict the right of ordinary people in this country to trial by jury.
To pass the Bill would be to take a significant step on a slippery downward slope. I am delighted to hear the contributions to the debate, exactly as I was delighted to hear, from the almost unanimous contributions made at the meeting last night with the Home Secretary, that there is every prospect that, in due course, we shall halt the Bill in its tracks.
§ 6.13 p.m.
§ Lord Archer of Sandwell
My Lords, if the noble Lord, Lord Wigoder, finds that it fortifies him, I agree with almost every word he said. I hope that he will forgive me if, on a matter which is perhaps rather marginal to the debate, I say that I find myself on the side of my noble friend Lord Borrie. It would be helpful if we knew more about some of the dialogues that take place in the jury room and the workings of jurors' minds. It would be possible to introduce safeguards into that research. It is a subject on which I have been corresponding with my noble and learned friend the Lord Chancellor and on which I welcome the support of my noble friend Lord Borrie.
I should very much like to congratulate the noble Lord, Lord Wigoder, who did not introduce a disquisition about the previous convictions of my noble and learned friend the Attorney-General. My noble and learned friend does not require me to defend him. The question of whether he altered his mind since the matter was last discussed or whether anything turned on the absence of an appeal seems to me to be fairly marginal to what we are discussing today. If my noble and learned friend had said that he had listened to the arguments with an open mind and that he concluded it possible that on the previous occasion he might have been wrong, would that not have been commendable? Do we not complain that governments do not listen with an open mind?
I can think of a number of issues on which I hope my noble and learned friend and his colleagues will listen again with an open mind in the weeks that lie ahead. I do not criticise my noble and learned friend for having an open ear. Indeed, if I may say so—I hope that the noble Lord, Lord Cope, will forgive me for doing so—I should have thought that the change of mind might have received a more generous response from the Opposition. Two years ago, it was they who were deploying the arguments which my noble and learned friend deployed this evening.
The Government now say, "Well, you were right. We have decided that we agree with you". Was there rejoicing over the repentant sinner? Did the fatted calf collapse in mortal terror? No—the reply was not, "So glad that we can now agree", it was, "Well, if you have come to join us, we are no longer standing in the same place". Oppositions, too, are entitled to change their minds.
§ Lord Cope of Berkeley
My Lords, I apologise for interrupting the noble and learned Lord and I am grateful to him for giving way. I should like to point out that the Conservatives changed their minds when in government, not when in opposition. Michael Howard did not proceed with the proposal, which was put to him by the Royal Commission. He received it along with other proposals and he left it somewhat in the air to await future developments—which have not been reported to us as yet. We did not proceed with this proposal while in government.
§ Lord Archer of Sandwell
My Lords, I believed that my noble and learned friend changed his mind while in 952 government. It is rather like a barn dance where the couples change over in the middle. I mention it only so that we do not go overboard. To change one's mind is not compulsory. If some of us today say precisely what we were saying two years ago and before that, I hope that your Lordships will find it in your hearts to forgive us, even if that is not fashionable on the Front Benches.
I turn to the merits. I begin with two propositions which are unlikely to be challenged. As I understand it, in this debate they are common ground. First, in a contested case, the prospects of being acquitted in a jury trial are substantially greater than in a trial before magistrates. The current statistics state that in jury trials the prospects of an acquittal are 40 per cent; before magistrates they are 25 per cent. So much is conceded in the consultation paper.
Of course there is room for argument about the conclusions to be drawn from that research: those with a good defence are more likely to opt for jury trial; many cases before magistrates were not a bright prospect from the outset. However, it seems to emerge that if one is charged with an offence, the prospects of persuading a jury that there is at least a doubt are greater than the prospects of persuading magistrates; in particular, I suspect, stipendary magistrates. In view of what some noble Lords have said earlier, I say at once that that is not a criticism of magistrates. I have been happily married for 45 years, for 37 of them to a magistrate. I am a respectful admirer of the magistracy.
We have no statistics as to how many acquitted defendants are really guilty, any more than we have statistics as to how many convictions were unjust. There is no institutional means within any legal system to ensure that a court never makes a mistake of fact. But the conclusion is inescapable that if one is charged unjustly with an offence of which one is innocent, one is more likely to obtain justice before a jury. It must follow that a right to choose trial by jury helps to safeguard the innocent.
The second proposition is that on this subject it is tempting to indulge in absolutes. Of course, it would be over the top to accuse my noble and learned friend of wanting to sweep away a right enshrined in Magna Carta. Those who drafted Magna Carta addressed a different issue. But those who speak of Magna Carta emphasise two quite important factors. First, the practice of trial by jury goes back a long way in our history. That practice developed during the 13th century, and by the 14th century it was established. Secondly, the claim to put oneself "on the country", to have guilt or innocence decided by a jury, has been a right—not a concession, not a privilege, not a matter of grace, not a judgment of convenience—for something like 600 years.
§ Lord Phillips of Sudbury
My Lords, I thank my noble friend for giving way. Is it not right that a form of trial by jury existed in Saxon times?
§ Lord Archer of Sandwell
Yes, my Lords. The noble Lord should not tempt me. I had the privilege of being 953 reared at the feet of Theodore Plucknett, whose name is probably hardly remembered these days, but for those of us of a certain generation it was a name to conjure with. I could give a long disquisition on the point, but I doubt that would take me to the head of the popularity stakes in your Lordships' House.
By the time of Blackstone, in the 18th century, trial by jury was associated with constitutional freedom. Perhaps I am allowed one quotation. Blackstone said:Delay and little inconveniences in the form of justice are the price all free nations must pay for their liberty in more substantial matters".Of course, my noble friends are right. The extent of the right has not always been clearly defined. The insistent voice of economy was not invented by my right honourable friend Gordon Brown, nor even by the previous Government. In the period of Henry VII there was discussion about methods of expediting legal trials. There have been successive inroads, but they always appear to relate to statutory offences which, at the time, were thought of as rather marginal and not really part of the criminal law. There was no summary trial for indictable offences, as my noble friend Lord Borrie pointed out, until 1855.
I stand to be corrected because I have not conducted deep research on the matter, but I have the impression that at that time those who were pressing for that statute were concerned about the severe penalties handed out in the higher courts. They were concerned to divert relatively minor offences to a court that passed relatively minor sentences. As I understand, at the time it was hardly noticed that they might be inventing a new procedure for determining guilt or innocence.
Most importantly, if an offence were indictable—if it were thought of as a real criminal offence—it could be tried summarily only with the consent of the accused. That has remained the position. I believe that the noble and learned Lord, Lord Ackner, pointed out that the James Committee considered the proposal to change that tradition and rejected it. However, it is quite true that four years ago the Royal Commission took a different view. That commission gave two reasons. First, it said that trials before magistrates were quicker and cheaper, although it said that that was not the reason why it made the recommendation. Secondly, it said that in principle a defendant should not be able to choose one mode of trial in preference to another because it offered him a better chance of acquittal.
That goes to the heart of the debate. If there is a difference between the prospect of acquittal in one forum rather than another, does that not indicate that there is a margin of doubt of which in one case the benefit is given to the defendant but in the other it is denied to him? If there is a right to the benefit of the doubt, is there not a right to choose the forum which is more likely to accord that benefit? If the reply to that question is yes, it is no answer to say that summary trial is quicker and cheaper. It is also no answer to say that there is a right of appeal from the magistrates as to the mode of trial and that the final decision is taken by someone else.
954 The right of the individual to choose has been removed. That is the central issue. We can discuss other questions in later debates, but perhaps I may be permitted a word on one other matter. It is common ground that the size of the penalty which the accused may face, if he is convicted, is not the only criterion when considering the seriousness of the question of guilt or innocence. A person's reputation may be totally destroyed by a conviction. The Government answer that by saying that it is a factor that magistrates will be required to have in mind.
Surely, the fact that that concession is made indicates that an acquittal may be seen as more important for an upright citizen with a good character than for a less respectable individual with criminal convictions or an individual who does not have a job? So the argument runs that we are justified in consigning that second individual to a forum where he is more likely to be convicted. That cannot be squared with simple justice. The second individual is more likely to be stopped and questioned, he is more likely to be arrested or charged, and he is more likely to be convicted, so we add to his handicaps by denying him a more advantageous forum.
I believe that there are ways of reducing pointless committals to the Crown Court. In issue is the right to have guilt or innocence decided by a jury. I see no injustice in requiring a defendant to indicate whether he is contesting a case before the matter of forum is addressed. If the case is not contested, the right to insist on a trial on indictment should fall because there is no issue of guilt or innocence.
That solution was canvassed in 1995 in a Home Office consultation document. I thought that a persuasive case was deployed. I confess that I have lost sight of that proposal.
§ Baroness Kennedy of The Shaws
My Lords, I believe that has now been introduced by way of plea before venue. That is one of the reasons why we have seen such a considerable reduction in the number of people electing trial in the Crown Court. That procedure now exists.
§ Lord Archer of Sandwell
My Lords, I am grateful to my noble friend. These days I find I am a little out of date on some matters. If that is the case, perhaps we should see what consequences have followed from that and give them time to develop.
§ Baroness Kennedy of The Shaws
My Lords, since the Royal Commission considered this matter and made its recommendation that there should be a change on the issue of election the numbers have dropped by half. At that time 34,000 cases went to the Crown Court and now the number is 18,000—a halving—as a result of administrative changes introduced by the previous Government.
§ Lord Archer of Sandwell
My Lords, I am most grateful to my noble friend. In future I shall always employ her to do my research!
955 Following the intervention of my noble friend, it appears that a great deal of this fuss addresses a problem that has already passed under the bridge. Of course, it will not be the first time in our history that that has happened under any government.
This is an argument about the merits of the proposal, and not about my noble and learned friend's right to change his mind. If that right is established and if, on reflection, he can change his mind perhaps, on further reflection, he can change it again.
§ 6.28 p.m.
§ Lord Mayhew of Twysden
My Lords, the noble and learned Lord, Lord Archer of Sandwell, has subjected the Bill to an intellectually clinical examination and one that has devastating effects for its acceptability. There has also been a passionate and no less intellectually rigorous speech in opposition to the Bill from my noble friend Lord Alexander of Weedon. Your Lordships will not be surprised to hear that I propose to ad opt a more earthy approach, but one which leads no less reliably to the same conclusion.
In a criminal case, it is for the Crown to shoulder the burden of proof; it is exactly the same in the case of Her Majesty's Ministers who bring forward this Bill. They must satisfy this House that this Bill will make a better provision for justice in England and Wales than exists at the moment. I agree with the Attorney-General that the wider public have an interest—this is not just a matter for experts—and that we must look to see what is most prudent and most sensible. Of course we must not set our faces against change, either because we live in an enclosed society, as he put it, or because we are getting older and simply find change harder to take.
The noble and learned Lord, Lord Williams, should be worried about the depth as well as the width of the anxieties and fears expressed across such a wide range by bodies that are both knowledgeable and informed. One specific such body which is close to the Minister's heart is the Society of Black Lawyers. It has a special foundation in opposing this Bill by reason of what was stated by Professor Lee Bridges, who directs the Legal Research Institute at Warwick University, and who is highly respected. He said:Black people arc more likely to be stopped by the police than whites, more likely to be over-charged, more likely to elect trial to the Crown Court, where they are more likely to be acquitted".In the light of the deep significance that the Government rightly attach to the Lawrence report, can they accept that there is a real perception of ethnic unfairness in the probable impact of the provisions of this Bill? If so, can they accept also that in matters of confidence generally—perhaps never more so than in the case of confidence in the justice system—perception is extremely important? It may be because I have spent so much time in Ireland that I tend to believe that perception sometimes matters more than objective fact.
I felt sorry for the Attorney-General as the debate progressed because all the fire was coming from one direction. When the noble Lord, Lord Borrie, spoke, I thought that a little support was coming his way, 956 which must have been welcome, but I am afraid that he was wounded by friendly fire, if I can put it that way, when the noble Lord talked about case-hardened magistrates being experienced magistrates and thereby dismissing the proposition that sometimes magistrates have heard it all a little too often to be able to discriminate in a case where there is genuine doubt.
I felt the Minister was not persuasive when in introducing this Bill he spoke as though its important function would be to prevent trivial cases being brought before the Crown Court at the election of the accused. I do not know whether I was alone—I do not believe I was—but I had the impression that the Bill was being sold on the basis that most of the cases it would catch were fairly trivial. He spoke of somebody being charged with the theft of a banana from Tesco. I hope and believe that it would be an extremely unusual prosecutor who thought the public interest lay in prosecuting the case of the theft of one banana.
It may be of interest to mention that either-way offences include grievous bodily harm; actual bodily harm; cruelty or neglect of children; indecent assault; gross indecency on a child; burglary; theft; false accounting; forgery; criminal damage; unlawfully importing, producing, supplying or possessing a controlled drug; violent disorder and so forth. Those are not sneezing matters and I strongly hold the view that it is not to improve the quality of the justice that we remove the right to elect for trial by jury when charged by matters of that kind. It does not matter that that right does not exist in Scotland; we are not comparing like with like. In Scotland, justice is dispensed by professional judges. It does not matter that it is only since 1857 and not the 14th century that there has been the right to choose. What matters is whether we believe that the present dispensation is a safeguard that we wish to preserve and which the wider public, sensibly advising themselves, ought to wish to see preserved.
I agree with the Attorney-General that we cannot draw a line in the sand and say that on the one hand this case is appropriate for jury trial, and on the other, this case is appropriate for summary trial; and expect to get general agreement. But we can say that there is an area in the middle where it is appropriate to give the accused person the right to have his or her case tried by jury. The case has not been made out to disturb that.
What is the true purpose of this Bill? I do not believe that it is to secure a better quality of justice. Is it to save money? It cannot be negligible in the eyes of the Treasury that over £100 million may be saved. I know how these matters are liable to arise. The Home Secretary wants more money to build more prisons. "Very well", says the Chief Secretary, "You can start by saving £100 million by changing the availability of jury trial for a start". I do not say that that is what happened, but I recognise all too readily that that may be the case.
Is it to save delay? The right of appeal will take up quite a lot of time. Have the Government made any estimate of the number of appeals that will he made and what they will cost? As we have been told already, 957 legal aid will be available. What will it cost? How long will it take? Then there are the problems of magistrates being disqualified who dealt with the matter in the first instance.
Is it to stop manipulation of the justice system? It is said that people opt to go to a jury trial and plead guilty at the last moment. That has been dealt with by more than one noble Lord. My noble friend Lord Cope said that that has now changed; it is now a matter for an increased sentence if a person changes his plea at the last minute. Or, putting it another way, there is an incentive to plead at an early stage in terms of a reduction of sentence. None of those objectives, if they are the Government's objectives, has been fulfilled.
I am not resisting change for the sake of it. The Attorney-General was kind enough to remind me that he objected to my measure which led to a right of appeal against an unduly lenient sentence. That was in the days when he was not decked out, as the noble Lord, Lord Thomas of Gresford, observed, in the spangled pants of the tightrope walker; he came stomping in like a good' un dressed in battle dress; and very impressive he was, except that I thought he was wrong then and he is kind enough to realise that now.
The downside of this dubious coin, the other side of which I have ventured to examine, is that the Bill enshrines in statute the notion that one person's reputation is more worthy to be safeguarded by the state than another's. I find that deeply objectionable. I also find it astonishing from the point view of a Labour Government dedicated to equality of treatment for our citizens.
The next provision to which I object is one to which the Government are driven by the first because they have to continue by saying that, in dealing with the reputation point, magistrates may take into account previous convictions. Such defendants are most at risk of being wrongfully arrested, convicted and imprisoned. One, at least, of those previous convictions may have been incurred wrongly at the hands of magistrates doing their best but getting it wrong. I do not believe that that provision is justified. It is repugnant.
We are all considering whether this Bill will effect improvement. It will not. It is objectively and generally sustainable to choose trial by jury, but in every case where it is chosen, by definition it is subjectively sustainable and reasonable to do so. I have only admiration for magistrates, but where such a choice is made it will be done for reasons which appear to be good to the accused. I am not prepared to believe that, even in the majority of cases, those reasons are unworthy.
I uphold the continued right of the harassed and innocent housewife, for example, about whom I spoke a few days ago on the final day of speeches on the gracious Speech. She should continue to have the right to choose to be tried by jury when she is innocent in the belief that she has a better chance of not being wrongly convicted than if she were tried by the case-hardened magistrate referred to by the noble Lord, Lord Borrie. 958 I uphold that right. Incidentally, the example I gave related to my wife. When reading Hansard, I was horrified to see that I had not made it clear that she had not even been arrested. I hope that she has not read it. She gave me permission to use that illustration from 25 years ago. She was deeply harassed; and somehow she left the supermarket wheeling a trolley on to the pavement, over one intersection and then the next, before realising to her horror that she had not paid. She rushed back. Can anyone seriously suppose that there would be as good a chance of having her innocence upheld by a magistrates' court with its great width of experience of "having heard it all before" as before a jury? It would be unjustified to remove that right. I find it alarming and the thin end of the wedge against trial by jury. Doubtless that is the reason why it was not in the manifesto when so much else was. That is certainly reason enough to justify the withdrawal of this Bill.
§ 6.42 p.m.
§ Lord Hutchinson of Lullington
My Lords, it is nice to see that the Union of Attorney-Generals is not as strong as it used to be. I say to my noble friend Lord Thomas that he is now going to hear a certain degree of fulmination.
This short Bill, with its anodyne and misleading title, is as dangerous a piece of legislation as has entered this House certainly in the 20 years I have had the privilege of being here. It is clear from the debate so far that many other speakers feel the same. If presented honestly, the title would have been the "Abolition of the Right to Trial by Jury" Bill which would have inconveniently alerted the public to what the Government were about.
When the idea of giving these unheard-of powers to the magistrates was floated by the previous Home Secretary in 1997, we know, as we have already heard, that they were roundly condemned by the Attorney-General and Mr. Straw. Indeed, on 27th February, Mr Straw said:If … a Member of Parliament or even a Secretary of State were charged with … dishonesty, would they not insist on being tried by a jury? … why should others be denied that right?".—[Official Report, Commons, 27/2/97; col. 434.]Now he calls such a claim "eccentric".
Before his preferment the Attorney-General called the idea, as we know, "madness". I do not agree with the noble and learned Lord, Lord Archer, that this 180-degree turn is not of importance. He now says, somewhat ingenuously, that the provision of an appeal is what made him change his mind. One should remind the House that in the same debate in the other place, Mr Howard said, at col. 432:There may also need to be a right of appeal against the magistrates' decision not to allow a case to go to the Crown court".
§ Lord Williams of Mostyn
My Lords, perhaps I may correct a number of mis-statements that have been made on this point. I wrote my article in 1993, not 959 1997, in response to the Runciman proposals which had no reference at all to right of appeal.
§ Lord Hutchinson of Lullington
My Lords, I am grateful for the correction. I say straightaway that I was not aware of the two dates. The House may well feel that to change one's view on a fundamental principle such as this is a matter of some relevance in this debate. As regards the noble and learned Lord the Lord Chief Justice, we are told by the Attorney-General that he agrees and supports this curtailment of the right to trial by jury. I do not know whether that is accurate or not because among the papers we have been given is one containing a lecture given by the noble and learned Lord, Lord Bingham, which I have here. He is recorded as saying that a more fundamental point was that an important guarantee of public acceptance of the unique role and function of lay justices was that a defendant accused of other than a minor crime was not obliged against his will to be tried by justices. He said:I think it is an important and valuable principle that those liable for conviction of serious crime by justices should voluntarily accept the justices exercise of jurisdiction".I sincerely hope that we do not have another U-turn.
As we have heard, the accused person is described as having a veto on the magistrates and never having the right to choose the venue of his trial. That is a partisan choice and not a judicial one. As I have already said, it has been described as eccentric.
The truth of the matter is perfectly simple and has been so for many years. Unless Parliament has specifically legislated in regard to an offence, anyone charged with an indictable offence is entitled to trial by jury. That is the Englishman's right. Since 1855 and for centuries before that, Parliament has given the accused person the power to waive that right if he so wishes and to elect to be tried in the magistrates' court if the offence is of a minor kind and if the magistrates consider it suitable.
The noble Lord, Lord Borrie, said that the change introduced in 1855 was curious. However, it was perfectly straightforward. The defendant had that right on all indictable offences. I refer to the sensible course to be taken—which has always been taken ever since—as regards many indictable offences which can be of a quite small and unimportant nature. If the offence is of that kind, the defendant should be given the right to be tried summarily. There is nothing curious about that; there is no problem with it. When the accused appears in court, the clerk tells him that the magistrates think that the offence is one that could suitably be tried by them but only if the accused consents to their doing so. In other words, the accused has the right to jury trial, but he can waive it if he wants to. If he does not want to, he is committed to the higher court. The words, "if he consents", which have appeared in every single subsequent summary jurisdiction Act, simply express the recognition of the English law that if you have a right, it is for you to decide how you use it. There is no veto, no eccentricity or "playing the system."
960 When the Runciman Report states it does not think that a defendant should be able to choose the court solely on the basis of where he or she thinks that they will get a fairer hearing, I simply pose the question to the House, "Why not?", even if the course they choose is more expensive. I say to the noble and learned Lord the Attorney-General that he is cherry picking as regards the Runciman Report which he has quoted so extensively. The Runciman Report states in terms that where a conviction for a minor theft means loss of reputation, in its opinion jury trial is appropriate. Yet, in his opening speech, the noble and learned Lord said that what clutters up the courts is person after person going to trial on what appear to be trivial affairs. The Runciman Report states that those are exactly the sort of trivial offences which, on the face of it, justify jury trial.
Mr Straw says:In no sense is jury trial a fundamental ancient right enshrined in the constitution".In his opening speech the noble and learned Lord the Attorney-General said that he too could not understand how anyone could argue such a thing. Is jury trial not part of our constitutional arrangements? Is it not the living proof of democracy in action? What on earth, then, did the noble and learned Lord, Lord Steyn—one of our more recent Law Lords—mean in the recent lecture, circulated to all of us before the debate, when he said:The jury system is an integral and indispensable part of our constitutional arrangements"?adding,Only the most compelling grounds of public interest could ever justify the abandonment of trial by jury in any area".Why does he agree with his illustrious predecessor, Lord Devlin, when he wrote, as mentioned by my noble friend, Lord Wigoder, about diminishing trial by jury? Lord Devlin described Parliament and the jury as the two wheels of the constitution.
It has also been said that the right we are discussing is not an ancient right. I do not know how far back one must go to establish that. We all know that in 1670 those eccentric Quakers, Penn and Mead, were charged with the street offence of unlawful assembly. They were preaching in public a creed that the Government did not like. They were tried by jury and the members of the jury were imprisoned and fined by the judge for sticking resolutely to their unwanted verdict of not guilty. That jury upheld the Quakers' civil liberties against the power of the state, against the establishment and against the vainglory and arrogance of Ministers, as they continue—I am glad to say—to do today, 300 years later.
The language of the Bill says it all. Let us compare it with the language of the Bill it seeks to amend. The 1977 Act states, in words we know so well:The court shall explain to the accused in ordinary language that it appears more suitable for him to be tried summarily for the offence and that he can either consent to be so tried or, if he wishes, be tried by a jury".961 The proposed new Section 19 in Clause 1 of the Bill states:The court shall consider whether the accused ought to be tried summarily or on indictment".The proposed new Section 20(2) states,Where the court decides—not Parliament—that the accused ought to be tried summarily then, subject to the outcome of any appeal … the accused shall be tried summarily".If I may say so, that language says it all. In those few sickening lines of prose, the citizen's right to trial by jury is to be swept away—Magna Carta buried by Labour nova.
In the proposed new Section 19 (2), the accused is to be permitted to make representations. He now becomes a supplicant; his ancient right is now a concession, an indulgence. But of course one must note in passing that freedom still lives in the proposed new Section 21 which states:This section applies where a prosecution is being carried on by—The proposed new Section 21(2) states:
- (a) the Attorney General,
- (b) the Solicitor General, or
- (c) the Director of Public Prosecutions".If the person carrying on the prosecution applies for the accused to be tried on indictment—(a) sections 19 and 20 above shall not apply".That is the position. As we have heard so often, justices must have regard to reputation. We have heard the comments of the noble and learned Lord, Lord Mayhew, on that.
The Narey Report, on which this Bill is founded, had the astonishing arrogance to state:Such cases would only be a minority".I do not know whether the noble and learned Lord the Attorney-General agrees with that, but I, like others, venture to assert that every man or woman of good character standing before the court has a reputation. Be he white or black, English or Welsh, rich or poor, it is no business of any magistrate, any lawyer, or any judge, however powerful, to be a judge of that. What if the accused has a conviction? It is to be rolled out and presented in public to the justices. What about the concepts of innocent until proved guilty and equal justice for all? As has already been said, is the most vulnerable of all persons, the most open to wrongful arrest and false accusation, to be deprived of jury trial for all time? Is the man who is trying to remake his life, trying to go straight—even a man with 20 convictions—to be deprived of jury trial for all time?
I do not know whether the Attorney-General realises the power he is putting into the hands of the police or the apprehension of the black community. I do not know whether he remembers the appalling miscarriages which are still with us arising from false confessions and the like. This is the very two-tier system of justice which was so roundly condemned in 962 this House by the predecessor of the noble and learned Lord, Lord Bingham, that doughty champion of the common law, Lord Taylor.
It is, if I may say so, in a long professional life in the criminal courts, always a moment to savour when an accused person, whoever he may be, stands in the dock alone, with the panoply of the law lined up before him, and claims his right to be tried—not by the establishment which has put him there, but by his peers, ordinary men and women from the world outside where he lives. Now, under this proposed amendment, he is to be humiliated before the court, turned into a supplicant and forced against his will to be tried by a tribunal which he sees as part of the establishment and which, rightly or wrongly, he perceives to be weighted against him.
But, in any event, Clause 19 of the Bill blows this whole shabby edifice to smithereens. Why should reputation or loss of a job entitle a person to jury trial? Why is a jury trial appropriate only for him or her? Why should an accused's rights be restored to him or her only in those cases? There is only one answer. It has not been given to us. When it really matters, we need a better, safer and fairer system of justice, a system which brings a higher quality of justice. Is not the whole basis of our system of law that everyone is equal before the law; that everyone is entitled to the same quality of justice, with the same guarantees of fairness and the same due process?
How on earth can the representations which the accused is permitted to make be presented to the justices? "You are not perceived to be fair minded and unprejudiced; you are perceived to accept too readily police evidence. You will not understand my lifestyle; you are all white, middle-class citizens and I am black and deprived. Your clerk is not legally qualified or, if he is, he is a very poor lawyer. If you turn me down, the judge to whom I can appeal sits with you regularly on appeals; he sits with you in committees and he knows you socially." Or maybe, in the end, the immortal words of the former captain of the England rugby team, "You are a lot of old prejudiced and incompetent farts." How is one to make that submission to this court?
Finally, to what offences does the Bill apply? The noble and learned Lord, Lord Mayhew, was the first in the debate to refer to them. They have never been referred to otherwise. I shall not repeat them all, but I can add a few more to those given by the noble and learned Lord: possessing offensive weapons; false accountancy; obtaining property by deception; all forms of criminal damage; indecent assault; all drug offences; possession of indecent or obscene material; all customs offences—a whole swathe of criminal offences which deeply affect the public in their ordinary lives. Remove all those from jury trial and what is left? A rump of heinous offences, most of which hardly touch the citizen as he goes about his daily business.
We know the next chapter; it has already been mentioned in the Government's dismantling of what they find is an annoyingly obstructive criminal 963 process. The noble Lord, Lord Borrie, wants research into the jury room. Who wants research into the jury room to find out something about the jury which makes it less authoritative and, as has been mentioned, the removal after that of all long and complicated cases from jury trial as being, in the view of the establishment, too difficult for the common man to understand and, of course, too costly for the poor taxpayer? Sliced off the top, sliced off the bottom. What is left for jury trial?
Again in the same lecture, the noble and learned Lord, Lord Steyn, said that without an independent Bar and the jury, the judiciary would be unequal to its task of protecting the individual from abuses by the executive. In the Access to Justice Act the Lord Chancellor has undermined, perhaps forever, the independence of the advocate. Now the noble and learned Lord the Attorney-General—the leader of the Bar, the leader of my profession—is undermining the jury trial. This is indeed a sad day for justice, a sad day for the law and, if I may say so, a sad day for the common man.
§ Lord Bach
My Lords, I hope the House will forgive me. We are debating a very serious matter but perhaps it is apposite at this stage to remind noble Lords that the Companion states that,In debates not formally time limited"—such as this one—Lords opening or winding up, from either side, are expected to keep within 20 minutes. Other speakers are expected to keep within 15 minutes. These are only guidelines and, on occasion, a speech of outstanding importance, or a Ministerial speech winding up an exceptionally long debate, may exceed the limit".I hope that your Lordships will forgive me for reminding the House of that, but it is important for all Members of the House.
§ 7.7 p.m.
§ Lord Mackenzie of Framwellgate
My Lords, it is with some hesitation that I speak this evening but I think the noble and learned Lord the Attorney-General needs all the help that he can get. I have been attacked twice already and I have not yet spoken. I am therefore speaking with even more trepidation. But I accept the challenge and I am happy to continue. It is an important topic.
I do not speak as a member of the Bar or as a member of the Law Society. I speak with some experience of the law as a former police officer. I was a detective constable, a detective sergeant, a detective inspector and a detective superintendent, so I do have some practical knowledge of what goes on in the criminal justice process.
I should remind your Lordships that you do not have a monopoly in expecting and demanding justice. Many people in society and many police officers—there has been some criticism of the police in the debate—work very hard to achieve justice, often at great risk to themselves. I say no more than that.
It is a truism running through the criminal justice process that justice delayed is justice denied. There is no doubt about that. It follows that anything that 964 speeds up the process will normally be welcomed, provided such expedition is achieved in accordance with due process and fairness. It is my submission that the Bill achieves both objectives.
I believe, with the noble Lord, Lord Thomas of Gresford, in upholding the value of the jury. I do not demur one little bit. But it saddened me to hear him launch such a vicious attack on magistrates, who deal with 95 per cent of all cases. I believe it is unfortunate that when people read Hansard that will appear as a criticism of the quality of justice in magistrates' courts. Magistrates do a difficult job under difficult circumstances and they are, of course, lay people, as, indeed, are members of juries. I was surprised at the impugning of the value of magistrates.
In my view, the new procedures are in line with just and proper legal principles. As I mentioned, about 95 per cent of all trials now go through the lower courts without any major outcry about faulty or unjust procedures. Indeed, many of the complaints that I hear from colleagues or former colleagues are about perverse jury decisions in the higher courts. I found it rather interesting that the noble Lord, Lord Wigoder, prayed in aid the case of the detective superintendent whom he represented, who was clearly wrongfully acquitted by a jury. Somehow the noble Lord seemed to know that the jury really believed that the superintendent was guilty but, nonetheless, he was acquitted. The noble Lord used that as an argument in favour of jury trial. I believe that it was a perverse argument.
Lord Carlile of Berriew
My Lords, I am grateful to the noble Lord for giving way. With his very distinguished service in the police and his very distinguished representation of senior police officers, would he agree that the occasional rogue police officer (there are some) who seeks to obtain a wrongful conviction by telling lies would far rather tell those lies to a magistrates' court than to a jury?
§ Lord Mackenzie of Framwellgate
My Lords, I find that question difficult to answer because I find it difficult to put myself in the position of a police officer who is prepared to tell lies in either tribunal. Of course, if noble Lords wish, I shall go on to talk about rogue lawyers in a moment. There are some of those about, too, as I am sure your Lordships are aware.
Many of the cases now dealt with in magistrates' courts are identical to those dealt with by the Bill. I mention cases such as theft, burglary and going equipped to steal. With the agreement of the accused, those are dealt with in magistrates' courts. As the noble and learned Lord the Attorney-General has mentioned, also covered are offences involving violence against the person, some assaults and some woundings. But he also mentioned other offences, such as taking vehicles without consent, which presumably involves some dishonesty, and criminal damage under £5,000, which clearly affects reputation. He also mentioned, in detail which I shall not repeat, the case of the drunk driver who in the past used to abuse—there is no doubt about that—the jury system. 965 I notice that the noble Lord opposite nods. We all accept that from time to time there are abuses. But we are looking for a more expeditious way of dealing with such matters.
So what is the outcry about from those opponents who speak of breaches of fundamental rights and Magna Carta and so forth? Again, I was proposing to talk on that matter but I believe it has been well answered by the noble and learned Lord the Attorney-General.
The noble and learned Lord, Lord Bingham, the Lord Chief Justice, has been mentioned this evening. Perhaps I may quote something which he said recently:It would be absurd to grant a jury trial in all cases, however trivial, and those who drafted the terms of the Magna Carta would be surprised to find that intention attributed to them".I agree, my Lords. Serious cases will continue to be sent by magistrates to the Crown Court for trial. Under the Bill, defendants will have a right of appeal to a Crown Court judge against the decision of the magistrates. In any event, almost 75 per cent of either way cases currently tried at Crown Courts are sent there at the behest of magistrates. I agree with my noble friend Lord Borrie that a spotlight should be placed not just on magistrates but on juries. The police service has argued for some time that perverse jury verdicts do occur. There is a dearth of research into what goes on in the jury room. Such research could be carried out in a confidential manner and I believe that there is some merit in that suggestion.
It may also be of interest that England and Wales is the only jurisdiction in the world—I repeat, in the world—which still allows defendants in some cases to choose the venue of their trial. In Scotland, our near devolved neighbour, the decision is made not even by the court; it is made by the prosecution.
I submit that the new process in this Bill is fair and just to the defendant, and it is supported, as I mentioned, by the Lord Chief Justice. It is also supported by the Magistrates' Association, HM Customs and Excise, the Royal College of Psychiatrists, the police and some judges. We are talking about some 18,500 out of the 1.8 million cases where defendants are prosecuted each year in the courts. In any case, many of those plead guilty.
What about the £85 million wasted by aborted trials, needless adjournments and delays, defendants not turning up and lawyers' mistakes? Those are not my figures but those of the National Audit Office, as reported in The Times only yesterday. I know from personal experience of defendants who elect trial, not for better justice or a fairer trial, but simply because they know that they are guilty and that they will be found guilty. They elect trial because either they want to spend more time on bail with their families, if they are lucky, and that is perfectly understandable, or, if they go to prison, the time spent on remand will be far more agreeable than that spent as a sentenced prisoner. Of course, the time spent on remand comes off the prison sentence. Therefore, in my experience the process is abused by defendants.
966 I also know of solicitors who used to elect trial on behalf of their clients—it may be that some still do—again, simply to prolong the process and in order to maximise legal aid payments. Those are the realities. It is no good for your Lordships to put your heads in the sand and pretend that those things do not happen. Some members of the public see this place as a House full of lawyers, representing the interests of lawyers, passing laws and the like. I have to say that I do not agree with that view, but I can well understand that that is the perception of people outside this House.
We have a public duty to reduce the costs of justice to the public purse. Some of the funds may then be applied to provide the additional police officers noble Lords opposite are always so keen to appoint. The provisions in the Bill would save more than £100 million—a not insignificant sum. Although we cannot put a price on justice, it is a saving which must be made provided that justice is not diminished. That is the issue which perhaps divides us. I respect the arguments put forward by noble Lords who express an opposing view. However, I believe that the measures in the Bill, with the necessary procedure and appeal mechanism built in, meet the demands of justice.
Why on earth should we be out of step with the rest of the world on this matter? As the noble and learned Lord the Lord Chief Justice, said:It is wrong for the defendant, on whose list of priorities the reaching of a just and expeditious decision may not rank very highly, to have the ability to choose the mode of trial".Neither can it be right to call upon 12 members of the public to give up their valuable time to serve as jurors to try extremely petty cases; for example, the theft of a can of lemonade by a man with 20 previous convictions who clearly is abusing the system. Even then the decision is subject to a right of appeal to a Crown Court judge. Not only do such cases cause disenchantment among jurors; they also undermine the whole system of jury trial itself.
§ The Earl of Onslow
My Lords, I am grateful to the noble Lord for giving way. Am I not correct that if "plod" see a chap who they know has a long list of convictions, they think, quite reasonably on many occasions, that they may as well pick him up? They then find that the man has been picked up unfairly. It is that man more than anyone else who needs the protection of the court because he has been unfairly picked up. I must make another point to the noble Lord. We should stand alone because we have stood alone in the quality of our justice for 800 years.
§ Lord Mackenzie of Framwellgate
My Lords, the noble Earl describes a picture of the police—or "plod" as he put it—picking up someone because he has previous convictions. The noble Earl did not explain the reason and he did not explain what the evidence was. If he thinks that they simply go around looking for someone, he has a distorted sense of what the police do. They have far more important things to do than pick up petty criminals, who in many cases they will know have previous convictions. I reject that example outright.
967 I have mentioned the problem of undermining the system of justice. Is such a change compatible with the European Convention on Human Rights? Yes, it is. The convention guarantees the right to a fair trial; not to trial by jury. It is my submission, in spite of what the noble Lord, Lord Thomas, said, that a magistrates' court does provide the necessary legal safeguards for a fair trial.
I could go on, but time does not permit. In my judgment, justice is not diminished by giving this power to decide to a magistrate, with a right of appeal to a Crown Court judge. It will be a further step in the process of modernising the judicial system of this country.
§ 7.21 p.m.
My Lords, perhaps I may assure the noble Lord, Lord Mackenzie of Framwellgate, that for years I have had great respect for the police, based partly on my four-and-a-half years in the Home Office but also on my judicial experience, during which I had to try more than 100 jury cases over eight years. On pretty well every occasion I respected the integrity of the police and their desire to help not only to secure convictions but to ensure that justice was done. I admire the noble Lord's attempt to defend the Bill, but I have to say that the arguments that have been put against the Bill by other noble Lords have been put so fully and powerfully that I doubt whether there is an answer to them. At any rate, their speeches have enabled me to shorten mine.
I am glad that my noble and learned friend Lord Mayhew of Twysden has spoken. When I spent five years as Recorder of Rochester, he prosecuted in more cases than any other counsel. So much so that on one occasion—I hope that I am not being too frivolous—at a City banquet, when he was a junior barrister, I referred to him as "the Recorder of Rochester". I am glad, too, that my noble friend Lord Onslow is to speak, because I spent three years as Recorder of Guildford, of which he is the High Steward. There again, by the way, I had great respect for the police.
It seems to me that the responsibility given to jurors since the early 13th century for helping to achieve justice and enforce the law is a manifestation of democracy. Indeed, it was the earliest manifestation of democracy—of letting the people feel that it was they who were playing a part not only in achieving justice but in helping to govern the country by deciding whether or not someone should be prosecuted and sentenced. The jury system is democratic because it enables people at large to feel that they play a vital part. Furthermore, it has the advantage, to a greater extent in our country than anywhere else, of enabling the legal profession, especially those performing judicial functions, to feel that they can concentrate on applying the law while letting the representatives of the people decide the facts.
The Government hope that the Bill will reduce by £105 million the cost of administering justice. I think it is doubtful whether that will happen. As my noble and learned friend Lord Mayhew pointed out, although 968 there would be fewer jury trials, there would be more appeals of various kinds, each of which would involve an increase in costs. Therefore, the Government's principal reason in favour of the Bill is doubtfully valid. However, even if the Government were correct in estimating that costs would be reduced by £105 million, surely your Lordships and Parliament in general have to consider whether depriving the people, to the extent envisaged by the Bill, of the fundamental right of trial by jury can be justified by a reduction of costs which might be rather more modest than the Government have pointed out. My own view is that it is not justified and so I hope that the Bill does not become law.
§ 7.26 p.m.
§ Lord Simon of Glaisdale
My Lords, before I turn to the Bill, perhaps I may, as a long superannuated predecessor in law of the noble and learned Lord the Attorney-General, pay a tribute to the way in which he introduced the Bill. My parliamentary memory goes back to 1951, but even reviewing all the great parliamentarians that I have heard, his speech was a model of persuasiveness and perfect in tone. One can really only judge its merits when one considers how completely this Bill and all the arguments sustaining it have been torn to pieces during the subsequent debate.
Having said that—it is a genuine tribute—perhaps I may turn to the Bill, which is "short-sighted, wrong and unfair." That is not language I normally use from the Cross-Benches about any government Bill. They are the words of the Home Secretary himself when this scheme was mooted in the previous Parliament.
Having been preceded by such conclusive arguments, and as I am to be succeeded by the noble Baroness who made such an effective speech in the debate on the Address and others whom your Lordships will want to hear, I shall confine myself to only two matters. The jury is a microcosm of democratic society. It has all the advantages of the macrocosm and some of its subsidiary drawbacks. In particular, it is an unexampled way of providing for hard cases without making bad law. Of course, a bad law makes hard cases, but even the most beneficent law will throw up hard cases. That was perceived in ancient times, where it was seen that a statute which did justice in the generality of cases would almost inevitably do injustice in a minority of cases—the exceptional cases. If one tries to frame a statute to cover those hard cases, one will create an injustice in the generality of cases. That is why hard cases are said to make bad law.
But the jury can take care of that. The noble Lord, Lord Wigoder, and other noble Lords have given examples. The judge must apply the law as laid clown by statute and by his predecessors. So must the magistrate, advised by the clerk. They cannot do palm tree justice. If they do, they will surely create injustice sooner rather than later. But the jury can do that, The jury, as has been shown, can meet hard cases—any hard case—by its verdict being unquestioned. The jury can do that without making bad law.
969 To my mind, that aspect is particularly important when we consider the representations that have been made by and on behalf of the ethnic minorities. I believe that all of us who have tried to devote our lives to justice have been deeply disturbed by the Macpherson proceedings. Now we are told in relation to this Bill that the ethnic minorities are genuinely anxious lest its implications would do them a disservice. That point was put in very measured terms by the noble Lord, Lord Ahmed, in the debate on the humble Address.
So my first point is this. We need the jury in each-way cases to meet the hard case and so that the defendant knows that he is being tried by his fellows. I believe that it was the noble and learned Lord, Lord Archer, who used the ancient phrase about the defendant putting himself on his country. That is a wonderful phrase. The defendant submits himself to the verdict of his fellow countrymen; people like himself.
The second matter with which I want to deal is the cost. The financial memorandum mentions a saving of £105 million. I am not one of those among your Lordships who say the word "Treasury" with a hiss. I believe that it is entirely necessary. If the queen is to eat bread and honey, the king should be in his counting-house. So I do not regard £105 million as a trifle. However, I should like to know how this figure was arrived at. Is it the cost at the time of the Royal Commission, or is it the cost today? I ask this because the noble Baroness, Lady Kennedy, demonstrated in her intervention, there has been a dramatic fall in the number of cases where a jury is claimed in the circumstances your Lordships are reviewing.
I should also like to know what is going to be the cost of the appeal procedures. The noble Lord, Lord Mishcon, elicited an assurance that legal aid would be available, so the costs will not be nugatory. I hope that the noble and learned Lord the Attorney-General will tell us what that figure will be, so that we can see both sides of the accounts. Of course, it is perfectly true that the system has been abused. However, it will also be abused under these provisions. Instead of simply claiming a jury trial at the outset, the defendant, in order to spin things out if he thinks it worth his while, will appeal. That will waste time and money. Such actions will involve delay and expense and are implicit in this Bill.
Finally, I wish to say this. Trial by jury, pace the noble Lord, Lord Warner, does go back in germ to Magna Carta. The noble and learned Lord, Lord Archer, traced its potency afterwards, and that has been enlarged upon by others of your Lordships. Since 1855 we have vouchsafed to those who are the concern of this Bill the right to choose trial by jury. They value it and they protest that that right is being taken away. This proposal has been made without any reference to them and they are to be deprived of it.
§ 7.38 p.m.
§ Baroness Kennedy of The Shaws
My Lords, I shall start by taking noble Lords into my confidence. I have known the Secretary of State for a very long time. He did pupillage in the chambers my boyfriend was in back in the 1970s. I got to know him rather well and I am very fond of him. Indeed, when yesterday I saw him in the Palace, I clutched him to my bosom, as I always do, and I hope that I shall be able to do so again even after we have disposed of the Bill.
However, I must tell noble Lords that I am worried about my right hon. Friend because I believe that it is difficult to find an explanation for his recent rash of illiberalism and his volte-face on this subject. I can only think that he is keeping bad company. He must be spending too much time with the trimmers and the cost-cutters and those who exist without reference to principle. By way of mitigation for him I believe that this is a temporary aberration and I am sure that we shall be able to woo him back to the right path.
When we bumped into each other yesterday, my right hon. Friend said, "Helena, you're a proud Scot. They do this in Scotland". There is no election by the accused in Scotland on both-way cases; it is the procurator fiscal who is able to choose. I said that that was not a very good argument; we had just gone through the process of devolution, based on the principle that the Scots, proud of their traditions, which are distinctive in education and law, should be able to enjoy their distinctiveness. I believe that the English should be able to enjoy their distinctiveness too. I hope that the English will see that this proposal tramples on what is distinctive and precious for them and that it is an intolerable destruction of an important right.
My noble and learned friend the Attorney-General has said that there have been encroachments on the right to trial by jury on previous occasions; for example, the right to trial by jury in drink-driving cases was taken away, as it was in relation to criminal damage. It should be emphasised that the difference with this proposal is that in those cases everyone was affected, irrespective of class, or whether they were black or white or rich or poor; and no choice was being made by magistrates as to whether they were to benefit from one form of trial or another. What is especially invidious about this change is that it gives that discretion to magistrates, and we can almost invariably guess that it runs the risk of being abused on occasions. I want to emphasise the way in which the proposal is being received by the black community, whose members are very alarmed by the Bill—and they are right to be alarmed. I shall deal with that point later.
It is regrettable that the Government have embarked on such a politically controversial and unnecessary reform. A key theme underlying the Government's arguments in favour of abolition of the right of election is that many defendants are manipulative, almost malign, and that they play the system to cause unnecessary delay and to attempt to avoid the consequences of their anti-social behaviour.
971 Although I accept that there are such people in the system, in my experience that description does not fit most ordinary defendants. The majority of citizens say that they do not understand all that there is to understand about the criminal justice system and how it operates. I suggest that most accused people are in exactly the same position of bewilderment at the situation in which they find themselves. They are usually people with social problems rather than manipulative people. They are confused, and want above all else to escape from their immediate predicament as soon as possible, even when it may not be in their best legal interest to do so. Obviously, they want to minimise the negative consequences for themselves; but that is not the same as seeking to avoid the consequences altogether. After all, the vast majority of defendants, even those charged with the most serious either-way offences plead guilty—95 per cent plead guilty and are dealt with in a magistrates' court. The majority even of those who are dealt with on electable (either-way) offences ask to have them dealt with in the magistrates' court.
It seems that the findings of the Royal Commission report are the grounds most cited to justify the change. The commission reported in 1993, at a time when 34,000 cases were being taken to the Crown Court as a result of election. That number has been reduced to 18,000. The reasons are the introduction of "plea before venue" and the new legislative requirement that lawyers and the courts must advise those who are accused that credit will be given for an early plea. For those reasons, we have seen an enormous reduction in cases going for trial.
It is true that some accused, usually on legal advice, will delay their guilty plea, but often for good reason. I do not want it to be imagined that it is only those who are abusing the system who do that. Sometimes, people want to see whether the system itself will review the case against them in the light of emerging evidence. Perhaps I may quote from a letter in The Times on 25th November from Lee Bridges, the respected academic and direct or of the Legal Research Institute. He says:It is true that many defendants who elect and subsequently plead guilty do so after the charges against them have been reduced. But there is no evidence that such reductions in charges are the result of 'pressure on the Crown', or are unjustified.In fact, both Home Office and independent research shows that black and Asian defendants not only have higher rates of acquittal but also have charges against them dropped or reduced more often than whites. This is consistent with a pattern of police discrimination in 'over-charging' ethnic minority suspects. When such defendants elect jury trial, this sets off a more thorough review of the evidence by the Crown, frequently leading to charges being changed.Denying defendants this right may well serve to reinforce police racism".We should also do well to remember that no fewer than 25 per cent of all either-way cases end up in terminations without a formal decision of the court, usually as a result of the prosecution dropping the charges. My noble and learned friend may say that, as a result of delay, sometimes witnesses do not turn up. But sometimes dishonest witnesses decide to retract 972 their statements, or want to avoid being cross-examined and found wanting. Sometimes, alibis are found, and that makes all the difference. Sometimes, when the CPS has had time to review the case, evidential issues come to light to show that the case could never succeed. So there are very good reasons why cases are dropped or original charges reduced due to over-charging. If we put the right of election for jury trial into that context, we know that the vast majority of defendants—24 out of 25—given the option, choose to have their case dealt with in a magistrates' court. So we are dealing with a very small proportion of cases.
It should be remembered that, in Scotland, where defendants do not have the right of election, the situation is different. It is not a case of an accused coming before a lay magistrate; the sheriff is a judge. It is also the case that, on conviction following summary trial, the sentencing powers of the sheriff are limited in similar ways to those of magistrates in England and Wales. I make that point because the Home Secretary has maintained that the sheriff in Scotland has greater powers; for instance, the power to impose a three-year sentence. Perhaps I may inform my noble and learned friend the Attorney-General of what happens in Scotland.
There are three modes of trial. There is summary trial before a sheriff (a judge), and his maximum powers are as follows. If my noble and learned friend wants confirmation, I refer him to Section 5 of the Criminal Procedure (Scotland) Act 1995. Summarily, the sheriff can impose a three-month sentence on any one complaint. If a person has previous convictions and it is a second or third offence of dishonesty or violence, the sheriff can impose a sentence of up to six months. In a very small number of cases, it is possible to impose a sentence of 12 months, but those cases are classified and are very limited. An example would be possession of a Class A drug. So there is a real limitation on the sheriffs powers at the summary level. One complaint is considered to be a set of continuous offences. So if a person breaks into a car, steals a radio and sells it, that is one complaint. The maximum power would be to impose a sentence of three months, or six months if the person has a previous conviction.
At a meeting yesterday, it was maintained that the powers include a sentence of three years. That is not true. The sheriff has that maximum power in a trial by jury. He then has the power to commit for sentencing to the High Court if he deems that his maximum power to impose a three-year sentence is not enough. Then a High Court in the Scottish courts will sentence. That tells us that in the summary jurisdiction there is a limit on the powers of the sheriff, which is not the case here. Magistrates would hear such cases and then commit for sentence to the Crown Court; so there is not even that matter of principle: that, in taking away this right, at least it is not dealing with sentencing of a very high level and there is no significant risk in terms of liberty to the accused. It is a different system, and it really is invidious to make comparisons. There are issues here which need to be untangled. I think there has been a rush to this piece of legislation. That has been unfortunate.
973 What about the manipulative defendant? If anything, the Government's proposals, if implemented, will give manipulative defendants greater opportunities to play the system than they have at present. The defendant will first be able to advance his arguments in the magistrates' court as to why he should be tried in the Crown Court. If the magistrates decide against him, he will go up to the Crown Court on appeal, and if the appeal fails, the case will go back to the magistrates' court to be scheduled for trial. The defendant would then make an application saying, "I don't want the original magistrates who heard my case because they will know about my convictions". Then you would have the problem which always exists in a magistrates' court on a trial lasting more than one day. I refer to the fact that getting people who may be bank managers, teachers and so on to come back again a month later for the next stage of the hearing, or the month after that, is always very difficult. One will certainly see delays and "spinning out" here.
On conviction, the defendant could again appeal to the Crown Court for a rehearing of the case. I really cannot imagine how you would begin to explain the yo-yo type of procedure to the general public as making sense or being an improvement. I ask your Lordships to forgive me for the time I am taking, but I want to emphasise the detail because it is in the detail that one can see the folly of this.
In my view, the most rational way of dealing with a manipulative defendant is to get a case before the Crown Court as quickly as possible. If convicted, he should be punished in line with the fullest range of penalties available under the law, taking into account the fact that he chose to avoid having the case dealt with under summary jurisdiction. This can be best achieved by sending the case to the Crown Court, whether by way of a magistrate's direction or a defendant's election, as quickly as possible. It may even be possible, if the procedures for indictable-only cases going directly to the Crown Court prove to be successful, for such procedures to be extended to these both-ways cases. I really feel that my noble and learned friend the Attorney-General must look at this again.
Finally, on the issue of race, it will be argued that the Home Office's research into sentencing—and indeed into many areas—shows that black people fare no differently from white people. Recently this was called into question. Work has recently been conducted by the Commission for Racial Equality on whether there is any discrimination against Irish people. This relates to the aftermath of a long period during which, as we know, in Northern Ireland there have been acts of terrorism. It was therefore felt that Irish people, particularly in the major cities, may have experienced discrimination. It was found that they were indeed experiencing discrimination in the courts. Certainly, they have the perception that they have experienced discrimination in the courts. A piece of research was presented at a recent conference, and if Irish people are taken out of the white component, and white people are compared with black, it will be found that there is a very real distinction between the way in which white 974 people and black people are dealt with in the courts at many different stages. I put that point to my noble and learned friends. I hope that they will look into this question because I feel that they are relying on very unsatisfactory research. I hope that these submissions will be accepted in the spirit in which they are intended. I have been able to draw on the assistance of Professor Lee Bridges in drawing up these submissions to this House.
I do not regard myself, and I do not think that many people would regard me, as being among the forces of conservatism or as one who stands out against reform and modernisation of the legal system. I have been one of the voices most active in calling for reform of the legal system. However, I also think that it is possible to pursue reform and to achieve objectives such as efficiency in ways which are more in tune with our values and with the practical working of the system.
I heard the noble Lord, Lord Alexander, say that on occasion he has known what it is to be lonely on his Benches. I too have on occasion known what it is to feel lonely on one's own Benches; but happily it has not happened to me too often and, happily, it is not happening on this issue. There are many in the ranks of Labour Peers who are very unsettled by this Bill. There are many people in the Labour Party who are profoundly troubled and shocked by this Bill. Indeed, there are many who are sick at heart at the idea that these changes will be introduced. So I say to my noble and learned friend: think again.
I suspect that the true reason for this Bill is that the Human Rights Act is due to come into play next year and it is feared that it may take up quite a bit of time in the Crown Court. Therefore, the Government are trying to clear the way so that they are not criticised for having introduced that Act.
No one could ever think that an Act incorporating human rights provisions in this country was folly: no one with a good heart. But to start doing this in order to achieve that end is wholly inappropriate, and so I say: do think again and withdraw this Bill.
§ 7.56 p.m.
§ Baroness Elles
My Lords, I would hope that all noble Lords and the noble Baroness who has just spoken would not regard this as a party political debate at all. Regardless of party politics, I think that the majority in your Lordships' House tonight agree that it is very difficult to find anything good to say about the Bill which is at present before us. The volte face, for instance, of the Home Secretary concerning this Bill is in direct contrast to his views which were stated when in Opposition. The noble and learned Lord, Lord Simon of Glaisdale, has indeed already quoted the comment made on 23rd February 1997, when shadow Home Secretary: the proposal was described as wrong, short-sighted and likely to prove ineffective.
Indeed, this is what I think the majority of your Lordships are saying tonight. That opinion is held not only by my colleagues on this side of the House but also by members of the Law Society, the Bar Council, 975 Liberty, Justice, the Society of Black Lawyers and others, including, I understand, the Director of Public Prosecutions. It is indeed surprising that a government which claims to be giving more freedom to the individual, less bureaucracy and less intolerance, is clamping down on a defendant's right to choose the form of trial to which he or she might be entitled under the current law, which might be helpful to his or her case: a right which has existed since 1855, as many speakers have said. That is nearly 150 years ago.
It is irrelevant to claim that other countries do not give defendants an equivalent right. Those countries do not have lay magistrates to take such decisions: they are all taken by professional lawyers. That, I think, is the distinction between England and Wales and Scotland and other countries outside the traditional area of England and Wales. They do not have the lay magistrates that we have here. In Scotland, for instance, as the noble Baroness said, a decision concerning the holding of the trial is taken either by a judge or by a sheriff and a jury. Before any change might be made to deprive the defendant of his right to select a trial by jury, the lower or magistrates' court should also have stipendiary magistrates—that is, legally qualified professionals, conversant with aspects of law on which lay magistrates would almost certainly have to rely on their clerks to the court. Lay magistrates do not have, and cannot be expected to have, the experience and detailed knowledge of the judges of the Crown Courts. Figures for 1998, some of which have been mentioned by noble Lords, show, for example, that 18,500 defendants elected trial by jury, but over 47,000 cases were directed to the Crown Courts by magistrates. That comes from Hansard, Commons, for 22nd June 1999.
It is understandable that a sum of approximately £70 million might be saved annually by the hearing of more cases in the magistrates' courts. They will be heard by voluntary lay magistrates rather than by judges in the Crown Courts, but that will not ensure that justice and fairness are guaranteed. There is no guarantee that the defendants will be given the rights that they receive in the Crown Courts. Cost-cutting should he no grounds for denial of the right to jury trial, held to be a cornerstone of the British legal system.
The views expressed by Courtenay Griffiths QC of the Society of Black Lawyers also confirm the opposition to removing the right of defendants to make a choice in either-way cases. M any noble Lords have mentioned the problem for black citizens who come before the courts. Courtenay Griffiths said:A fair hearing from a randomly selected panel of jurors greatly enhances the confidence that minority communities have in the justice system".We cannot deny that and we should riot close our eyes to that statement. It gives important backing to the position of black citizens who prefer to go to trial by a court rather than come before the magistrates.
As I understand it, lay magistrates have been appointed since the 12th century. There has been some discussion as to the date, but my latest information is that they existed in the late 12th century, starting in 976 about 1150 or 1160. Through the years, they have performed, and still perform, an admirable and important role in the administration of justice. It may be, however, that that role should be closely examined before new powers and duties such as those in the Bill before your Lordships today are imposed upon them and before restrictions are imposed on defendants seeking a fair and just trial.
§ 8.2 p.m.
§ Lord Phillips of Sudbury
My Lords, at this stage of the debate I am sure it would be a mercy if I confine myself to what little bits of flesh remain on the bones of this great subject. Before I say my few words, I wish to make clear that I entirely share the sentiments of my noble colleagues in this House who have made plain their admiration for the lay magistracy. It seems to me to be the heart and backbone of our legal system. The fact that it deals with 95 per cent of all criminal cases is a measure of the huge importance of the lay magistracy. The fact that they are of the people, by the people and for the people gives them an importance and status which is not shared by other parts of the judicial system. Nothing I say tonight can be taken as reflecting ill on them.
Nevertheless, justice depends on public confidence. As many have said already tonight, there is a clear unarguable fact in all this. People choose trial by jury in either-way cases in large numbers, even though the rogues among them know full well that the sentences which would be handed out by a judge at the Crown Court will be two to three times heavier than the sentence of justices. The reason people choose trial by jury is that they have more confidence in it than in any other form of trial. It is as simple as that. It has nothing to do with whether magistrates are good or bad, it is that people believe, rightly or wrongly, whether through prejudice or enlightenment, that trial by jury is the best trial.
That public confidence and perception is made up partly of reason, partly of fact, partly of experience and partly of belief, or, some would say, prejudice. The groups who cling most strongly to that belief, who place most importance on the prospect of trial by jury are those among the poor, the socially excluded, the minority groups. They, in particular, have a perception of jury trial which makes them cling to it.
Those marginalised groups are the same groups as those from which are drawn a totally disproportionate number of accused people. They are the ones clogging our courts, the people causing trouble on our streets—not exclusively, but disproportionately. In anything that the Government seek to do, to ignore the issue of public confidence, particularly in those groups, is wholly self-defeating.
The question of reputation is of great importance. The noble and learned Lord the Attorney-General made plain that his change of heart in all this partly hinged around the fact that there would be an appeal against a refusal by magistrates of trial by jury. There has been introduced into the factors which magistrates must take into account the factor of reputation. I say 977 to the Government that there is subjective or private reputation and objective or public reputation. I believe that many people, precisely from the groups I mentioned, have no objective or public reputation. They are nobodies, they feel nobodies, they have little self-esteem, they cut no ice in their communities.
The distinction magistrates will be called upon to make in terms of reputation, between one person before them and another, is invidious in the extreme. The noble and learned Lord, Lord Mayhew of Twysden, put it eloquently. He gave the case of his wife's inadvertence in rushing out of the supermarket and the assumption made that had she been charged she would certainly have gone for a jury trial. If under the new aegis she had gone to the magistrates and sought trial by jury and they had been considering the question of reputation, she would have gone through like a dose of salts. They would say that there was no one who had more to lose with reputation than the wife of a former Attorney-General, now a Peer of the realm.
I am sure the noble and learned Lord, Lord Mayhew, will not misunderstand me if I say that that would be complete eyewash, complete "cock", to use a good old Anglo-Saxon word. In my view, Lady Mayhew has no more right to trial by jury for shoplifting than her charlady or, even worse, the rogue and vagabond who steals apples from her apple tree. Most speakers have expressed the same view. I have absolutely no confidence in the reputation let-out.
Then there is the issue of equality before the law. We all mouth "equality before the law" endlessly. We Brits claim it as one of the great shining lights of our culture. Maybe. It is difficult to achieve equality before the law, and the noble and learned Lord the Attorney-General has the merit in this debate of knowing what he is talking about, having had a career at the Bar. It is difficult to achieve equality before the law, and most difficult with the groups I have enumerated: the poor, the socially excluded and the minorities. I shall not spend time tonight explaining why that is so; noble Lords all know that it is so. They know the problems of lack of articulateness, lack of conviction, even with their own solicitors and counsel.
I repeat; unless the system of law in this country protects those people, it will be a bad day for justice overall. To the extent to which those groups lose confidence in a system in which they already have little confidence, the problems of crime, disorder and anti-social behaviour will, in the long term, insidiously, immeasurably increase and grow.
I turn finally to abuse of process. The Government have laid great stress on the degree to which rogues exploit the system by using the either way option that currently prevails. I believe that the choice is a simple one. We must decide what is more important: to ensure that innocent men and women are not convicted or that guilty ones are. Traditionally, we have made up our minds with absolute clarity that by far the more important aim is not to convict innocent people, but the price that is attached to that is that rogues will 978 exploit the very bias that we have built into the judicial system. They will be good at that—and they will do it for ever.
If we try to reduce the scope for potential abuse by amending the system of justice we shall end up reducing justice itself. We cannot have it both ways. If some noble Lords in this House become fed up with lawyers telling them that that is so, I believe that experience of the court system is required to understand the extent to which that crucial choice must be made. If one tailors justice to the need to frustrate the rogue one will end up with no justice.
With those few remarks—eschewing many others that I would have wished to make but knowing that they have been made eloquently by others—I revert to an earlier observation by my noble friend Lord Hutchinson. Quoting Lord Devlin, he said that the jury system was the lamp by which liberty lived. One must not always regard this as a dry, managerial measure. Justice is about feelings, convictions and beliefs. In this country our belief in the jury system is well placed. It is useless to compare us with other countries with different cultures, histories and systems—even the Scots over the Border. Clearly, in proposing this amendment the onus is on the Government. That onus is not the civil but criminal test. They must prove their case beyond reasonable doubt. I put it to the House that they have manifestly failed to do that and have not even satisfied the civil test based on the balance of probabilities.
§ 8.12 p.m.
§ Earl Russell
My Lords, I never admire the noble and learned Lord, Lord Williams of Mostyn, more than when I hear him argue a bad case. He did so with great gentleness, excellent good manners and consummate skill. He put to us the proposition that this is an issue in which the wider community has an interest. I am no lawyer and speak as a member of that wider community. I therefore believe that that is the test to which I should attempt to rise.
When you hear a number of people speak in favour of this Bill, you form the suspicion that they believe it is in the wider public interest because it is not in the interest of lawyers. The noble and learned Lord himself must have been aware that he left a subliminal scintilla of thought in our minds that the wider public interest was in some way opposed to the interest of lawyers. This is where I believe we need to do a little more thinking. To my mind at least there is a presumption—rebuttable no doubt but still a presumption—that professions usually know more about how to run their own affairs than anyone else. I say "usually", but they do know a good deal more about it than other people. Even if they are in some respects wrong one cannot usually act with consummate skill when acting against one's conscience. If one believes that what one is doing is wrong, even if one is mistaken in that belief, one will tend to do it worse.
But when one comes to consider vested interests, it is not only lawyers who have a vested interest. Governments in all centuries have loved to speak as if 979 they spoke for the public interest and no one else did. But government also have a vested interest. Government has a collective will, culture and outlook which may on occasion operate quite as much against the public interest as the culture of any profession. That thought came into my mind when I heard the noble and learned Lord say that the Bill was intended to make the courts operate efficiently. I have been in a public service which has been made to operate efficiently. Here I declare an interest. When it comes to "work efficiently", to make the division according to Whitehall-speak, it ceases to operate effectively, because of course in Whitehall-speak these are two quite different things.
For some reason in any century people have tended to love the law and hate the lawyers. As a psychological phenomenon it is of great interest and needs more learned academic study than it has yet received. I believe that this reveals two points: first, that people cannot accept the idea that justice, which they believe to be a right, must be paid for. It has a price no matter who pays it. I believe that that is a thought which people resist. Secondly, a great many people cannot accept the idea that justice may, and very often does, hang on a technicality. So I believe we should forget any thought of welcoming the Bill because the lawyers do not like it. On the whole, they are more self-critical as a profession than any other with which I have dealt while I have been here, and for that I believe that they deserve respect.
However, as a member of the public I have interests in other aspects of the criminal justice system. I like it to be cheaper and quicker whenever possible but, when I wonder whether it will be, I find the arguments of the noble Lord, Lord Cope of Berkeley, extremely persuasive. But it matters a great deal more to me to consider whether judgments reached by the criminal justice system are likely to be right; even more, whether members of the public are going to believe that those judgments are like y to be right. The belief of the public that people condemned in the courts are, or are likely to be, justly condemned is perhaps the most important asset that a criminal justice system can have.
In 1637, the Earl of Strafford, watching people feting Prynne round the pillory, remarked:A prince that loseth the force and example of his punishments loseth withal the greatest part of his dominion".So if this change were to have the effect of giving people less confidence in the verdicts of the criminal justice system I do not believe that that would be a good thing.
We are told that acquittals in magistrates' courts and Crown Courts run at 25 per cent and 40 per cent respectively. I do not know which if either of those figures is nearer to the truth, and I shall not make an argument on that basis. The argument on which I rest is that I know which mistake I would rather make.
I must confess that, like other noble Lords, I was a little worried about the way in which the noble and learned Lord talked about a man with eight previous convictions for shop-lifting and assumed that he must be abusing the system if he elected trial by jury. At least 980 the noble and learned Lord gave that impression. If the noble and learned Lord wishes to say that that was unintended I shall be delighted to take his intervention and have it in the record.
§ Lord Williams of Mostyn
My Lords, the point that one sought to make was that one had to look at the circumstances of each individual. I do not subscribe to the view that someone who is of perfectly clean character has precisely the same reputation as someone with eight previous convictions.
§ Earl Russell
My Lords, I am most grateful for that useful clarification. The point of reputation is one of the worrying matters on which other noble Lords have touched. Obviously, a man without a reputation is as likely—one may say more likely—to be wrongly accused as anybody else. The fact that people with good reputations have a form of trial with a more substantial chance of acquittal than those who do not is in terms of both class and race patently discriminatory. I shall not develop the point about race because my noble friend Lord Dholakia intends to deal with it at some length. I have heard a lot of the evidence on which he intends to rely and I find it quite painfully persuasive.
I am not a human rights law specialist. I do not know what line the ECHR will take about the Bill. But were it to find it to be unjustified, I suspect that it is precisely that point of discrimination on which it would find.
The noble Lord, Lord Mackenzie of Framwellgate, suggested that there was no danger here because other restrictions of trial by jury have not met challenge. But they did not have this clearly discriminatory element. That perturbs me considerably. However, much more important is the significance for the concept of the active citizen of the concept of having a jury. The noble Lord, Lord Mackenzie of Framwellgate, talked slightly dismissively about people having to give up their valuable time in order to take part in the criminal justice system. But of course it is precisely by giving up one's valuable time that one feels a sense of ownership in one's own criminal justice system.
The two peculiarities of England over the centuries were, first, a very early centralised monarchy; and, secondly, an exceptionally strong tradition of local self government—as F W Maitland felicitously put it: self government at the king's command. It is the marriage of those two traditions which has made our government capable of working. It is in that system of self government by the king's command that the jury system has a particular importance.
I have heard noble and learned Lords in this Chamber complaining about the need to protect the reputation of the courts, most particularly from the interventions of tabloid newspapers. You do not know anything about a court case if you have merely read the press reports. But if you have sat through the whole trial as a jury member then you do know something about it. It means that members of the public have ownership of the verdict. And, what is more, because they are anonymous no tabloid can effectively attack 981 them. That is a very precious asset. It is not lightly to be diminished—not even for a considerable saving of money or time. As the reputation of the criminal justice system declines, as we feel less ownership of the system, that asset will waste.
The noble Lord, Lord Bassam of Brighton, answered a question last week about public participation in the electoral system. The problem of dwindling public participation stretches wider than just the issue of criminal justice or voting. In other issues, such as Neighbourhood Watch, the Government have been particularly concerned to get people back into the process of being involved in, and feeling a sense of ownership of, their own political and judicial process. The jury is one part of that process which is working. It would be a shame to diminish that; to let people think that the criminal justice system is "them" when they could be thinking that it is "us".
I shall not follow the example of a former Archbishop of Canterbury speaking in this House in 1610 who moved that the Bill be committed to the pit of hell. I am a great deal more charitable than that. But were the Bill to be committed to the waters of Lethe, I should be very much relieved.
§ 8.23 p.m.
§ Lord Warner
My Lords, I support the changes in the Bill. I listened with some fascination to the confessions of my noble friend Lady Kennedy about her close relationship with the Home Secretary. I, too, must confess that I have known the Home Secretary for 25 years and have worked as his policy adviser. So I may well be described as one of these trimmers and bad company that the Home Secretary has fallen into. However, the Home Secretary is a Fellow of the Royal Statistical Society and he has this extraordinarily dangerous trait among politicians of being data rational. Part of the difficulties may be that we are introducing a few facts. I know that it is rather boring and mundane, and has little to do with the romantic sweep of some of the speeches made today. But it is an uncomfortable fact that we have to look at a few of the facts.
In the past Session we debated the Youth Justice and Criminal Evidence Bill, another part of the rebalancing of the criminal justice system of which the current Bill is a part. There were speeches from many Members of this House who had spent their lives working in the criminal justice system. The feature of many of those speeches was the number of extremely elegant and splendid arguments advanced for doing absolutely nothing to the processes and procedures of that system.
I always listen with great interest to noble and learned Lords with their extensive experience of the criminal justice system and the way they love to debate the detail of that system. But the argument usually ends up at the same place: that we should reject change and maintain the status quo. Somehow experienced practitioners often convey the sense that they are the custodians of some secret garden into which the laity— 982 I freely confess that I am a member of it—peep from time to time. It is often regarded as rather vulgar to talk about money, costs and resources. There seems to be some underlying assumption that unlike other equally important public services like healthcare and education it is wrong to question whether we get good value for public money from the £11 to £12 billion spent each year on criminal justice, one of the fastest rising areas of public expenditure in the past decade.
I note that in many of our debates on criminal justice legislation there is much preoccupation with the rights of defendants; and today is no exception. I suggest that equal weight is too rarely given to the position of victims, witnesses and the public. If defendants continue with their present rights to choose the court in which they are tried, they can continue to opt for a court where the time it takes to bring a case to court means more delay and waiting for victims and witnesses, and higher costs to the public purse.
All that may well be justified when the charge faced by the defendant is a very serious one. However, those traditional arguments about being able to elect for jury trial seem to me far weaker when the charge could be, and currently usually is, tried now in magistrates' courts.
Much rhetoric has been deployed in the debate about fundamental liberties being eroded, reductions in fundamental rights, and so on. The reality of what we are discussing is far more mundane than some of its critics would have us believe. I shall not go into the fact that until 1855 defendants had no ability to choose to be tried by jury. Since then we have seen many reclassifications of offences.
§ The Earl of Onslow
My Lords, if the noble Lord will give way, defendants had the right and had to be tried by jury until 1855. An Act was passed allowing trial by magistrates' courts. It is that way round, not the way the noble Lord put it.
§ Lord Warner
My Lords, in my hurry I misrepresented the position. Perhaps I may continue. Since then there have been many reclassifications of offences which have restricted the area of choice to elect for venue and trial by jury. We have already heard about Scotland. The facts of life are that in Scotland the accused has never had the right to choose the court where the case is tried. Today the reality is that 97 per cent of all the 1.8 million criminal cases dealt with each year are tried in magistrates' courts.
We are not debating some great fundamental centuries-old right today. As far as I can judge, we are discussing whether there should be a further adjustment to the position of the 18,000 or so people each year charged with either-way offences who elect for trial by jury.
I suggest that the Government's proposal is modest. A great deal of sport has been had at the expense of the Attorney-General about so-called changes of position. I believe that the Attorney-General has been extraordinarily consistent. I have heard my noble and learned friend argue consistently within government 983 for the appeal mechanism which he has described in much detail as a robust safeguard for people under these changes. I hope that he will not charge me under the Official Secrets Act for revealing that.
I want briefly to reiterate some of the fact about the 18,000-odd cases a year in which the accused elects for jury trial in either-way cases. A large sample of 1998 cases strongly suggests that in about 60 per cent the accused pleads guilty before the case comes to trial—
§ Lord Simon of Glaisdale
My Lords, I thank the noble Lord for giving way. More often than not, the accused pleads guilty to a lesser offence. It is wrong to suggest that he pleads guilty to the offence for which he was committed.
§ Lord Warner
My Lords, I am grateful to the noble and learned Lord. If he had waited a little longer, I would soon have come to that point. In some of the cases, there is a strong suspicion that the accused elected for trial by jury so that their lawyers had time to secure lesser charges to which they could plead guilty—
§ Lord Warner
Well, come on. They could then gain a more lenient sentence. Nine out of 10 of the convicted people who elected for trial at Crown Court had previous convictions, as my noble and learned friend the Attorney-General—
§ Lord Thomas of Gresford
My Lord, does not the noble Lord appreciate that often there is overcharging, particularly with the ethnic minorities in this country? People are charged with offences which are way above the conduct they have committed. What happens at the Crown Court is sensible discussion and negotiation. A basis for plea is worked out between the prosecution and the defence which enables the judge to pass a proper sentence for that which the defendant has done. I wonder whether the noble Lord has any experience at all of the courts since he talks so freely about our speaking in rhetorical terms about jobs we have done for 30 and 40 years.
§ Lord Warner
My Lords, I am grateful to the noble Lord. I shall turn later to the issue of defendants from the ethnic minorities. He expressed more elegantly some of the facts that I was putting more crudely. I want to put on the record that nine out of 10 convicted people who elected for trial at the Crown Court had previous convictions. That is a fact. It is not a matter of opinion; it is a fact. One third of them had more than 10 convictions.
We are talking about only 15 per cent of those who elected for trial by jury being acquitted. That is fewer than 3,000 a year. I accept that there may have been discussions which led to a lesser charge and a plea of guilty being secured. That does not alter my argument that there was a case for electing for trial by jury in 984 order to secure that outcome. It seems that the noble Lord acknowledges that in his daily practice that is a feature of life in the criminal court.
§ Lord Thomas of Gresford
My Lords, it is a feature in the Crown Court; it is not a feature in the magistrates' court. That is the point. There are experienced counsel who can arrive at a proper conclusion.
§ Lord Warner
My Lords, I do not accept that the noble Lord has made a point which destroys the factual argument I have tried to put forward. Perhaps I may continue to run the argument. Many of us sat patiently while the noble Lord expressed his arguments and did not intervene quite so often. We are not in court now.
There may be some who believe that magistrates may become power-crazed under these measures and keep more and more inappropriate cases to themselves. The facts are that in 1998 magistrates directed 47,000 either-way cases to the Crown Courts, far more than elected for trial by jury. Just in case some magistrates get delusions of grandeur, the Attorney-General has explained the appeal mechanisms that will be put in place.
I want to turn to the question of whether people from ethnic minorities—
§ Baroness Kennedy of The Shaws
My Lords, I wonder whether I may ask the policy adviser to the Home Secretary: were you one of the people who gave this advice to the Home Secretary? Was this your idea? Am I allowed to ask that question?
§ Lord Warner
My Lords, I might elect to answer it, but I suggest that I am entitled to behave in exactly the same way as does the noble Baroness, Lady Kennedy, and many noble Lords in protecting client confidentiality in these matters.
I want to turn to the question of whether defendants from ethnic minorities will be disadvantaged under the legislation. I must confess that this is one aspect of the proposed change that has troubled me. I was concerned that its possible impact on defendants from ethnic minorities might cause me some problems of conscience in supporting the Bill. People whose judgment I respect have expressed concerns to me.
However, I have looked carefully into the aspect and I can find no evidence that black defendants get a. raw deal in magistrates' courts. I do not believe that many of the arguments about whether the police produce 985 more charges in relation to ethnic minorities is germane to the Bill. The point at issue is whether they would get a more raw deal in magistrates' courts. I suggest that there is no evidence that black and white male defendants are sentenced there any differently and there is good evidence from mid-1990s Home Office research to show that.
§ Baroness Kennedy of The Shaws
My Lords, I am sorry to intervene. Has the noble Lord looked at the question of whether the presence of white Irish accused might be distorting those figures?
§ Lord Warner
My Lords, I am well aware of that evidence, but I believe that there is an excitableness about many Members of this House who come from a criminal law background. It would be nice if one could continue the flow of the argument for a little while as some of us who do not come from that elegant background have sat patiently and listened to many of their arguments when we have not agreed with them.
I am aware of the evidence that the noble Baroness mentioned. I listened carefully to her speech. However, if I may be allowed to continue, I was about to say that I believe that the House will find that new Home Office research to be published soon will show that in magistrates' courts there is a higher conviction rate among white defendants than among those from ethnic minorities. Another so far unpublished study will show that the acquittal rate for black defendants is higher in magistrates' courts than in Crown Courts.
I have not been able to find a shred of evidence that if more either-way cases were tried in magistrates' courts as a result of the Bill, defendants from ethnic minorities would be disadvantaged. I suggest that the evidence points in the other direction. It would be helpful if my noble friends on the Front Bench could try to make some of that evidence more readily available so that we do not have the kind of scaremongering arguments about the Bill damaging the position of people from ethnic minorities if more cases were tried in magistrates' courts.
I shall not weary the House with a list of those who have spoken in support of changes akin to the proposals in the Bill. However, I want to mention the Lord Chief Justice and Sir lain Glidewell in his review of the CPS. They are not viewpoints which, in my short time here, I have seen noble Lords lightly cast aside. It is worth recalling that Sir lain Glidewell confessed that he had changed his mind on the issue after studying it further and looking at all the facts.
My right honourable friend the Home Secretary, in his characteristically honest way, has acknowledged frankly that he has done the same. He is entitled to be congratulated on that, as is Sir Iain Glidewell, who chaired the review into the CPS. I should encourage many noble Lords who have spoken today with great flair, energy and conviction, to show some of the same maturity as the Home Secretary and Sir lain; to look at the facts a little more dispassionately; and to set aside some of the institutionalised behaviour so widely demonstrated today.
§ 8.39 p.m.
§ The Earl of Onslow
My Lords, if I were the noble and learned Lord, Lord Williams of Mostyn, I should be rather depressed by the quality of support I had had from my own Back Benches.
The noble Lord, Lord Warner, was bowled just about the fastest ball that has ever been bowled in this House, by the noble Baroness, Lady Kennedy. We have just introduced into the criminal law the concept that if someone refuses to give evidence, the judge may draw that to the attention of the jury to extract what conclusion they can from it. It seems to me that we should do well to draw conclusions from the eloquent silence of the noble Lord, Lord Warner, as opposed to his ineloquent speech.
§ Lord Warner
My Lords, I must put my position quite clearly. I refuse to say what advice I may or may not have given to the Home Secretary as a policy adviser, which is quite proper for me to do. The noble Earl is not in any position to draw the inference which he has drawn. I am not going to expand any further, but I believe that he is misleading the House by drawing the inference which he has drawn from my silence.
§ The Earl of Onslow
My Lords, I am not misleading the House by drawing that inference; I am simply drawing that inference. I am sorry, but that is the inference which I have drawn, and I believe that other noble Lords may have drawn exactly the same inference. It is interesting also that the noble Lord said, "I am data rational". I suggest that data rationality has no soul. Justice has soul. It is quintessential to this country.
During a Division in March 1994 I was trooping through one of the Lobbies—I cannot remember which—to vote against my right honourable friend Mr Michael Howard. I believed that he was introducing illiberal measures into the Criminal Justice and Public Order Bill, and I still believe that he was doing so. Mr Straw spoke eloquently against some of those measures, but then changed his mind. The noble and learned Lord, Lord Williams, and I came, I believe, through the same Lobby, and I said to him, "Do you know, whoever wins the next election, Michael Howard's soulmate will still be Home Secretary?" Unfortunately, that has happened.
I notice also that in the Bill, under the heading, "European Convention on Human Rights", the noble Lord, Lord Bassam of Brighton, has made the following statement:In my view the provisions of the Criminal Justice (Mode of Trial) Bill [H.L.] are compatible with the Convention rights".All I can say to that is, "Oh does he?" Taking away the right to trial by jury is not necessarily compatible with the concept of human rights.
I have immense respect and a really genuine liking for the noble and learned Lord, Lord Williams of Mostyn. I have seen him do something today which I believed was almost impossible. He made a speech which could be classed as an insincere version of 987 Michael Howard. I know that the noble and learned Lord is a liberal and that he likes justice. I have heard him wax serious on the subject. What on earth has he got into with this Bill? It is taking away ancient rights from a system of justice which has done nothing but improve since Ethelred the Unready founded the jury system before the Conquest. Assizes followed; then Magna Carta, habeas corpus and quo warranto—that marvellous sweep of English liberty and justice for which we are deeply, emotionally and permanently grateful and which we should lay down our lives to protect, as people did from 1939 to 1945, because it is of such grandeur.
The Bill has been demonstrated by some of the best legal minds in the country to be a shabby, grubby reduction of the liberty of the subject. The idea that the noble and learned Lord, Lord Williams of Mostyn, should take away what Ethelred gave to us sticks in the craw.
§ 8.44 p.m.
Lord Carlile of Berriew
My Lords, I hope that your Lordships will allow me the indulgence of the four minutes available, as I understand under the gap convention. As so little time is available, I shall not fall into the lawyer's habit of repeating of what other lawyers have already said.
Nor shall I criticise the noble and learned Lord the Attorney-General for changing his mind. I have known the noble and learned Lord for long enough to be able to say with admiration that, as one would expect from Ffynnongroen's most distinguished son, he can change his mind with exquisite skill and estimable frequency without for one moment needing to boost his credibility by donning the spangled pants into which my noble friend Lord Thomas tried to put him.
The right to trial by jury for specific offences is not, in my view, fixed in tablets of stone. I am genuinely open minded as to whether there might be a need for change. Having said that, in order to be persuaded, in common with other commentators, should require evidence beyond reasonable doubt of three matters. First, I seek proof that the jury process does not provide a fairer trial than the magistrates' court. I asked a question of the noble Lord, Lord Mackenzie of Framwellgate. With great respect to the noble Lord, I believe that he knew the answer. A policeman who is putting forward a false case would far rather put that case forward to a bench of magistrates than to a jury. I suggest that that is evidence that the jury process is fairer than the magistrates' court process.
It is astonishing that the Bill has been presented to the House without any evidence or even any research whatever, save for a little which is founded on anecdote. I say to the noble Lord, Lord Warner, that as a policy adviser sitting in the Home Office he is of course entitled to keep his own counsel. However, he has chosen to come to this House this evening. Having chosen to expose himself in debate in this House, he should expose the whole of himself, warts and all. We should know and see the full monty in response to the noble Baroness's question.
988 Secondly, I require proof beyond reasonable doubt that the change commands public confidence. The analogy of the noble and learned Lord the Attorney-General with the breathalyser provisions is of course completely specious for at least two reasons. First, when the right of trial by jury for Welsh farmers and others charged with breathalyser offences was removed, something which was originally regarded as a serious interference with personal liberty had come to gain wide public acceptance. Secondly, breathalyser offences required no proof of criminal intent, which is classically a jury issue. Therefore it is a quite different set of circumstances and a totally false analogy.
There is absolutely no evidence of public acceptance of the proposals. Such evidence as can be drawn from the press and the academic world is almost all to the contrary. Apparently the noble Lord, Lord Warner, is able to produce something from somewhere in a cupboard, but it certainly has not filtered into the minds of Members of this House.
A third point should be addressed. When the Government talk of savings of £105 million, it would be nice to know whether they have built in the cost of the extra miscarriages of justice. My time is up; many more points could be added. But, without proof from the Government that this is a good measure, we should not accept it.
§ 8.49 p.m.
§ Lord Dholakia
My Lords, there has rarely been a difference of opinion between the Attorney-General and myself on matters relating to the criminal justice system. I have followed his distinguished career with great interest, from his early days on the Bar Council. If on this occasion I disagree with him, please remember that he has changed his mind, albeit with the provision for an appeal mechanism, while I have maintained my position.
We have heard many important speeches for which your Lordships' House is the richer. There has been a tendency to complain because lawyers have dominated the debate. We should be grateful to them because no one can speak with greater authority than lawyers because they have day-to-day experience of what happens in our courts. On that point I fully endorse the views expressed by the noble Earl, Lord Russell.
I thank the Attorney-General for facilitating the meeting yesterday with the Home Secretary.
Since 1974 the mode of trial issue has surfaced on a number of occasions in Parliament. The idea has been dropped because it has failed to command support. Today's debate is no exception. Speech after speech has confirmed that there is an informed opinion in your Lordships' House that does not accept the Government's case.
I endorse what the noble Baroness, Lady Elles, said. Quite rightly, she cited a number of warnings. The Law Society, the Bar Council, the Black Lawyer's Association, Liberty, Justice, the Legal Action Group have all expressed concern about the diminution of the defendant's rights in certain cases. When the practitioners protest we should listen with great care.
989 The reality of the Government's proposal is that about 18,000 defendants a year—there is no dispute about that figure—would lose their right to a trial by jury. The Government's decision requires a number of clarifications. Unlike many, I do not object to the fact that the Home Secretary, when in opposition, said that such a reform was short-sighted and likely to prove ineffective. He is entitled to change his mind. However, are we not entitled to ask him whether he is driven by financial considerations and whether he has taken into account matters of civil liberties and the rights of individuals which have been established since 1855? Speaker after speaker has posed those particular questions. I am sure that the Attorney-General will want to deal with them. If money is the basis of our system of justice, that strikes at the heart of our democratic process.
The argument that no other country has a system similar to that in England and Wales, where in certain cases defendants can elect to be tried by a jury, does not mean that it is correct to remove that right. Scotland was cited as an example of a country where there is no ability to elect to go to trial, but the prosecution decides the venue. I am grateful to the noble Baroness, Lady Kennedy, for her contribution on that point.
I go a stage further. In Scotland the choice is between summary trial before a professional judge—the sheriff—sitting without a jury, while here the vast majority of summary trials are before lay magistrates. Also in Scotland, once a decision has been made to try a case summarily, there are strict limits on the length of sentence that can be imposed. The proposal here is to remove the right of election from defendants, but for magistrates to retain their power to commit certain defendants, once convicted, to the Crown Court where they can receive longer sentences. Recent figures show a marked increase in the use of that power by magistrates. That is unacceptable.
The argument is advanced that the change is designed to end the abuse of the system which leads to delay, a waste of resources and a prolonged wait for justice. The number of cases in which the defendants elect to have trial by jury has been falling. We have been told that again and again. That has happened over the past 10 years. It is not a growing problem. Of course, there are cases where the system is abused, but that does not mean that the right should be removed from others. That is the wrong way to go about it.
There are cases which affect the livelihood, respect and dignity of individuals. We have heard some good personal examples of such matters. How will the new appeal system work in cases where the decision of the magistrates' court not to allow trial by jury is contested? We are now told that legal aid will be available for such an appeal. Will the appeal system simply create a new bureaucratic process which will diminish the aim of simplifying the justice system? What costs will be involved in such an exercise? I can foresee 18,000 cases a year in which people could, effectively, appeal.
990 I have served as a magistrate for a long time. I have also been involved in the training of magistrates and I am still invited to contribute at training courses, particularly on issues relating to race and the courts. The noble Lord, Lord Mackenzie, stated, in effect, that my noble friend Lord Thomas of Gresford had been less than kind to magistrates. As a magistrate I was comfortable with what my noble friend had to say. However, there is a perception in the community—I speak as a magistrate and as a member of the Board of Visitors, having visited prisons again and again and met people who are serving sentences—that magistrates are more likely to believe police officers than defendants. I draw no analogy from the background of the noble Lord, who was a police officer.
The vast majority of defendants elect for trial in a magistrates' court. Nobody disputes that. I had hoped that the Government would produce evidence that the right of election for trial by jury is widely abused. It is evident that defendants and their legal advisers use the process selectively. Do we base our argument on people in prison on remand awaiting trial? What statistical information is available that the increase in the remand population is a direct result of mode of trial in either way offences? I have searched for information on that and I have found none.
Often the argument has been put forward by those who support the abolition of the right of election that the majority of those who exercise that right eventually plead guilty. Again, I have searched for statistical information on that point. Where is the evidence?
One matter that often puzzles me as a magistrate is that, despite our powers on sentencing, far more defendants—often unnecessarily—are sent to the Crown Court by magistrates than by way of defendants' elections. I am often surprised that in the majority of such cases the Crown Court ends up imposing a sentence that could have been imposed by the magistrates. Would it not be wise to carry out a proper study of that aspect before putting all the blame on the delays, the remands and the abuse often attributed to defendants?
§ Baroness Kennedy of The Shaws
My Lords, perhaps I may reassure the noble Lord that there is no research on that.
§ Lord Dholakia
My Lords, on a number of occasions I have worked with the noble Baroness and I am grateful for her comment on that point.
Yesterday the Home Secretary—as I understood him—suggested that research evidence is now available which demonstrates that there is no significant difference in the way in which black and white defendants are treated in the magistrates' courts. The Attorney-General sent me a briefing note on ethnic dimensions to mode of trial decisions, which I received this afternoon. I am sure that the noble Lord, Lord Warner, used that as a basis for his contribution when he said that he could see no difference. I am sure that the noble and learned Lord may be using the same document.
991 Let me deal with that matter. The study identified in that report caused me a considerable amount of anxiety. I am not satisfied that I can come to the same decision as the Home Secretary, for reasons I shall explain in a moment. But I was surprised to hear the noble Lord, Lord Warner, say that, as a member of the Royal Statistical Society, the Home Secretary has a better grasp of such figures. Let me take the House through the basis on which some of the information was used by the noble Lord.
The document says that currently pilots are taking place in 11 police areas into the transfer of ethnic appearance data collected by the police on persons arrested to magistrates' and Crown Court computer systems. What does the Home Office tell me? The report says the level of missing data is at least one quarter, thus making it difficult to identify ethnic differences in court decisions at local level. So that information cannot be used because part of it is missing.
We then come to four pilot schemes mentioned in this research document where such information was collected. It says that the missing data level in the four areas was 4 per cent, 12 per cent, 9 per cent and 12 per cent. Again, that is a Home Office conclusion, not mine. The conclusion of' the researchers was that the sample of ethnic data was too small to reach a decision. The noble Lord, Lord Warner, cannot use this document because it cannot give statistically sound information on the basis of which one can reach a conclusion.
The document goes further. It says that it is not possible to provide data by offence or age group, both of which are known to vary among ethnic groups. Also, factors such as previous convictions cannot be taken into account. I am trying to point out the negative aspect of this research.
§ Lord Warner
My Lords, will the noble Lord accept that I did not go into the detail of that study because I did not feel it was fair as I did not realise the noble Lord had the full briefing. If he reads Hansard tomorrow he will see that my point was that the evidence did not support the idea that people from ethnic minorities would be disadvantaged in magistrates' courts. I did not claim that they would be advantaged. He is knocking down an argument that I did not make.
§ Lord Dholakia
My Lords, I am grateful to the noble Lord for that explanation. All I am saying is that if he had used the same research as that to which I am referring, his conclusion would not stand up, again, for reasons I shall explain in a moment. If the noble Lord wants to conduct proper research, I shall give an example of how that can be done.
That study, in its present form, is unhelpful. However, it points to one fact; that is, that ethnic minority defendants in those four police areas were found to be more likely to be committed to the Crown Court for trial. To draw a conclusion that there is no difference in treatment in the magistrates' courts on 992 the basis of such limited information is dangerous. I shall of course say more when the research is published on 9th December.
When Dr Roger Hood of the Institute of Criminology at Oxford undertook a study of Crown Courts he had a sample of over 6,000 ethnic men and women—the first time in the history of this country. Nearly 1,500 male offenders were identified from the records held by the police and he used 15 legally relevant variables and a variety of bases for making comparisons. That does not come out in the data of the document given to me by the noble and learned Lord. Dr Hood's conclusions were that, all else being equal, black offenders had a 5 to 8 per cent greater probability of being sent to prison than whites. Of course, that relates to the Crown Court and I do not dispute that. I am saying that if research is to be quoted, then it should be research which has a sound basis, taking into account sentencing variables, comparing like with like. Then we can come to a conclusion rather than just looking at the end product based on a decision-making process in three or four courts in this country. Those are less than reliable figures.
We will have more faith in research findings when similar methodology is applied. Unfortunately, that is not the case. I hope that that was not the basis on which a judgment was made about black people and magistracy. I was grateful that the noble and learned Lord, Lord Mayhew, mentioned the Society of Black Lawyers and the research by Professor Lee Bridges. But I must say to him that it was not Lee Bridges; it was the Home Office which carried out that research for the Royal Commission on Criminal Justice. That was the information compiled by the Home Office research unit and given as a research paper to the Royal Commission.
It said that black youths were especially likely to be stopped by the police and arrested, although only a small proportion of arrests resulted from stops. If only one in 10 results in a criminal justice process, then it is no surprise that nine out of 10 have an adversarial contact with the police. Once arrested, black youngsters are less likely to be cautioned than whites. The overall pattern of charges brought against blacks differs from that for whites. Again and again we heard that argument. Black defendants are more likely to be remanded in custody. Black defendants are more likely to plead not guilty to the charges brought against them. Black defendants are more likely to be tried in the Crown Court. Black defendants are more likely to be acquitted. Black defendants, when found guilty of a crime, are more likely to receive longer and more custodial sentences and a different range of non-custodial disposals. That was the Home Office evidence. One has simply to go back in the file to find out the position of black people.
The result of all that—the noble Baroness, Lady Kennedy, is absolutely right—is that we are destroying the confidence of black people in this system. Corning after what happened in the case of Stephen Lawrence, it is even more painful. The result of all this is that 993 18 per cent of the male prison population is black and 26 per cent—one in four women—in British prisons is black.
The Home Office will have to ask why, within the criminal justice system, we have produced this discrepancy. Black people see the criminal justice process within the definition provided by the analysis of Sir William Macpherson of institutional racism, but time will not permit me to repeat that.
It is safe to assume that discrimination and differential treatment occurs in all fields and our courts are no exception. Almost all the research to which I have had access confirms that this is so. If we accept that that selection process is right and a broad cross-section of the community is involved, then the magistracy, and to some extent the judiciary, will not be exceptional in holding prejudicial views. It is no good being squeamish about it.
The late Lord Taylor once said,Race issues go to the heart of our system of justice which demands that all are treated as equals before the law. It is therefore a matter of the gravest concern if members of the ethnic minorities feel that they are discriminated against by the criminal justice system, more so if their fears are borne out in reality".The working of the system is generally characterised by considerable variation in the way decisions are taken. The impact of these decisions adversely affects black defendants. For these reasons it is important to ensure that this perception, even if it is not borne out by the latest research evidence, offers an alternative so that the confidence of the minority in the system is not shaken. The jury system does offer that alternative.
The noble and learned Lord has already confirmed that the right of appeal will be available. We still do not know how many people will appeal or how much it will cost. I come back to the point about the need to build the confidence of our community in the justice system. The present Bill is unhelpful in that respect.
§ 9.9 p.m.
§ Viscount Astor
My Lords, this is a one-clause Bill which your Lordships have been debating for, I believe, over five hours now. In the process your Lordships have dissected it, taken it to pieces and destroyed it. I can be very brief because it will take only a slight kick to bury it forever.
The noble and learned has suffered trial by jury by his peers. If there were majority verdicts in your Lordships' House he would have lost 18 to three this evening. The noble Earl, Lord Russell, said that the noble and learned Lord would make a good job of a bad case. If he manages that this evening he is worth every penny that the Government are paying him.
I am not a lawyer or a magistrate. I am not going to follow the noble Lord, Lord Warner, who showed, as a non-lawyer, how easy it is to lose a legal argument against a battery of legal experts using statistics which did not really match his conclusions and facts which did not prove the case.
994 Noble Lords have heard that this Bill strikes at the very heart of the judicial system of this country. Trial by jury dates back to at least the 13th century and Magna Carta. I understand that trial by seven of a defendant's peers replaced trial by combat or ordeal in which the accused might be required to plunge his arm into boiling water. If he survived the shock he was deemed to have God and right on his side. I say to the noble and learned Lord that if he manages to do that he might have a chance of getting this Bill through your Lordships' House, but it will require something at least as remarkable as that.
Some noble Lords have commented on the previous Home Secretary's position on this Bill. Perhaps I may briefly address that issue. The Conservative government effected a major change in the system with the introduction of plea before venue. That measure was introduced by the Criminal Procedure and Investigations Act 1996 and came into force on 1st October 1997. In either-way cases a defendant is required to indicate his plea before the venue for his trial is decided. If he indicates that he will plead guilty the magistrates may proceed to convict and sentence him without him having the opportunity to choose a Crown Court trial.
That measure was designed to improve the efficiency of the system by cutting back on the number of either-way trials reaching the Crown Court unnecessarily where the defendant chose jury trial at the magistrates' hearing but pleaded guilty before trial at the Crown Court.
However, the Conservative government did not remove the right of a defendant pleading not guilty before the magistrates to choose jury trial despite that being a recommendation of the Runciman Royal Commission. The Conservative government stated that the recommendation should be reconsidered in the light of the effect of a plea before venue. The previous government were not persuaded of the need for change. So there is no change of mind.
There are many reasons to argue against this Bill. The Home Office consultation paper states that in 1990, 60 per cent of the cases dealt with in the Crown Court were sent there because magistrates declined jurisdiction in those cases, although magistrates' sentencing powers would have been sufficient to deal with the majority of those cases. In 1992, 46,500 cases—which is about 63 per cent—were sent to Crown Court because magistrates declined jurisdiction. Cases have not gone to Crown Court purely because defendants wanted their cases tried there.
These proposals will shift the burden to the magistrates' courts. One has to remember that only a year ago the Government berated magistrates' courts for their ever growing delays and inefficiency. The Government have failed to give proper consideration to whether magistrates' courts will have the capacity to deal with this sharp increase in the number of trials for serious charges which would result from this Bill. The Government should address the delays in Crown Courts, not bypass them.
995 Much has been made of the claim that lawyers have a vested interest in more trials being tried in Crown Court. That charge could be levelled against the legal profession in some circumstances, but one cannot say that about Justice, Liberty, the Institute of Race Relations, the Howard League and NACRO, all of whom oppose the Bill. Solicitors, of course, have an interest in more cases being tried in magistrates' courts.
I turn to trial by jury. Noble Lords opposite appeared to argue that this was not a fundamental right and that it was a right instituted about 140 years ago. That argument has been totally demolished.
§ Lord Borrie
My Lords, if the noble Viscount will allow me to intervene, I certainly never suggested any such thing. I suggested that trials by jury had always been only for the most serious cases and, in terms of numbers, were a small proportion of the total number of criminal cases. That was reduced somewhat further in 1855. The 1855 Act removed a number of previously indictable offences from the list of indictable offences and introduced the election which has existed ever since.
§ Viscount Astor
My Lords, I take the noble Lord's point. It helps me to make my next point; namely, that it seems to me that a provision which has existed for 150 years has become a fairly fundamental right. Noble Lords opposite have argued about much more recent constitutional arrangements than the one we are discussing. It is important to stress that the concept of plea before venue has not had time to work properly in many instances. 'We know that the number of either-way cases coming to Crown Court has gone down. It would be helpful if the noble and learned Lord could give us the up-to-date figures.
It is interesting to note the comments of the noble Lord, Lord McIntosh of Haringey, when he was opposition home affairs spokesman in your Lordships' House. He said:I remind the House that Section 49 has not yet been brought into force. Should we not try that first before we move on to a different and conflicting recommendation?"—[Official Report, 27/2/97; col. 1283.]I agree with the noble Lord, Lord McIntosh of Haringey. The current Secretary of State, Mr Jack Straw, said exactly the same thing on 27th February 1997. What evidence do the Government have that plea before venue is not working?
I shall say a few words about Scotland. The noble Baroness, Lady Kennedy of The Shaws, demolished an argument that the Government have used; namely, that all they were doing was to bring a provision into line with a provision in Scotland. However, it is quite clear that the position in Scotland is entirely different. The sheriffs there have different powers. There is good reason why the law in England cart, and should, be different from that in Scotland. I do not believe that this Bill will ever reach another place. However, if it did, it would be interesting to note whether, under the devolved Parliament, the Scottish MPs would feel that 996 they should speak and vote on the measure in another place. Or would they have some self-denying ordinance and not get involved?
I turn to magistrates and the powers that the Bill proposes in that regard. My noble and learned friend Lord Mayhew described the powers as repugnant. The proposed new Section 19(3)(d) states,whether the accused's livelihood would be substantially diminished as a result of conviction".I am not a lawyer but it is my understanding that not many people who are convicted of an offence find that their livelihoods are not considerably diminished.
Equally, it refers to the accused's reputation. What does that mean? What kind of reputation? A public reputation? A private reputation? As far as I am aware, most people who are convicted suffer some damage to their reputation. That is the nature of convictions.
Contrary to what was said by noble Lords opposite, no one has attacked magistrates in the debate. The Bill proposes an unfair burden on magistrates. It will put them in an impossible position and give them an impossible task. The noble Lord, Lord Thomas of Gresford, spoke about admissible evidence and the different rules there would be for magistrates in comparison with the Crown Court. When magistrates have to rule whether or not evidence is admissible, they will know that evidence. In a Crown Court a judge may rule on admissibility and the jury will not get to see the evidence if it is ruled inadmissible. Electing for Crown Court trial gives the defendant access to material which would otherwise be available only upon entering a plea of not guilty.
In the light of the Macpherson recommendations, I find it extraordinary that the Government should bring in the Bill. It seems totally contrary to the spirit of those recommendations. The noble Lord, Lord Dholakia, successfully demonstrated how that was the case.
The Government would have a case if they could argue that quicker justice was better justice, but there is nothing in the Bill that does that. There will be additional appeals to the Crown Court on venue and on conviction which will clog up the system. It will not be quicker. As noble Lords have said, there do not seem to be any great financial savings. It is extraordinary that the Government are looking for savings of £100 million. I do not see how they will ever get them.
On the question of delay, the noble and learned Lord, Lord Ackner, in discussing the James Report, drew attention to the fact that the existence of a right of appeal would mean that a case retained in the magistrates' court would have to wait until the time for appeal had expired. Perhaps the noble and learned Lord the Attorney-General can tell us how long the time for appeal will be.
My noble friend Lord Alexander of Weedon described the Conservative Party in this House going back to its traditional role as guardian and protector of civil liberties. I believe that the Conservative Party has always been the guardian and protector of civil 997 liberties. I believe that the noble Lord on the Front Bench also believes that. But it seems that that is wrong.
This is an extraordinary Bill to introduce at this time. One can only come to the conclusion that the Home Secretary had his arm twisted by the Treasury; that he thought, "What do I do? I do not want to start the Bill in another place; I will start it in your Lordships' House. Then it will be mauled and kicked out and I can go and say, 'I am very sorry. I tried my best but it went down so badly that I have had to withdraw it'". That is the only logical explanation one can put on why the noble and learned Lord and the Government Chief Whip ever decided to start the Bill in this House. They do not have their hearts in the success of the Bill.
I invite the noble and learned Lord to put up the best defence he can this evening and then to go away and read Hansard. I then invite him to take a deep breath, go and see the Home Secretary and say, "I have done my best. I am sorry, there is nothing we can do about it"—and then to come back in the new year having quietly forgotten the Bill.
§ 9.24 p.m.
§ Lord Williams of Mostyn
My Lords, what I shall say to the Home Secretary, since I am not bound by the constraints that the noble Lord, Lord Warner, rightly is—it is quite wrong to suggest that he is ducking the issue when he has his constitutional proprieties to observe—is, and I shall say it privately, "Jack, all the arguments that you and I anticipated were duly rolled out. Nothing new was said, although it was said in a variety of different ways and most attractively."
By and large, I believe that the debate has been conducted very courteously: I think I had only two insults hurled at me. One, I thought, must be the worst; that was from the noble Lord, Lord Thomas of Gresford, who suggested that in the privacy of my own home I might be wearing spangled tights. I found that deeply offensive as the Solicitor-General and I were the only two who went to the Lord Chancellor's Breakfast refusing to wear even black tights. I hasten to say that we did wear trousers! Then, the worst, most considered and most wounding of all insults came from the noble Earl, Lord Onslow, who said that I appeared to be an "insincere Michael Howard". If he reflects on it, I believe that a worse insult might have been that I appeared to be a "sincere Michael Howard".
I believe it is fair to say that this ground has been pretty well traversed. Any inconvenient fact, any phrase in the Bill which did not fit preconceived notions, was rapidly placed on one side. A number of your Lordships referred to what was said in the Runciman Commission report. I am happy to go back to that because I believe that the full citation is worth reading:Loss of reputation is a different matter, since jury trial has long been regarded as appropriate for cases involving that issue".998 That was the citation. However, I continue:But it should only be one of the factors to be taken into account and will often be relevant only to first offenders. In our view, in either way offences the decision as to the mode of trial should rest on a variety of relevant factors including the gravity of the offence, the past record if any of the defendant, the complexity of the case, and its likely effect on the defendant (including the likely sentence) if there is a conviction. Under our proposed scheme the defendant would have the right to urge any considerations supporting jury trial that he or she wished".That is what Runciman actually said. I disagreed with that recommendation then and, if it were in the Bill now, I should disagree with it still. I repeat what I wrote in response to the Runciman report in 1993:The magistrates would have the power to decide. That would be madness".I do not believe that it would be right for the magistrates alone to have that determinative power. The reason I gave was:How would a defendant feel about his case if he has failed to obtain a jury trial and has his case heard in the very magistrates' court that refused him his present rights?The noble Lord, Lord Dholakia, is quite right. Normally on these matters, apart from a shade of emphasis, there is virtually nothing between us. He says he has remained adamant to his position; he has. I have remained adamant to mine. That is not determinative of whether I am right or wrong. I simply point out that I have done no turn of any kind: 180, 90 or 45 degrees. I did not believe that Runciman was right then; I do not believe that he is right now.
In fact, what Runciman did not propose was the right of appeal which is included in this Bill. I hesitate to invite your Lordships' attention to the text but I shall. Incidentally, it was suggested that the defendant was to be there almost as a person making a petition to the Sultan of the Ottoman Empire as some sort of submissive creature. But quite the opposite is true. It is stated:For the purpose of subsection (1) above the court … shall permit"—not the accused—the prosecutor and the accused to make representations".They are both put in an equivalent position. Initially, the magistrates and then the court has to take into account,the nature of the case … whether the circumstances make the offence one of serious character … whether the punishment which a magistrates' court would have power to impose for it would be adequate … whether the accused's livelihood would be substantially diminished as a result of conviction or as a result of punishment of a kind or magnitude likely to be imposed … on conviction … whether the accused's reputation would be seriously damaged as a result of conviction or … punishment of a kind or magnitude likely to be imposed … and"—not a word has been said about this all night—any other circumstances which appear to the court to be relevant".I do not think that a wider judicial discretion than that could be offered to the magistrates.
§ Lord Thomas of Gresford
My Lords, perhaps I may ask the noble and learned Lord a question. In his opening remarks today he said that the application 999 would be similar to a bail appeal application to a judge. Is it envisaged that that would be in chambers and that if the defendant were on remand he would have no right to appear, no evidence would be given, and that it would all be done on paper, as happens with bail appeals at the moment? How does the noble and learned Lord see it happening?
§ Lord Williams of Mostyn
My Lords, the noble Lord is confusing where we have reached. At the moment, I am still in the magistrates' court. That is where I am focusing my remarks. Those are the issues to which the magistrates' court must attend. What I said about bail a few hours ago was that we trust the Crown Court judge in matters of bail. If we trust the judge in the Crown Court to deal with questions of bail, I repeat that those are absolute powers not subject really to any overthrow or contrary determination.
I deal with the matter in two stages. First, although this is a matter for rules of court in due time—I am more than happy, as I said right at the beginning, for representations to be made about what should be in the rules of court, which I would of course transmit to my noble and learned friend the Lord Chancellor—I would anticipate that when the application was made in the magistrates' court, the defendant would be there. I would thereafter anticipate—I take the point made by the noble Lord, Lord Thomas—something not dissimilar to the bail appeal to the Crown Court, where it is normally substantially a paper appeal, but oral representation is allowed where appropriate. I would anticipate—I recognise that this cannot be more than an educated assessment or guess—that there might be appeals in about a quarter of the cases.
As questions of right have been mentioned, perhaps I may indicate that this is not a Bill to take away the right to jury trial. A number of noble Lords have, I say with great respect, mistakenly put that argument. This is not such a Bill. It is actually—if noble Lords will allow me to explain, they will then understand—a Bill to take away the automatic, absolute right of a defendant in some circumstances to insist on jury trial. The two concepts are of course quite different.
Perhaps I may give a citation as it expresses my view and the Government's stance perfectly:It seems to me objectionable to accord such an absolute right to the defendant on whose list of priorities the reaching of a just and expeditious decision may not rank very highly. This is a judicial decision properly to be made by the magistrates' court on consideration of all the relevant circumstances".I add to that—I shall give the authorship in a moment—my own belief, which is reflected in the Bill, that there should be the automatic right to appeal for reflection and consideration by the Crown Court judge. That citation comes from the Lord Chief Justice. Some of your Lordships will have been present when we had very extensive debates and differences of view—the noble arid learned Lord and I—when we were discussing questions of sexual offences and protection for either complainants in rape cases or defendants in rape cases. I do not think that anyone could fairly say about the noble and learned Lord the Lord Chief Justice that he does not commonly— 1000 indeed, I find on every occasion—take an independent view. What I quoted was his view. Therefore, I do not think it is bad motive on either side, whether institutionalised legalism or governmental absolutism, that should bring us to our conclusion.
The real tests are: what are the facts; what do we want from the criminal justice system; and how do we get it? The facts are that 97 per cent or so of all criminal cases—1.8 million a year—are tried in the magistrates' courts. That is a wholly different set of circumstances from the beginning of the jury system and its history in this country. Let us not forget that jurors were originally called to serve on juries because they knew all about the case. We then developed the opposite pole in that particular journey so that no one can be sworn to serve on a jury who knows anything at all about the facts of the case or the defendant. Let us remember that—not in any sense to diminish the present role of the jury, but to bear in mind that it should be a confident, functioning tool in the society we presently inhabit.
I shall move on to what the wicked magistrates have been doing. Four hundred thousand of the 1.8 million cases are either-way cases. If I am not mistaken, that means that in 400,000 cases, the defendants were content to be tried by the magistrates. I do not think that an alternative conclusion can be drawn from those bleak facts. Of the 65,000 either-way cases that went to the Crown Court last year, 47,000 were sent there by the magistrates. That was not because they wanted to clutch the trial of those cases to their own sweaty bosom, but because, in those cases, they thought it appropriate—for various discrete reasons, and those reasons are decided on a more limited basis than is provided in the Bill—to send 47,000 for trial in the Crown Court. Of the remainder who went to the Crown Court, as we have heard so often, 18,500 elected; of those 18,500, 60 per cent pleaded guilty.
Sir Iain Glidewell, in his review of the Crown Prosecution Service, said—and I am bound to say that whatever criticism I have heard against him, not being independent is not among the vocabulary—that he reached the conclusion that the fact that well over half of those people who elect for trial plead guilty raises a serious question about the present system. Although I know that not all noble Lords will necessarily agree with me—or at least not this evening—I am hound to say that his conclusion is rational and would seem the only one to be drawn here. We are talking about a relatively small number of people involved in cases that have substantially different consequences.
Noble Lords will not like me for saying this, but since it is true I shall. A person in the notional position of the wife of the noble and learned Lord, Lord Mayhew of Twysden, is in a different category from someone who has done 10 burglaries, elected on 10 different occasions to go to the Crown Court, and pleaded guilty on every occasion. I assert that to be a fact.
§ Lord Alexander of Weedon
My Lords, I thank the noble and learned Lord for giving way. I understand the distinction that he has made, which is a distinction 1001 between someone without any previous convictions and someone with previous convictions. Can he envisage any circumstances in which someone without previous convictions would not have his or her reputation seriously damaged as a result of a conviction?
§ Lord Williams of Mostyn
My Lords, probably not. I take the noble Lord's point, but I think one has to look at the particular case.
I have been attempting to develop a theme that the noble Lord was good enough to raise last night. It is right that your Lordships should know what was the noble Lord's question and what my response would have been. The noble Lord asked, perfectly legitimately and helpfully, what are the prospects of the young, black, unemployed lad as opposed to—I shall cite the example he gave me—a white man with a professional qualification. I, too, should like to raise a question. What is the difference between the young, unemployed white lad and the successful black or Asian professional man? I do not believe that one needs to narrow these issues, except that I invite noble Lords to return to the tests set out in the Bill. They give a very full—I would say a super-abundant—discretion to the magistrates. If the magistrates are not fair—I take the noble Lord's point entirely—the Crown Court judge is there. He has no personal investment in the sense that he wants to retain the case in the Crown Court.
Furthermore, I take the point that has been made about all institutions. Those who dwell in an institution tend to become part of it and are not capable of looking in from the outside. I am trying to look in from the outside.
I teased the noble Lord, Lord Thomas of Gresford, the other evening by saying that he was an unreconstructed barrister. But I think I teased myself more by admitting my gross error when I objected to the perfectly rational proposals of the noble and learned Lord, Lord Mayhew—the fact that they were perfectly rational was more reason to attack them! They turned out very well in practice.
It could be said that that element of double jeopardy which undoubtedly exists, and still subsists in the present state of law, is wholly alien to the British system and utterly inconsistent with the spirit of Magna Carta. I dare say that, had I thought of it, I should have said that myself. But times have changed. We have to bear in mind that many of our systems—again, this is simple fact, even if it is unpalatable—were brought into existence at a time when a defendant could not give evidence on his own behalf. That was still the position in 1855 when defendants were illiterate, innumerate, and, by and large, in the overwhelming majority of cases, were not represented and their cases were disposed of in under an hour. I merely refer to historical fact.
§ Lord Mayhew of Twysden
My Lords, I am grateful to the noble and learned Lord for allowing me to intervene. Is he not taking a false point in saying that 1002 this was an instance of double jeopardy but we learnt to live with it? The concept of double jeopardy and one's antipathy to it historically lies in the concept of the prosecution having two bites of the cherry in establishing a person's guilt. It is not an apt analogy to the case with which the noble and learned Lord is dealing, which is a question of sentence.
§ Lord Williams of Mostyn
My Lords, I am bound to say that I disagree with the noble and learned Lord. If one is in jeopardy, one is in jeopardy at two stages at least: one is guilt or lack of guilt, as a result of the verdict of the jury; the second important question of jeopardy—and for many defendants it is the critical question—is the nature of the sentence: prison or not, community sentence or fine. If, in January, one is given a sentence of 12 months' probation and, six months later, after an Attorney-General's reference, with the filters that the noble and learned Lord built into the legislative scheme, one receives a sentence of three years' imprisonment, I suggest that that is fundamentally an aspect of double jeopardy. Many of the arguments mounted against the noble and learned Lord's new scheme, which was to work admirably well in practice, were on that basis.
As I said at the beginning of my remarks and am happy to repeat, I am not impugning anyone's motives. I do not think that anyone can fairly have detected that in what I said. It would not be right to do so; I do not think that anyone who has spoken in this debate has discreditable motives. The only disharmony arose when some disagreeable comments were made about the noble Lord, Lord Warner, who simply attempted to develop his theme with noteworthy patience.
§ Lord Hutchinson of Lullington
My Lords, the noble and learned Lord looks irritated that he is interrupted, but he invites interruptions. He is a past master at not answering the question. Is he prepared to answer the very simple question put to him by the noble Lord, Lord Alexander? He has spoken a great deal about other matters since. Will he answer it?
§ Lord Williams of Mostyn
My Lords, I answered it plainly. I said that the noble Lord had a perfectly good point but I could not conceive of every possible circumstance in which the magistrates would come to their conclusion. The noble Lord, Lord Hutchinson, may not like the answer; however, he is not entitled to say that I did not answer the question. I am not irritated on any occasion when noble Lords interrupt me, although if I continue speaking for much more than a minute, some of your Lordships will become irritated with me—quite unfairly.
The noble Lord, Lord Dholakia, raised many aspects of great substance, and in some detail. He raised a question during our meeting yesterday about the state of the up-to-date material. I promised to get it to him as soon as possible. He is right to point out the statistical deficiencies. All I will say is that we ensured that the digest—which is all it was—went to him, pointing out the nature of the statistical 1003 deficiencies. It is all there. It points out that the data are not perfect, that some of them are not as good as in other areas of the 11, and that is how the matter was left.
I am conscious of the difficulties of relying on statistical material because there is always someone who can challenge the variables, but according to the figures that I have the acquittal rate is 48 per cent for black defendants in the magistrates' court. I repeat that I am always conscious of the deficiencies of statistical samples. The equivalent figure for white defendants of acquittals in the magistrates' court is 42 per cent. In the Crown Court the acquittal rate is 36 per cent for black defendants and 30 per cent for white defendants. If those figures can tell us anything—and I repeat that I know the limitations of small samples—they show that the acquittal rate for black defendants in the magistrates' court is higher than the acquittal rate for white defendants in the magistrates' court.
§ Lord Wigoder
My Lords, I have been endeavouring not to interrupt at any stage, but I am tempted by that observation. Dc not those figures merely demonstrate that more black people than white people are being wrongly arrested?
§ Lord Williams of Mostyn
My Lords, of course that may be so, and indeed I volunteered in response to the noble Lord, Lord Dholakia, that there are very significant variables. I do not think that your Lordships would expect me to justify any malpractice by the police: I do not. I have to remind your Lordships, when the Home Secretary is assailed for illiberalism, that it was he who introduced, as a Home Office Bill, the Human Rights Bill. It was he who set up—quite a while, I remember, after the murder of Stephen Lawrence, but not long after we came into government—that inquiry, determined that it should be in public, insisted that it should be fully reported in public and accepted immediately at least three-quarters of the recommendations.
I repeat that there are difficulties with statistics. That is one of the reasons why it would be helpful if we were able to pool the relevant material that is available. One can derive different conclusions from apparently perfectly respectable statistical material. I do agree that perception is important. I also think that we sometimes have a duty not to add fuel to the fire of misperception, and when those from ethnic minorities, whether black or Asian, have wrong perceptions of the fairness of our systems, if they are wrong we ought to he bold enough and confident enough and sufficiently strong in discharging our duty to tell them so.
1004 I have not been able to deal with every single point that has been raised, even in the 23 minutes that I have taken this evening. Indeed, I am sorry to have taken so long, but I must repeat that my own prognostication is that we are not going to arrive at a situation where your Lordships agree with the Government's view. On the other hand, I ought to reiterate that the opportunity for consultation and for comparing different pieces of research remains available. The noble Baroness, Lady Kennedy, referred to research about white Irish defendants. I have not seen that research; I first heard of it yesterday and I would be most obliged if she could provide it to officials so that they may study it and see how representative it is.
I will say just one more word this evening, if I may. I am convinced, having listened with care to what has been said—and I have not been out of my place for one second: I have listened to every syllable that has been spoken—that this is a proper and prudent way to go forward. I believe that we have a duty to make sure that this resource—I am not talking about money but about the resource of the criminal justice system—should be appropriately focused on those serious cases where the state and the citizen clash, because my own view is that that is the true value and glory of the jury system.
§ Lord Alexander of Weedon
My Lords, before the noble and learned Lord sits down, perhaps I may trespass on the great courtesy and patience that he has shown throughout this debate, which has impressed us all though we know it to be typical of him, to answer one further short question. It is simply this: will the magistrates have to give reasons for their decision?
§ Lord Williams of Mostyn
My Lords, again, I think that is something that ought to be part of the discussion that we develop. It is certainly something that needs to be considered in the context of the rules of court, and I am perfectly happy to receive any representations that are made. One would have to consult the Magistrates' Association. Ultimately it is a matter for the noble and learned Lord the Lord Chancellor as to how he determines the rules of court.
I take the noble Lord's sub-theme that giving reasons is beneficial in at least two respects. First, if it is an adverse decision, reasons sometimes soothe the wound. Secondly, often they make a better decision possible.
I should have mentioned one tiny point. I was going to write to the noble Lord. He slightly misunderstood the £5,000 question. The £5,000 relates only to the value of criminal damage, not to the value of theft.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.
§ House adjourned at ten minutes before ten o'clock.