HL Deb 19 May 1999 vol 601 cc357-67

6.42 p.m.

The Minister of State, Home Office (Lord Williams of Mostyn)

My Lords, I beg leave to repeat an Answer given by my honourable friend Mr. O'Brien in another place earlier today.

"My right honourable friend the Home Secretary announced this morning, in response to a Written Question that appeared on Tuesday's Order Paper, the Government's proposals to change the way in which the mode of trial was determined for those cases that are triable either-way.

"The Royal Commission on Criminal Justice in 1993, and more recently the Narey Review of Delay in the Criminal Justice System in 1997, recommended that defendants should not be able to choose to be tried in the Crown Court in either-way cases where magistrates have indicated that they would be content to hear the case.

"We have considered this recommendation along with the responses to the consultation paper my right honourable friend issued on 28th July last year. The answer to the Parliamentary Question today indicated that we will be bringing forward legislation when parliamentary time allows to abolish the ability of defendants to elect for Crown Court trial in either-way cases.

"Some believe that to remove the defendant's veto on the magistrates' decision that they should hear a case would erode fundamental individual liberties established in the Middle Ages, if not by Magna Carta itself. However, while trial by jury is indeed ancient, a defendant's ability to choose to be tried by a jury rather than by the justices was brought in in 1855.

"The Government agree that jury trial is right for certain sorts of case. The question is whether it should be available on demand, or restricted to business which objectively warrants it. In the same way that defendants do not have a choice of which magistrate, or which judge and jury hears their case, we believe that defendants should not be able to choose where their case is tried. In Scotland there is no ability to elect for trial; indeed the prosecution decides the venue. I know of no other country in which such an ability to elect is allowed.

"The majority of cases in which the defendant elects for Crown Court trial result eventually in guilty pleas, but only after greater inconvenience and worry to victims and witnesses, and at considerable extra cost and using police time to little effect. Home Office research indicates that nine out of 10 people who elect to be tried at the Crown Court have previous criminal convictions. It is clear that persistent offenders are abusing the system of election. This Government's proposals will end the practice that many rightly regard as a manipulation of the criminal justice system by defendants demanding Crown Court trial for no good reason other than to delay proceedings.

"But there will be safeguards. When determining the mode of trial magistrates will be required to have regard not only to any defence representations but also to such factors as the gravity of the offence, the complexity of the case—as legislation already requires—and the effect of conviction and the likely sentence on the defendant's livelihood and reputation. In addition to the automatic right of appeal to the Crown Court against conviction, defendants will also be given a right of appeal to the Crown Court against the magistrates' decision on mode of trial".

6.45 p.m.

Lord Cope of Berkeley

My Lords, your Lordships' House will be most grateful to the Minister for making this Statement to the House today which the Home Secretary declined to make to another place. Of course I realise that the Home Secretary is today addressing the Police Federation in Belfast. But, after all, he chose the date for this announcement. There is no urgency about it. All it does is to anticipate the Queen's Speech. No doubt the Home Secretary chose to make the announcement today in order to "pad out" his speech to the Police Federation and avoid speaking about police numbers, police resources, the threat to police pensions and those kind of matters.

I agree with one Labour Member of another place who said that it was a disgrace that this announcement should be made first to newspapers and on the radio this morning and then later presented to Parliament as a Written PQ. However, we in this House have been more fortunate in that we have the Minister to explain the matter to us. Will the Minister confirm that this proposal was considered by the previous Home Secretary following the recommendations of the Royal Commission and was shelved by him? Now the Home Office, or more likely the Treasury, has taken it out of its pigeon-hole and the present Home Secretary has accepted it in spite of the opposition of civil rights groups such as Liberty and Justice. It is opposed particularly by those working with the ethnic minorities. It is opposed by the Minister's own professional body, the Bar Council, as well as by the Law Society, many Labour MPs and indeed by my colleagues and I. It was, of course, opposed by the Home Secretary until comparatively recently. He was particularly virulently opposed to it when he was in opposition. The Minister mentioned Scotland. But, of course, in that part of our kingdom legally qualified justices are involved, not lay magistrates.

I have a couple of questions to ask which flow from the reasons given for this proposal. My first question concerns finance. Will the Minister confirm that the expected saving—which is suggested in the newspapers at any rate which seem to be well informed on this matter—is about £70 million? If that is the case, does part of that saving arise presumably from the fact that lay magistrates are cheaper than paid judges for the simple reason that they are lay people? Does any of that saving arise from the shorter sentences which tend to be passed by magistrates than are passed in the Crown Court? Does the calculation take account of the fact that there will now need to be additional hearings? As I understand the position, many cases will now need to be heard first by a bench of magistrates to consider where the case should be tried. When they have made that decision there will sometimes be an appeal on it—as the Minister said—to the Crown Court. There will then have to be a second hearing by a different bench of magistrates—as they will not have heard all the particulars of the defendant and so on that may have emerged in the first hearing—in order to decide the case.

Then of course sometimes there will later be an appeal to the Crown Court against the decision in the case. I realise that so far as concerns the first appeal and the question of where the case should be heard, some lawyers take the view that appellate courts rarely interfere with matters which are within the discretion of the junior court. So an appeal of that kind is likely to prove largely illusory. That of course helps We Home Office's financial arguments and savings but it goes against the fairness arguments advanced by the Minister.

Lastly, may I ask the Minister about the relationship of this proposal to proposals in the European Community. The Minister in another place drew attention to European comparisons. He implied that this was a proposal in the direction of European harmonisation. Can the Minister say whether this is part of the preparations for the so called corpus furls in the European Community?

Lord Dholakia

My Lords, I thank the Minister for repeating the announcement made by the Home Secretary this morning about the mode of trial of either-way cases. We are given to understand that the decision was made on the basis of the report of the Royal Commission on Criminal Justice and the Narey Review of delays in the criminal justice system.

The noble Lord, Lord Cope of Berkeley, identified a number of organisations which are absolutely against the idea. Perhaps I may add to the list. As well as the Law Society, the Bar Council, the Black Lawyers Association, Liberty, Justice, the Legal Action Group, and the noble and learned Lord, Lord Ackner, have all expressed concern about the diminishing of rights.

The reality of the Government's proposal is that more than 18,000 defendants per year would lose their right to a jury trial. The Government's decision requires a number of clarifications. I do not object to the fact that the Home Secretary, when he was in Opposition, said that the reform was wrong, short-sighted and likely to prove ineffective. I am entitled to ask what factors have determined his change of heart. The bottom line advanced is that the measure could save millions of pounds. Again we are entitled to ask whether it is based simply on financial considerations or were platters of civil liberties and the rights of the individual established since 1855 taken into account.

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 right to remove that particular right. Scotland was cited by the Minister as an example of a country where there is no ability to elect as to trial and where the prosecution decides the venue. In Scotland defendants do not elect; similar cases are heard by a professional judge, in contrast to magistrates' courts in this country.

Is the Minister aware of the considerable concern expressed by representatives of ethnic minority communities? Research evidence indicates that black defendants get a worse chance in magistrates' courts than they do before juries. A higher proportion of black defendants elect for jury trial because they believe that they have a more reasonable chance of being acquitted in the Crown Court.

The argument is advanced that the change is designed to end the abuse of the system, which leads to delay, waste of resources and a prolonged wait for justice. The number of cases where defendants elect to go for jury trial has been falling for the past 10 years. It is not a growing problem. No one would argue that there are cases where the system is abused, but that does not mean that the right should be removed for others.

There are cases which affect the livelihood, respect and dignity of individuals. How would the new appeal system work in cases where the decision of a magistrates' court not to allow a trial by jury is contested? Will legal aid be available for such an appeal? Would not 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 have not been in the House as long as many noble and learned Lords on all sides, but I recollect that since 1974 a number of administrations have tried and dropped the idea because it failed to command support. It will be nice to know whether the Minister has revisited the earlier argument; if so, how has the situation changed?

My final concern has not been explained. It can no longer be guaranteed that a case will be heard by three magistrates sitting in a magistrates court. Many cases these days are heard by a single stipendiary magistrate. In a case heard by a jury there are at least 12 people to balance out any prejudices and reach a decision, which is not the case with one person.

Lord Williams of Mostyn

My Lords, I am grateful for the responses of the noble Lord, Lord Cope of Berkeley, and the noble Lord, Lord Dholakia. Perhaps I may deal first with the last point of the noble Lord, Lord Dholakia. He pointed out that the question of Scotland was not a perfect analogy because those trying the cases in Scotland are legally qualified. He then rather spoilt the perfect symmetry of his approach by raising a serious question about the independence of the stipendiaries; he said it was not appropriate for people to be tried by a single stipendiary. But all stipendiaries in our jurisdiction are fully legally qualified as a necessary pre-condition of their appointment.

The noble Lord, Lord Cope, will not mind me teasing him. He began by making one or two of the usual House of Commons points. The Question appeared on Tuesday's Order Paper and the Answer was given. It is an Answer simply of the Government's response to the consultative document. We have not got anywhere near a Bill and it seems to me that answering in such a way was appropriate. Subsequently, the Answer having been put down at 11.30, at 12.30 the Home Secretary was due to address the Police Federation—which is certainly a body with interest and expertise in this field. I see nothing inappropriate in the Home Secretary wishing to inform it of his current thinking. I stress, it is a response to consultation.

The noble Lord asked specific, more detailed questions about figures. The figures are still being worked on. I think that the savings may well be rather greater than he mentioned. It would be inappropriate for me to speculate on savings, but they are likely to be significant.

I would not wish to overlook the serious problem—I had intended to refer to it but the noble Lord, Lord Elton, with his invariable courtesy, has given me notice—of whether or not this new scheme of things, if it is approved in another place, would attack the very serious problem of remand prisoners awaiting trial. I visit prisons every week. A constant, recurring theme is how badly we treat remand prisoners; how long a time they wait for trial, normally in the Crown Court; and how their presence in the prison regime distorts the good work of rehabilitation, education and training on which the Prison Service should be focusing. Despite time limits, there are lengthy delays for some people awaiting trial at a Crown Court. If, as the figures demonstrate, a large number of people elect trial in the Crown Court only then to plead guilty, is it not fair to ask with an open mind why they elected trial in the first place? On the basis of evidence and experience, I have no doubt that many people elect trial in the Crown Court to put off the evil day. That is partly because they do not want to come to a finally concluded view on sentence. In many cases, it is an attempt to manipulate the system, hoping that the victims, complainants or witnesses will not bother to turn up or that their memories after so long a period—many months in many cases—will have faded. I have never found a satisfactory explanation for people electing to be tried in the Crown Court and, many months later, having made that expensive election, simply pleading guilty.

I am bound to say that when this proposal was originally floated there was considerable concern about it. I want to reiterate what has been built in by way of safeguards. First, the magistrates come to their conclusion, but they do so bearing mind certain indicative tests that will be provided for them. They have to listen to both sides and the representations made. Thereafter, if the proposal is accepted, there will be a right of appeal to the Crown Court judge who will be able to come to his own conclusion. I am not so dismal about the quality of the Crown Court judiciary as the noble Lord, Lord Cope, appears to be in thinking that they will not approach these matters with a fresh mind.

I am well aware of the points made by the noble Lord, Lord Dholakia, which have virtue and value. Certainly, representatives of some ethnic minority groups are deeply concerned. The noble Lord pointed out that representations have been made by the Law Society and, it was said, in an open-minded way, even by those belonging to my former profession. But even when I was chairman of the Bar I never believed that we had a monopoly on all virtue. Occasionally, when the poachers take over a bit of the gamekeeping, they recognise some of the poachers' devices.

It is true that some people opposed change. Many favoured it: the Magistrates' Association; the Association of Chief Police Officers; the Justices' Clerks' Society; the Crown Prosecution Service; Sir lain Glidewell, who carried out what most people thought was a masterly review, extremely critical in many ways of the then experience of the Crown Prosecution Service; Customs and Excise; the Royal College of Psychiatrists; and a number of judges. I come not least—I deliberately mention him at the end in order to give him due regard— to the Lord Chief Justice. I do not think it can be seriously suggested in this House that the Lord Chief Justice has not been the most diligent, careful examiner of proposals for reform in the criminal justice system.

We hope that there will be savings, and not simply financial—although they are extremely important, particularly when resources are strained. But one has to bear in mind the effect of delay on witnesses. Delay pollutes the system. It alienates many people from the system. They are so disappointed, fundamentally and deeply hurt, by the delays that the Crown Court system sometimes inflicts upon them.

I repeat that this was a change in the law as recently as 1855. There is nothing fundamental about the alleged right which is claimed. It seems to me that if the magistrates approach their duties in the way that I have indicated, subject to the right of appeal to the Crown Court on venue, subject to the further automatic right which your Lordships know exists for appeal to the Crown Court against conviction and/or sentence, those are reasonable safeguards.

I believe that I have answered the questions put to me. I should repeat, in answer to the noble Lord, Lord Dholakia, that this proposal is not based simply on finance. When one addresses pressure in the system and the question of resources and consequences, one should not forget victims, complainants and witnesses. The Crown Court system is significantly more expensive than the magistracy—not simply because members of the magistracy are volunteers and Crown Court judges are paid. Given the expense of running a Crown Court trial with jurors—and alternates in effect, in case of illness on the first day—and the whole panoply of running the system, one is entitled to ask in many cases, particularly when the election is resiled from, whether we have got matters right. I do not believe that we have. In due time, when the Bill comes before the House, I hope that it will be given favourable scrutiny—proper, but open-minded scrutiny.

7.4 p.m.

Lord Renton

My Lords, I assume that primary legislation will be needed to implement these proposals. When will it be introduced?

Lord Williams of Mostyn

The noble Lord is absolutely right on his first proposition. I simply say, as I did in reading out Mr. O'Brien's answer: when parliamentary time allows. In a sense I am not in a position to judge that. We have just completed the seventh day in Committee on the House of Lords Bill. This is an important and self-contained reform. Giving a hostage to fortune, it should not take too long in this House.

Lord Simon of Glaisdale

My Lords, this is a very important constitutional matter. Will the appeal be by way of re-hearing, as it was to the old Court of Session, or will it be, as the noble Lord, Lord Cope, suggested, a re view of discretion, which will be interfered with only if it is plainly wrong?

Lord Williams of Mostyn

My Lords, there are two types of appeal to which I have referred. Appeal against conviction is by way of re-hearing. Our minds are working on the precise details of the Bill, which I stress are a long way away. I believe that we need to give very careful attention to the point: is this a review of the merits or simply a review of the exercise of discretion? Whichever it turns out to be, it does not seem to me to be an exercise that need take a qualified judge very long.

Lord Elton

My Lords, as one who moved an amendment to bring in this change in regard to a rather narrow range of offences—namely, the handling of goods with a value of under £100—almost exactly nine years ago, I cannot object to the proposal as strongly, or indeed at all, as my noble friend has from the Front Bench.

I endorse the Minister's remarks about the effects on the prison system, which is what originally drew my interest. There is a very low acquittal rate among those who elect for jury trial. The waiting time in remand wings is pretty lengthy, and that time counts against the time of the sentence when awarded. Is it not therefore the case that there is a strong motivation to elect for trial by jury because a proportion, perhaps a substantial proportion, of the time served will be served with all the privileges that go with an unconvicted prisoner? Incidentally, there is a very much heavier burden per prisoner on prison officers than there is for sentence prisoners who do not have those privileges. Will not the consequence be a release of Prison Service resources to the proper care of sentence prisoners and the proper rehabilitation, aided by greater time out of cell? I ask all these questions in order to bring to the notice of my noble friend and others who have objected in the past to this proposal that there are considerable benefits to be gained in the operation, as well as the cost, of the Prison Service and in its small, but valuable, attempts to rehabilitate prisoners.

Lord Williams of Mostyn

My Lords, I agree with a significant part of the noble Lord's remarks: namely, that the Prison Service ought fundamentally to be devoted to the tasks that he identified. If the noble Lord had asked me that question 20 years ago, I would have tended to agree that there was the inducement for people to stay on remand because they had a more agreeable life than they would post-conviction. Alas, my experience these days is that for many remand prisoners, not all, life in prison is a good deal less attractive than it is for those who have been convicted, one of the points made by the noble Lord being the time spent out of cell. There is also positive fruitful activity and something by way of rehabilitation. It may well be true that to sit and languish, idle, in the remand system may be attractive to some. If it is, that is a very good reason for not allowing them to languish in the remand system. It is in my opinion, and that of many governors and members of the Prison Officers' Association, a distortion of the regime that we ought to be providing.

I apologise to the noble Lord, Lord Cope, for not dealing with the specific point regarding corpus juris. This is not related in any way to the proposals— I underline that word—for corpus juris, which essentially deal with fraud in the context of the European Union.

Lord Ackner

My Lords, I am in no way briefed by the Lord Chief Justice, but I am bound to say that if I was I would be very irritated at the Government's picking and choosing when to use the Lord Chief Justice. At considerable cost to himself by way of time, the Lord Chief Justice attended this House on two or three occasions recently to deal with the subject of vulnerable witnesses. Having spelt out guidelines in the Court of Appeal to stop any repetition of the abuse of cross-examination of complainants in rape cases, and having supported strongly the proposal to delete from the Bill the embargo placed by the Government on cross-examination, he was ignored. The same applied in the same Bill to questions that could be asked of the complainant. He put forward the view that this was quite wrong; it was an undesirable interference with the discretion of the judge. He was ignored. But now he is produced because he happens to say what the Government wish. That is all I say on that point.

I should like to inquire about the costs which will be saved. If it is entirely a re-hearing as to whether or not the trial should take place before the justices or in the Crown Court, given that it is a re-hearing against any conviction which means a new trial—not the ordinary situation of an appeal—will there be any saving? I do not know what assumption the Government have made about the frequency of appeals against conviction to the Crown Court. I would have thought that, almost inevitably, first offenders, who now normally opt for the Crown Court, would appeal to that court if convicted. I do not know to what extent this has been considered.

As the Minister well knows, about 20 years ago an interdepartmental committee under the chairmanship of the right honourable Lord Justice James considered this very question. In paragraph 61 of its report it said: The existing right to elect trial by jury is so long established in our criminal justice system and valued so highly that its total abrogation requires very compelling reasons. We doubt whether such a radical change would be sufficiently acceptable to public and professional opinion to enable it to be implemented. We go further. In our view there is a real danger that the total removal of the present right of election would undermine the trust and support which the criminal justice system at present commands among the general public. I do not know to what extent consideration has been given to that view or to the point favoured by that committee that consideration should be given to removing cases from the ambit of the Crown Court and reclassifying the less serious offences so that they are not triable both ways. Paragraph 16 of the report of the Royal Commission stated: One way of removing cases from the ambit of the Crown Court would be to reclassify the less serious offences as triable summarily only. We have not regarded the task of identifying the offences concerned as falling within our remit". I suggest that there is a lot of reconsideration by the Government yet to take place, and I invite them to do so.

Lord Williams of Mostyn

My Lords, I am well familiar with the report produced by the committee under the chairmanship of Lord Justice James. I remember the fairly heated discussion at the time about his recommendations. My recollection, which may be wrong, is that in certain cases of theft he wanted the automatic right to jury trial removed altogether. There was a good deal of public disquiet, if I remember rightly. We do not suggest that in cases of theft the right should be taken away altogether but that the magistrates will hear the propositions put by the Crown in the form of the Crown Prosecution Service and representations made by or on behalf of the defendant and come to a conclusion. We then build in the safeguard of a right of appeal to the Crown Court judge on venue. I do not believe that, on whatever basis the right of appeal in the Crown Court is conducted, it needs to be a very long exercise; it is a perfectly straightforward, simple one.

Things are not set in stone. Your Lordships will remember the introduction of the breathalyser provisions and the right to trial by jury. I remember that with perfect satisfaction and happiness because it kept many of us going in south and west Wales for many years running completely bogus defences—I can say this now—about whether the policeman was wearing his cap and, if not, whether it constituted full uniform. Eventually, the right to elect trial in breathalyser cases was wholly removed and transferred to the magistracy. One cannot set these matters in stone; one must take a sensible balance and build in judicial safeguards.

I do not believe it is fair to say that the Lord Chief Justice has been abused. I went to a good deal of trouble in your Lordships' House to explain why we had not ignored him but had come to a different conclusion. Am I not reasonably entitled by way of help and accurate background to point out to noble Lords who say, perfectly properly, that so and so is against it that there are others who support it, not least the Lord Chief Justice?

Viscount Colville of Culross

My Lords, the noble Lord, Lord Cope, suggested that when it came to the appeal on venue, not against conviction and sentence, the Crown Court judge might simply follow the line taken by the magistrates. Is the Minister aware of any statistics available now, or by the time the legislation is introduced, to indicate the results of what I believe to be an analogous situation? Recently, a situation was introduced whereby, against set criteria under the Bail Act, there could be an appeal to the Crown Court against the grant of bail by magistrates. The Crown Court then has to use the set down criteria in order to decide whether or not to uphold the magistrates on the matter. That seems to me an entirely similar exercise. If, by the time we reach legislation, there is any indication about how satisfactory that exercise of appellate jurisdiction has been, it may be helpful to all concerned.

Lord Williams of Mostyn

My Lords, I am most grateful to the noble Viscount, particularly given his vast experience of these matters as a judge. I am well familiar with the Bail (Amendment) Act. It was my noble friend Lord Mishcon and I who were able to persuade the then Home Office Minister, Mr. Maclean, that that right of appeal was required. I have no statistics but I shall search out such as there are. My impression, which I recognise is a fallible one, is that there have been relatively few prosecution appeals against the grant of bail. I shall certainly research the point.

Viscount Brentford

My Lords, first, can the noble Lord say whether research shows that for similar offences the county court imposes a different penalty from that imposed by magistrates in the cases which are being discussed? Secondly, I strongly endorse any steps to reduce the length of time prisoners are kept on remand. I have a vivid picture of two young men lying face down on their beds and the governor saying that they were remand prisoners, that they did not have to do anything and they had refused to do anything. It is very important to encourage rehabilitation as soon as possible, and I would therefore favour that situation. Will there be a substantial reduction in remand time and will other moves that are afoot also reduce time spent in remand?

Lord Williams of Mostyn

My Lords, I have no doubt that there should be a significant reduction in remand time because many serious delays are in Crown Court trials. There are other aspects of this matter, and I am conscious that here I am trespassing into the territory of the Lord Chancellor, but all judges and magistrates have to be absolutely scrupulous when they make bail decisions. For our part, in the Home Office, we have to be certain that bail support schemes are universally available, or on a generally equivalent basis, and that bail hostels are available and that the places in them are properly used.

The general evidence is that Crown Court sentences are heavier than those in the magistrates' courts for generally equivalent offences.