Criminal Justice (Mode of Trial) Bill [H.L.]

HL Deb 20 January 2000 vol 608 cc1246-98

3.38 p.m.

The Attorney-General (Lord Williams of Mostyn)

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Lord Williams of Mostyn.)

On Question, Motion agreed to.

House in Committee accordingly.

[THE CHAIRMAN OF COMMITTEES IN THE CHAIR.]

Clause 1 [Determination of mode of trial]:

Lord Cope of Berkeley moved Amendment No. 1: Page 1, line 9, at end insert ("and on the application of the accused, shall order that he be tried on indictment").

The noble Lord said: Amendment No. 1 stands in my name and those of the noble Lord, Lord Thomas of Gresford, the noble and learned Lord, Lord Ackner, and the noble Baroness, Lady Kennedy of The Shaws. The amendments grouped with Amendment No. 1 are consequential.

As the Committee will be aware, this amendment concerns the key issue of the Bill. It concerns whether the accused is still to have the choice of a jury trial in so-called "either-way" cases. Murder and serious crimes of that kind are always tried in the Crown Court. Motoring offences and small crimes are always tried by magistrates, but in the middle are the so-called "either-way" cases, such as grievous bodily harm, forgery, violent disorder, affray, drugs offences, theft, burglary and a whole list of other offences. We believe that removing the long-standing right I have mentioned will damage confidence in the criminal justice system, particularly among young people and our ethnic minorities who cannot so readily identify with a bench of magistrates as they can with a jury.

The Government's argument that it will cut delays does not stand up to examination. Professor Lee Bridges, a noted authority, called this Bill a "delayer's charter". If the new absolute rights of appeal against both venue and conviction are used by a defendant who wants to defend his or her innocence to the very end—or, for that matter, by a defendant who seeks to abuse the system—the delay will be at least as long, and the strain on victims and other witnesses will be greater from more appearances in court, not less.

The argument about cash savings from the change seems much less powerful when one realises that approximately two-thirds of the claimed savings are supposed to be in the Prison Service as a result of an expectation that fewer and shorter prison sentences will result from the Bill.

Later amendments deal with some of the consequences of the change and matters such as whether a housewife, a retired person or a casual worker with poor job prospects should, for that reason alone, have a different trial from someone who is employed with a steady job; and whether—and if so, how—magistrates and judges should, for the first time, consider how important is someone's reputation in deciding whether he or she should have a different mode of trial. There are other amendments to clarify the new appeals system and so on.

Some supporters of the proposed change think that the present system is wrong in principle. The Government do not argue that. Until recently Ministers were vehemently arguing in the opposite direction. Others say that the defendant should never have the choice of venue. If that is so, then we have been wrong since 1855, when broadly the present provisions replaced the automatic trial by jury for offences of the kinds that I have mentioned. I do not accept that we have been wrong.

Ministers say that they do not rely on the cost argument either—but it has become part of the rhetoric. It is a measure of what they expect the effects will be. The Explanatory Notes state that the total cost saving is expected to be £105 million. It is inevitable—I do not complain about it—that that is a highly speculative figure. It is essentially a heap of guesses. It does not appear to allow for legal aid costs, which we understand are to be allowed for appeals against both venue and conviction, and against sentence.

Since Second Reading, the Government have said that £39 million of the £105 million is, taking into account the various pluses and minuses, the net saving in the courts, etc; and £66 million is the expected saving in the costs of the Prison Service, as it is thought that magistrates will pass lighter sentences on those who might otherwise have opted for the Crown Court. In other words, the Government argue that the Bill will mainly save money not on court costs or lawyers' fees but in the prisons. At the same time it is claimed that it will help victims.

However, the costs argument hinges on the delay argument. The claimed reductions in delay have—so far at any rate—been the Minister's main argument. Under the present system there is the preliminary stage, where the magistrate or the defendant can decide whether the case will go to the Crown Court; and then, if the Crown Court is chosen, the case is tried there and guilt or innocence is decided by a jury. Under the proposed new system there will be potentially four stages: first, a hearing before the magistrates, with legal argument about where the case should be heard; secondly, if the magistrates decide to keep the case, the defendant has the right to appeal to the Crown Court and the matter of venue will be argued out there; if the judge agrees with the magistrate, there is, thirdly, the hearing of the case by different magistrates from the first hearing in order to avoid bias; and, if the magistrates decide the defendant is guilty, he or she has the right to appeal and to have a full re-hearing in the Crown Court, before a judge, with all the witnesses called again. So that is four stages to replace the existing system in cases where the defendant protests his or her innocence to the end—or for that matter where someone wishes to spin the procedure out. As far as I can see, there is plenty of work for lawyers there, even if the Bill were passed exactly as it stands.

It is the addition of the extra appeal against venue which has persuaded the Attorney-General that the proposal which he called "madness" is now sanity. The extra appeal weakens the delay argument, and hence the court costs argument, to vanishing point.

So what about the misuse of the existing procedure? The mischief is said to be twofold: first, that old lags heading for prison who intend to plead guilty wish to spend time in custody on remand instead of after conviction; and, secondly, that some guilty people who would be convicted by the magistrates are able to secure not guilty verdicts from gullible juries.

When my right honourable friend Michael Howard was Home Secretary he was concerned about abuse and he considered the proposal now included in the Bill to end the option. But he listened to the clamour against it—including that from the present Home Secretary and the noble and learned Lord the Attorney-General—and did not proceed with the

abolition of that option.

Instead he introduced what is known as "plea before venue". Under that system, defendants can indicate a guilty plea at the start. If they do, they forfeit the option to go to the Crown Court. But there is a discount on the sentence for those who save the courts and the prosecution service time and money by pleading guilty at an early stage in the process, rather than dragging the matter out until the very last minute. The discount reduces the time spent in prison—which is why, of course, the main savings are expected to he in the area of prison expenditure—and we are expected to believe that experienced old lags will delay a plea of guilty in order to spend more time in gaol in total—£66 million-worth of more time in prison.

So far, of course, we do not know the full result of Michael Howard's changes—they have not been in place long enough—but we do know that at the time of the Royal Commission more than 30,000 cases per year elected to go to the Crown Court and that the numbers have fallen progressively to 18,500. It seems, therefore, that the Howard reforms and the discount have gone some way towards dealing with abuse. At the very least it is premature to stop the option and risk damaging confidence in the criminal justice system by abolishing this long-standing right.

So what about the abuse of some criminals being able to escape conviction before a jury—with the help, no doubt, of liberal lawyers. The Home Secretary has been waxing lyrical about them. If the jury system is so fallible, it seems to me that it could be said that we should not use it for important cases such as murder. I do not think that anyone argues that—certainly I do not-but the Home Secretary seems to think that this abuse argument is an argument in favour of the Bill.

He urges us to think more about victims. I am all for greater consideration for victims, but they will not be helped by criminals spending £66 million-worth of less time in prison; nor will they be relieved of strain by having to give their evidence twice over—once to the magistrates and again at the re-hearing in the Crown Court on appeal.

The Attorney-General has produced an argument which effectively says that we ought to pass the Bill unamended in the interests of guilty criminals who delay their trials and therefore receive the longer sentences that they would have avoided had they been forced to stay in the magistrates' court. I do not think that is consistent with sympathy for victims either.

I realise that some magistrates are in favour of ending the option. They see the idea that a better trial can be had in the Crown Court as a slur on the magistrates' courts. I do not think that. The Crown Court has a more elaborate procedure—for discovery of documents, for example. Of course, that more elaborate discovery procedure could be reproduced in the magistrates' court, but only at the expense of increasing even further the delays. In fact, it is Ministers who think that magistrates cannot be trusted. Indeed, they were strongly—or to borrow another phrase from the Home Secretary in a different context, violently and aggressively—opposed to this proposal when Michael Howard was Home Secretary and the matter was raised.

The noble and learned Lord the Attorney-General thinks that madness is turned into sanity because magistrates are not to be trusted to have the final say in the trial venue, but a sane judge is. Incidentally, the appeal against venue is not a novel idea of current Ministers, but one that was around long before this Bill was discussed at an earlier stage. As I pointed out at Second Reading, the noble and learned Lord the Attorney-General chose to use the description "madness", not in the middle of a heated exchange, but in an article in a newspaper.

More recently, the right honourable gentleman the Home Secretary has been ranting against some of those who support this amendment. He roundly attacked liberal lawyers, particularly, if I may say so, those who live in the constituency of Miss Glenda Jackson, one of the candidates for mayor of London whom the Labour Party apparently wants defeated. In any case, I can plead not guilty on all three counts: I am not a lawyer, nor a liberal, nor from Hampstead. However, I think that the approach and the language used by the Home Secretary in this matter casts doubt on the validity of his case. Insults are no argument. He is a lawyer and no doubt learned when he trained that it was Cicero who first said, "If you have a weak case, abuse the plaintiff", or words to that effect, in Latin.

The Home Secretary has given no valid reason for his own complete change of view, but he has accused others, who have stuck to their opinion, of hypocrisy. That is interesting. Many different people have stuck to their opposition. If the charge were valid, it would apply not only to lawyers, but also to the ethnic minorities and to groups primarily concerned with justice. I want our criminal justice system to have as much support and acceptance as possible from the whole of our population. In particular, I want to improve support and acceptance of the system among our ethnic minorities. All those who read the Macpherson report on the shocking Lawrence case must want that.

The noble and learned Lord the Attorney-General may say that those who oppose the proposal are wrong in their view that juries are fairer than magistrates, but the fact is that they are not persuaded. In the matter of confidence, it is that which counts. This option, which we are seeking to preserve with this amendment, is an important element in the acceptability of the criminal justice system in England and Wales. If one of us, or for that matter, our children, happened to be accused of a serious crime we did not commit, we should want to have at least the choice of a jury trial. Of course, with our reputations confirmed by membership of this House, we would almost certainly be given that choice under the Bill's reputation clause. However, others would be denied it, and that is the fundamental argument for this amendment.

I should like to make one last point. It may be that because of the coincidence of the timing of this debate and the Wakeham commission's report some people think that we in the House of Lords should not pass this amendment because it is too important a matter. We have been told that we should stand back, hold our noses and leave the decision to another place; that the elected House, with its vast government majority, fiercely controlled, should alone decide. But no one in another place was elected on the basis of the proposition in this Bill. It formed no part of the Labour manifesto. Indeed, at that stage the Labour Party was strongly against the whole idea. So if the matter was even considered by any electors during the last election, Labour was elected to oppose this Bill.

The composition of this House for the time being has been chosen by the Government and by the House during the past year. Every one of us here now is in his place because he has been personally chosen either by a Prime Minister or by the election of fellow hereditary Peers. In due course, perhaps there will be a different second Chamber in the United Kingdom. In the mean time, we must do the duty for which we were selected. Each of us must decide the issue and vote accordingly. I beg to move.

Lord Jenkins of Hillhead

I doubt if I would have taken the time of the Chamber to take part in this debate had not the Home Secretary, in his much publicised "woolly liberal" speech last week, called in aid my action on the 1967 Criminal Justice Bill—a long time ago now—to bring in majority verdicts in criminal trials.

I suppose I should be flattered by the attempt of the Home Secretary to enlist me, because I thought that previously he had regarded me as the epitome of a woolly Hampstead liberal, even though I have never inhabited those salubrious heights and have never been particularly addicted to woolly clothing. However, I am proud to be a liberal, with both a small "1" and a capital "L".

I am, however, afraid that I cannot allow the Home Secretary to claim my endorsement for this ill-conceived little Bill, so directly contrary to everything that he and his spokesmen said in opposition.

The 1967 Act brought in the change to majority verdicts—to 11 to one or at least 10 t o two—without removing anyone's right to trial by jury. It was designed to meet a specific evil for which convincing evidence was accumulating. That evidence showed that in major criminal trials—in particular, but not exclusively, in London—a practice was building up of successfully either corrupting or intimidating one or occasionally two of the most vulnerable or amenable jurors. That resulted in a number of notorious frustrations of justice.

Nor, if I may say so, does this fit in with my general approach to crime during my two periods as Home Secretary. That approach was, and still is, that a strong likelihood of detection and conviction is a better deterrent than the theoretical piling up of horrific punishments.

Even then I did not propose the change without a good deal of careful consultation with those whom I thought had both keen liberal consciences and a closer knowledge of the functioning of the courts than I had myself. I had the firm support of one of the most liberal Lord Chancellors who has ever sat upon the Woolsack, Lord Gardiner. I also consulted my noble friend Lord Hutchinson of Lullington, not then a Member of your Lordships' House, but strongly emerging as the leading defence lawyer in the country. I also tested out the proposition on Mr Michael Foot—to get another angle, as it were. My noble friend Lord Hutchinson was, on balance, in favour. Mr Foot took no strong objection. Perhaps as a result of that careful presentation of the case and those consultations, when the proposal came to be voted upon in your Lordships' House, no more than eight Peers voted against.

The Home Secretary cannot, alas, now consult Lord Gardiner. Indeed, Mr Michael Foot has had other sad preoccupations recently. But if he were able to convert my noble friend Lord Hutchinson of Lullington, if he were able to achieve a position—let us not set it at eight or even 18—where only 80 Members of your Lordships' House were disposed to vote against him, I might consider giving him the benefit of the doubt; but until then, not.

I utterly reject the view that this proposal is in any way the equivalent of my majority verdicts proposal. There is another difference. The Home Secretary called in aid, in a way that I think was intended to be friendly, my willingness to risk for majority verdicts a mounting liberal reputation, as it was put, as Home Secretary. I must say to the Home Secretary. I hope with equal friendliness, that I do not think he is in equal danger. He has not as yet much of a liberal reputation to lose. But there must always be hope for the future. If he will accept the defeat of this measure—if that is the wish of your Lordships—with a good grace, if he will be less grudging on freedom of information, and if he will take less of a knee-jerk Daily Mail attitude to the whole complex question of crime and punishment, then maybe, by the end of this Parliament, his reputation for humane sagacity might begin to gleam a little more brightly.

4 p.m.

Lord Bingham of Cornhill

I owe your Lordships an apology for my absence at the Second Reading of the Bill. I do not flatter myself that I would have stemmed the tide of opinion on that occasion, and I hope it is some mitigation for my offence that I was engaged in the country experiencing the realities of jury trial. But I am very sorry not to have been present. I hope that your Lordships will bear with me for perhaps slightly longer than would ordinarily be acceptable on this occasion.

The procedure of the criminal courts at all levels should be such as will promote the fair disposal of cases, minimise the risk of miscarriages of justice, achieve such expedition and efficiency as is consistent with fairness and command public confidence in the administration of criminal justice. So far, I suspect, there is little argument. The present procedure, which allows a defendant to elect trial by judge and jury on an either-way offence, does not lead to unfairness; it does not lead to miscarriages of justice; and it does not undermine public confidence. There is therefore no imperative need to change the existing procedure on the ground that it fails those important tests. If it did, no doubt the rule would have been changed long ago. But the existing procedure is, I suggest, subject to other weaknesses.

There is a very broad band of offences triable either-way—some very serious, others relatively trivial; some eminently suitable for trial by judge and jury, others, as I would suggest, not. The inevitable result of the present procedure is that some cases, at the election of the defendant, end up before a judge and jury in the Crown Court when they do not merit that mode of trial. This leads to delay, exacerbated, of course, when the defendants plead guilty having reached the Crown Court; it increases congestion in the Crown Courts, which is a very serious problem at a time when serious offenders are having to be released because trials cannot be accommodated before their custody time limits have expired; and it causes considerable expense to the public purse.

I hope that your Lordships will not regard it as unduly anecdotal if I mention one personal experience. On a relatively recent visit to a court outside London, 17 defendants lined up for me to try pleaded guilty on hearing of my impending visit—I think under the impression that I was Lord Goddard. I found myself trying for shoplifting an elderly man, of weak intellect, in poor health, who had more than 60 convictions for that offence. He had really no defence, as the jury concluded. The cost to the public purse of that trial would have run into some thousands of pounds at least. It is open to question whether that is a useful way of spending taxpayers' money and a juror summoned to try such a case might wonder whether his or her time was being sensibly used.

It is clear that any new procedure introduced to remedy these weaknesses must satisfy the tests already mentioned. It must promote the fair disposal of cases; it must minimise the risk of miscarriages; it must achieve such expedition and efficiency as is consistent with fairness; and it must command public confidence. Many of your Lordships are apprehensive that the procedure in the Bill will not meet those criteria. That is not an opinion I share and I hope that the Committee will allow me to say why not.

I take as my starting point two very familiar but indisputable facts. First, over 90 per cent of criminal cases begin and end in the magistrates' courts. Secondly, the summary offences over which magistrates have exclusive jurisdiction—there is no question of a judge and jury—include offences of considerable seriousness. A number were mentioned at the Second Reading debate: keeping a brothel; assaulting a police constable in the execution of his duty; criminal damage up to £5,000; taking a car without authority—offences which may well merit a term of imprisonment or detention. Magistrates have exclusive jurisdiction also over offences such as driving while unfit or breathalyser offences, conviction for which would in all probability spell professional death to most of us in this House. The magistrates' exercise of exclusive jurisdiction in these cases, deciding questions of guilt and sentence, does not arouse anxiety because we have confidence that the magistrates bring to their task the qualities of fairness, open-mindedness, human insight and common sense which commended them for appointment in the first place.

If we are willing, as we are and have been for centuries, to entrust these great responsibilities to magistrates up and down the country—lay and stipendiary, I draw no distinction—it seems to me strange to balk at entrusting to them the power to decide whether, subject to appeal, a case is more fitted for summary trial or trial by judge and jury. I would confidently expect magistrates to decide that question with the same fairness, open-mindedness, human insight and common sense as every other issue which they resolve.

If I should declare an interest as the 29,000th member of the Magistrates' Association—albeit an honorary member—I proudly do so. Members of the Committee who have apprehensions concerning the new proposal no doubt fear that magistrates will seize jurisdiction over cases which ought, in all fairness, to be tried by judge and jury. I suggest that that fear is misplaced. Of the either-way offences now tried in the Crown Court, a majority are there because the magistrates declined jurisdiction. Of those committed to the Crown Court for sentence, a majority receive a sentence which the magistrates themselves could have imposed.

The truth is that magistrates have shown themselves to be respectful, even deferential towards the Crown Court, readily recognising that there are cases which more properly belong there.

However, throughout discussion of the matter I have thought it essential that there should be a right of appeal for any defendant denied trial by judge and jury in an either-way case. My reasons may be obvious; they are certainly simple. The possibility of review concentrates the mind and improves the quality of decision-making. It is a safeguard against arbitrariness. It will enable the occasional aberrant decision to be corrected. It will cater for borderline cases in which different people can reasonably take different views. As in any other criminal context, I would expect any doubt to be resolved in favour of the defendant.

I attach great importance to the fact that the appeal will lie to nominated circuit judges, all of whom will be strong adherents of jury trial in appropriate cases because I, for my part, have never met a judge who was not.

I am not greatly enamoured of the criteria set out in new Section 19(3)(d) and (e). I respectfully think that it is better to give magistrates and circuit judges a wide and almost undirected discretion. But I see no reason to doubt that if a magistrates' court fails to recognise a case which deserves, for whatever reason, to be tried in the Crown Court before judge and jury, an experienced circuit judge will fail to recognise it too.

I hope that the Committee will bear with me a moment longer. The Committee is entitled to know whether I express a maverick view of my own or whether it represents a wider body of judicial opinion. The question of mode of trial was considered on 22nd October 1998 by the Rose committee, a small group of senior judges concerned with criminal law and practice. Those attending included Lord Justice Rose, the Vice President of the Court of Appeal, Criminal Division, the then senior presiding judge, his successor as senior presiding judge and myself. Mr Justice Mitchell, another member whose knowledge of criminal law and practice is unrivalled in our day, was absent but has expressed full concurrence with the view that we took. It was that the proposed change could be supported if, but only if, the magistrates' decision on jurisdiction were subject to an appeal to a circuit judge, which was not then part of the proposal although since accepted by the Government.

On the basis of that acceptance, I commended the proposal at a dinner given by the Lord Mayor of London for Her Majesty's judges last July. My remarks were heard by some dozens of judges of differing rank, none of whom indicated dissent to me. At a meeting of almost the whole High Court Bench last week—nearly 100 judges, including some former circuit judges—the history was summarised and the issue ventilated. The judges were invited to express views; no one expressed disagreement. I invited any judge who took a different view to write to me if, on reflection, they had doubts or reservations. One judge wrote and one further judge indicated dissent orally. No doubt, in the nature of things, there will be other judges who have unexpressed doubts and reservations. But there seems to be a considerable unanimity of opinion on the topic. I would not be so presumptuous or so arrogant or so unhistorical as to suggest that a large body of judges cannot be wrong. Of course they can and we have no monopoly of wisdom. We fully respect the views of those who disagree.

I hope, however, that the Committee may attach some weight to a body of people with a close and current knowledge of the administration of criminal justice who are, to the last man and woman, very strong supporters of jury trial in appropriate cases. There have been many occasions in the past when the judges have been united or almost so in resisting change. It is difficult to think of cases where they have been as much of one mind in approving it.

4.15 p.m.

Lord Hutchinson of Lullington

Before the noble and learned Lord sits down, will he help the Committee on this matter? The general view of the Government which appears in the Bill is that if a person's reputation or employment is in danger, they should be entitled to trial by jury. If that is so, does it not me an that the view is that they will have a fairer trial before a judge and jury than before the magistrates? There will be less chance of a miscarriage of justice when the matter is of such serious import.

The noble and learned Lord's predecessor was against that suggestion on the ground that the implication would necessarily be that there would be two tiers of justice. That would be against the fundamental principle of equality before the law.

Lord Bingham of Cornhill

I respond in three ways. First, the suggestion which was criticised by my noble and learned predecessor contained no right of appeal. I hope I have made it plain that I attach some importance to that ingredient. Secondly, I hope that anyone who heard what I said will be left in no doubt whatever that I draw no distinction between the fairness of trial at the two levels.

However, I recognise that perceptions matter in these cases. There are instances where it will be important, from the defendant's perception of such matters, that he should be entitled to challenge the evidence of the policeman, or whatever it is, before a jury. That is the kind of consideration to which magistrates and circuit judges will pay attention. I hope that the noble Lord will recall that I expressed a lack of affection for the criteria set out in the proposed Clause 19.

Lord Lipsey

I cannot begin to match the depth of expertise with which the noble and learned Lord, Lord Bingham of Cornhill, addressed the Committee. In part I rise for that reason. I am not a lawyer. I became interested in this subject only when I read the Second Reading debate and noted the degree to which it had been dominated by the perspective of the lawyer. Lawyers are enormously wise, learned and important people and bring a huge amount of expertise to the deliberations of this Chamber. However, theirs is not the only perspective in these matters. When I decided to become involved I amassed the largest pile of papers on the subject and went into my room at home. I asked myself what view I would take if, with a towel round my head, I sought to write a leader for a serious newspaper, assuming any still exist. Would I believe that the Government were right or wrong in this matter? As far as I could, I dismissed from my mind the fact that I supported the Government. When I have written leaders in the past I have found the ratio to be 51:49. However, in this case I believe that the case for the Government's proposal is overwhelming, not from the perspective of loyalty but from the wider perspective which I intend to place before the Committee.

I spent many hours of joyful discussion with the noble Lord, Lord Jenkins of Hillhead, in his Royal Commission on Electoral Reform. Following his wise lead, we were in agreement perhaps 95 per cent of time. I agree with the noble Lord that there is no exact analogy between the changes to the jury system under this Bill and those made in the past, particularly those related to majority verdicts. But the point goes wider than that. We all agree that jury trial is the jewel in the crown of the British judicial system, but like all jewels it can become battered and require repolishing from time to time. There have been changes. The introduction of this right in 1855 was itself a change. In addition, there were changes to remove the right to peremptory challenge and to allow majority verdicts. Once upon a time, if one was prosecuted under the breathalyser law one would go off to court and, with any luck, find other boozers on the jury who would acquit. We stopped the right to jury trial on that charge. Therefore, while this is the jewel in the crown, can we make it shine still more brightly?

The second perspective that I bring to the debate is that I am an economist. The noble Lord, Lord Roll. may agree that economists do not tend to see life in terms of absolute good and absolute bad. We tend to look at trade-offs, for better or for ill. Justice is an extraordinarily important matter but it is not the only one to be embraced at any price. We could quite easily spend the whole of our national income on justice. Everybody could have the right to trial by jury for anything. Everybody's reputation is affected. For some reason I have never committed a parking offence, and I should be deeply disturbed by the effect on my reputation if I found myself in that position. I am proud of that record. However, there is no right to jury trial for that matter. We could all have George Carman to represent us. We could reward the noble Lord, Lord Alexander, and his learned friends more richly for their skills; we could provide legal aid to everyone, irrespective of wealth, so that people who were unfairly charged did not take a hit in their pocket, rather than, as now, provide it just to poor people like the Maxwell brothers. We could spend the whole of our national income on justice. But the money comes from somewhere and a balance must be struck. Whether we think it is better to spend more on other things is a matter of judgment.

The savings that we would forgo by this amendment—I have studied the matter in some detail—are not small beer. The Government's estimate is £100 million. The noble Lord, Lord Cope, believes that that is an over-estimate. I believe it is more likely that the Government's figure is an under-estimate because it leaves out a number of matters; for example, the cost to jurors. Jurors have to sit round for days and are not properly paid or compensated for their loss of earnings. There is also the cost to witnesses who turn up for hearings. Their product is lost thereby. The estimate takes no account of private expenditure and so is a very partial figure. Most importantly, the figure takes no account of non-monetary costs. A rape victim waiting for the hearing of a case may be forced to sit about because other cases have been put down for hearing in that court and may have to spend extra months anxiously wondering about going through the ordeal of giving evidence. That is also a cost.

If we did not have this right would we invent it? It costs us as much as 4,000 nurses or 4,000 teachers. What happens in reality? Ninety per cent of those who take up this option already have a criminal record. They are assumed to be not guilty but they already have a criminal record. Sixty per cent plead guilty at the door of the court. It is striking that after the event one-third say that they regret having done it. It may be that in some cases they are put up to it by their lawyers, who obviously enjoy the process of preparing for the case and no doubt believe that they are doing the best for their clients. However, afterwards some of their clients wish that they had not gone down that path. Obviously, they do not think much of the right either.

Finally, I should like to make a point about the black community. It seems to me that that is the basis of the most powerful argument put forward by opponents of the Bill. It is said that black people do not trust magistrates and that if they cannot opt for jury trial, they will lose confidence in justice. I make two points. First, at least some of them may opt for jury trial in the hope that they will get an "O J Simpson". They hope that there will be enough black jurors who are fundamentally hostile to the criminal justice system.

Noble Lords

No!

Lord Lipsey

If noble Lords opposite do not believe that to be true, they are living in a rather different world from the reality as described to me by the many criminal lawyers with whom I have discussed this matter.

Lord Mishcon

It is not only noble Lords opposite who object; noble Lords on these Benches also object.

Lord Lipsey

The noble Lord was not growling at me at the time and therefore I did not include him. However, I take the point that he makes. I believe that there are people who do that, though they end up gravely disappointed by it. I believe that all black jurors are as fair as white jurors. However, there is a tendency to do that and I do not think that we should encourage it.

Lord Lester of Herne Hill

I yield to no one on the basis of the noble Lord's expertise in economics, but what is the basis of his knowledge of what black people think about the right to trial by jury?

Lord Lipsey

I have many friends in professions such as social work, and others who defend black defendants. I have tried to gather as many sources of information as I can. I bow to the expertise of the noble Lord in this matter. I do not know in how many criminal cases the noble Lord has defended black people in recent times; no doubt he will tell the Committee when he speaks.

More fundamentally, if there is a lack of trust in the magistrates' courts among black people—that may be so—we should change those courts. The Government are now beginning to recruit more black magistrates, and that is the way to tackle the problem. Earlier today the noble Baroness, Lady Kennedy, said that those who were against the Bill were totally illiberal. I shall make a totally liberal point. I am not a Hampstead liberal; I live in Streatham. I should like consideration to be given to the law on soft drugs. Many in the black community believe that it is designed to penalise them and their culture and if it was removed their faith in the criminal justice system would be increased. So that appears to me to be the strongest case for the Bill, but it does not seem to me to be strong enough to carry the day because the savings under this Bill are enormous. They would be forgone if the amendment were passed. Any governing party responsibly looking at delays in the justice system—the party opposite did so when in government, and we are doing so in government—would be bound to introduce a measure of this kind.

4.30 p.m.

The Earl of Onslow

I thank the noble Lord, Lord Lipsey, for adding votes to those who disagree with the Government on the issue. His remarks about "blacks" were disgraceful. I have never previously used that word in this House, and I hope that I never have to use it again.

With immense trepidation, I turn to the noble and learned Lord the Lord Chief Justice. I speak as someone who gained only five O-levels in, I think, 1953. Therefore, to argue with the Lord Chief Justice is a somewhat foolhardy venture but, nevertheless, I shall seek to do so.

The noble and learned Lord opened his remarks by saying that the present system works perfectly well. I think that we all agree with that. The argument is over cost and delay, with some people acting as what used to be called barrack-room lawyers or playing the old soldier. The one appalling fault of the Bill is that it separates justice from one class of person to another. If we say all murder cases should be tried by the head of the Esher Boy Scouts troop, we are making it fair for all murder cases. What we cannot say is that some murder cases may be tried by the head of the Esher Boy Scouts troop and others may not. That is the core fault of the Bill. It is essential that justice is not only seen to be done for all, but is equal for all.

In his maiden speech, the noble and learned Lord, Lord Mayhew, told the story of his wife walking out of a shop with a sack of groceries and forgetting to pay for them. Had she been from a different background and caught, it is possible that the store detective would have said, "We've heard that before; there's no way we're going to let you off". It is equally certain that the magistrate would have said, "She's the sort of person we'll not allow to go down for that".

In the recent case of Jeremy Guscott, it seemed right for that to go to trial by jury. I do not know what the magistrates would have decided in that case, but it had all the characteristics of everything going wrong.

Lord Mackenzie of Framwellgate

Does the noble Earl suggest that, in t he case cited, the wife of the noble and learned Lord, Lord Mayhew, would have received a lesser degree of justice in the magistrates' courts as opposed to a jury trial in the Crown Courts?

The Earl of Onslow

I do not suggest that. I suggest that there is a choice of who goes to the Crown Court and who goes to the magistrates' court. That is the core factor that is wrong with the Bill.

The interesting point about the Government is this. I digress briefly. A Roman emperor went by the name of Romanus Lecapenus. Little was known of his father, except that he was referred to as Theophilact the Unbearable. In Wales, individuals are called Jones the smithy, and so on. Therefore I am almost tempted to call the noble and learned Lord the Attorney-General "Gareth the Procurer" because he has managed to put the noble Baroness, Lady Kennedy of The Shaws, to bed with my noble and learned friend Lord Mayhew. It is impossible to have a broader coalition than that. Because my mind is mischievous, I suggest that had the noble and learned Lord the Attorney-General been in opposition, it would have been three in a bed.

Baroness Mallallieu

I have no doubt that the motives of the Government in introducing the Bill in its present form are good. To try to save money in the criminal justice system is laudable, provided, of course, that it is not at the expense of the quality of justice which the system can deliver. It is also desirable, from everyone's point of view, that delay is reduced to the minimum for both witnesses and the accused. It is also right to try to reduce the prison population for those on remand in custody and those sentenced to longer terms than are necessary. Yet I cannot support the Government over this measure and I shall support the amendment.

As a criminal lawyer of 30 years, my day job is the conduct of criminal trials, mainly in the Crown Court, but occasionally still before magistrates. Magistrates have changed immensely for the better over the years in which I have practised. They are better trained. They are drawn from a wider range of backgrounds. They are no longer all middle class, middle aged and white. Gone, indeed, are the glaring examples of bias and unfairness which I remember from my early years, such as the chairman of one of the West London Benches who was heard to say to a defendant, "We think there is a doubt in this case but you're not having the benefit of it".

Most of those who appear before our courts today are young men. There are very few young men on the Bench. Despite every encouragement there are still relatively few representatives of the ethnic minorities on the Bench, and still fewer from poor or depraved backgrounds. Most magistrates inhabit a different world from those who appear before them. It is not surprising, therefore, that, given the choice, a defendant will say, "I want my case to be tried by people like me; people who will understand my language; people who will understand the situation I was in because they, or their families, have had similar experiences"—and that means a jury, not a stipendiary magistrate, a trained lawyer, or even lay justices.

The truth is that the jury system has the confidence of ordinary people because they believe that it is the fairest system of trial. If I were accused of an offence which I had not committed I would want to be tried by a jury if at all possible, and I would know that I would have a substantially higher chance of being found not guilty. I would want 12 minds to look at the evidence and 12 fresh minds, not one, two or three people who had already heard many similar cases. As a lawyer, that is the advice I would give in almost every case where I considered my client had a good defence.

There is also the strong public perception—I accept that it may not be true—that you are likely to get a fairer trial before a jury than before magistrates; and public perception cannot be disregarded in relation to public confidence in the judicial system.

The fundamental flaw in the Bill, as the noble Earl, Lord Onslow, said, is that it proposes to seek to award trial by jury as a prize only to those who the court decides are persons of standing, reputation, substance and in employment—in other words, only those who the court considers have a lifestyle, a history or prospects which justify it, and to award them one system of justice, and to the others, to those whom the court regards as of little or no account, a second, lesser system.

Equality before the law is a principle which I believe should never be sacrificed if we can possibly avoid it. We would all, I think, agree that one law for the rich and one for the poor is wrong. But so, surely, is one mode of trial for the deserving and another for those of little consequence. That is just as wrong.

A distinction as to the mode of trial is properly made by Parliament in accordance with the nature of the offence. Parliament has already decided that many offences—some of them, as the noble and learned Lord the Lord Chief Justice said, with serious consequences for the convicted—should not qualify for jury trial. But the Bill proposes to make that distinction, not according to the type of offence to apply equally to all those charged with it, but according to the nature of the accused person; who or what he is. That is my fundamental objection, but it is not my only concern.

Concern has rightly been expressed for witnesses, but I am troubled that witnesses, far from benefiting from the changes, may find that quite the reverse is true. At present, a witness goes to the Crown Court to give evidence only once unless there are exceptional circumstances. If the Bill became law, it would see an increase in witnesses having to go through the whole process twice because there is an automatic right of appeal by way of a complete re-hearing in the Crown Court afterwards with no leave being required, as it is on appeal from the Crown Court. As the noble Lord, Lord Cope, said, it replaces two steps, one of them a short and simple one, with four steps, two of which will undoubtedly require argument and possibly evidence, and two of which will involve a complete hearing.

A reduction in the prison population could be far more effectively brought about by strong guidelines to magistrates in relation to discounts in sentencing for those with whom they deal and, possibly, by consideration of some restrictions on the right of magistrates to commit for trial those who have either pleaded or been tried before them. It seems to me a great pity that just at a time when Lord Justice Auld is about to start on a review of the whole system of criminal justice, that matter has not as yet been included. I hope that it will be.

My noble and learned friend Lord Williams may be right in saying—as may be my noble friend Lord Lipsey—that that measure would result in a reduction in costs, but I believe that such a reduction would be at a cost to the quality of justice and public confidence in it, which is a far greater price to pay. I was sent to the House specifically that I might speak on criminal justice matters. Had I not spoken as I have today—it gives me no pleasure to speak in opposition to my Government—I feel that I should not have fulfilled the terms of the oath that I took when I came here.

4.45 p.m.

Earl Russell

I listened with interested to the noble Lord, Lord Lipsey. I take the point that he makes about absolutes. I take the point the point that he makes about considering costs. Those are real questions, but when they are posed, I listen with care to hear what overwhelming argument is put into the other side of the scale; to hear what reason is given for sacrificing things to which—I believe that it is common ground—many noble Lords on all sides of the House are attached.

It is precisely on the ground of the overwhelming justification of the measure that I found the Government's arguments so far wanting. I heard an argument about cost, which is conjectural. The noble Lord, Lord Cope of Berkeley, has said many things about it which I find persuasive. I should be interested, if we are to hear more of it, to hear exactly how those costings are put together. How much is assumed to be the cost of each Crown Court case? How much is assumed to be the cost of each magistrates' court case? Like the noble Lord, Lord Lipsey, I speak as one who is not a lawyer; as one who is interested only in the conduct of justice.

I heard also an argument about delay, which again is a real argument although it is not an insuperable argument. Again, having listened to the noble Lord, Lord Cope of Berkeley, I believe that the argument about delay is at best conjectural. I have not heard in any clear form an argument that the Bill will in any way improve the quality of justice. We can make that assumption only if we assume that an increased rate of conviction involves better justice. I find that argument extremely difficult to reconcile with the presumption of innocence. I understand that many of those who at present elect for trial by jury have previous convictions. The question is on what side of the argument that evidence points. I accept that people with previous convictions may be more likely to be guilty, but they are also more likely to be wrongly accused. They too have rights and their rights must rest in a presumption of innocence until their case is heard.

The noble Lord, Lord Lipsey, touched on the point—which we have heard before—that 60 per cent of defendants who elect for trial in the Crown Court plead guilty. First, the statistical base of that study is flawed. It rests on the study of those convicted in Crown Courts—not of those tried in Crown Courts, but those convicted. Therefore, it immediately takes the 40 per cent of acquittals out of the equation. That alone changes the evidence very considerably indeed. Secondly, it leaves out all those who plead guilty on a lesser charge than that of which they were originally accused. It has been argued by many people who know much more about the criminal justice system than I do that there is, especially in relation to ethnic minorities, a consistent overcharging at many stages of the judicial process. The process of putting that right may well lead to pleas of guilty on a lesser charge, but that may actually be the doing of justice which, without the possibility of a full hearing at the Crown Court, might not have been done.

The noble Lord, Lord Lipsey, touched also on the question of whether black defendants are more likely to be convicted than white. I recently listened to Mr Imran Khan, solicitor to the Lawrence family, discussing precisely that question on "Newsnight". He was entirely certain that black defendants face a greater prospect of conviction unless they have the chance of hearing by a jury. First, Mr Imran Khan's livelihood depends on giving correct advice to his clients on precisely that question. Secondly, many of those who have disbelieved Mr Imran Khan have lived to regret it. Here we reach the point most vitally conceded by the noble and learned Lord, Lord Bingham of Cornhill, in reply to my noble friend Lord Hutchinson of Lullington. The noble and learned Lord conceded that there may be a perception that jury trial is the fairer, even if that perception may not be justified by the facts.

That was a vital concession, because we are concerned here rot only with the actual doing of justice, but with what is perhaps of equal importance: the reputation of the criminal justice system itself. It is not only defendants who enjoy a reputation. If the public do not believe that most of those convicted in court are guilty, the force of the condemnation in court itself is greatly diminished. As the Earl of Strafford remarked in 1637, A prince that loseth the force and example of his punishments loseth withal the greatest part of his dominion". Here I return to the point about black defendants. A great many black defendants believe that where they are heard by a jury, their own community is involved in the process. It is precisely that sense of being involved in the process which the jury system gives us. It is that which leads, in a great many cases, to a consent being given to a condemnation by a jury which would not have been given to a condemnation by a magistrate, even if that condemnation were in fact justified.

What we are dealing with in this Bill is more than simply justice, big though that is. It is the interaction between government and the governed. Since Second Reading I have received a paper prepared under the chairmanship of the noble Lord, Lord Warner. It is the paper of a committee appointed by the Government and reporting on the need to involve citizens in the activities of their community. I congratulate the noble Lord, Lord Warner. The paper is extremely impressive. I go along with the whole of its argument. The need for interaction between government and citizen and the need for involvement in the sense of community by participation are vital to government by consent. I agree with all that the noble Lord says about the need to encourage it.

But if these are our priorities, why throw away, or even diminish, an involvement of the citizen in a process of justice which is perhaps the longest lasting such form of participation we have? I shall not go on about Magna Carta. The noble and learned Lord the Attorney-General is right in saying that it has nothing to do with the present argument. But the participation of subjects in juries is a great deal older than Magna Carta; it has gone on for over a thousand years. To have continued for that length of time and to have aroused the enthusiasm shown for it by the noble and learned Lord, Lord Ackner, and the noble Baroness, Lady Kennedy of The Shaws, there must be something to be said for such a system.

Lord Shore of Stepney

Perhaps I may also say a word about what my noble friend described as the jewel in the crown of our legal system. Trial by jury is indeed just that. Because it is so, we need very powerful arguments indeed to persuade us that we should diminish access to trial by jury to our fellow citizens. I do not say that my mind is wholly made up even now. I wish to ask a question or two of my noble and learned friend who is to reply to help me and perhaps others in the Committee to reach a decision.

In our history, trial by jury has contributed enormously to securing justice for our fellow citizens. It has also been a powerful agent leading to law reform. Bad laws have been exposed by jury trial and because juries refused to convict, even against the summing up of learned judges. In the case of stealing sheep and being hanged for it, the law was changed to the great benefit of this country.

Some of the proposed changes are entirely marginal. I do not wish to be over-rigid about this but we are not including possible categories of offence which, although small in themselves, nevertheless carry heavy political weight. To make the issue more urgent and contemporary than it might otherwise be, I say this. There is a flood of legislation coming, not from this House and this Parliament, but from authorities across the Channel in Brussels that affects the rights of our citizens and in respect of which they incur penalties if the legislation is disobeyed.

An almost classic case of what I consider to be abuse of legislative power by Brussels is the compulsory change of units of measurement of goods sold by fruit and vegetable retailers and butchers. They are compelled to show and sell units in metric measures from 1st January this year. Whatever the merit of that may be, it is not a proper subject for penalty and law enforcement in this country. It seems to me that the splendid butcher who has already announced that he will contest it must be assured of the right of jury trial so that the attention of the media, Parliament and everyone can be focused on this outrage to our system of self-government in this country.

Lord Alexander of Weedon

I do not see any part of this Bill as marginal. It is not only the noble Baroness, Lady Kennedy of The Shaws, who has described it as "illiberal." No less than an editorial in the Financial Times, in measured terms, said last week: Jack Straw's Bill to remove the right to a trial by jury is a thoroughly illiberal measure that should be thrown out by both Houses of Parliament". I indicated at Second Reading that I would have been prepared to reject it then had there been a Division. The Bill is flawed in principle. I do not see that it is capable of being sensibly amended. In saying that I speak also as chairman of Justice, the all-party law reform group, which has been consistently against this measure whether floated by the previous government or actively introduced by this Government.

At Second Reading, government spokesmen were keen to point out the expense and anomaly involved if someone, say, with 10 previous convictions, was charged with stealing a Mars bar or a banana from a supermarket and elected trial by jury. But my noble and learned friend Lord Mayhew of Twysden, reminded us of a different position by drawing attention to the range of quite serious charges where the right of election exists. They include serious assaults such as grievous bodily harm, indecent assault, burglary, theft, false accounting, forgery, serious drugs offences and so forth. This Bill would represent a marked and clear interference with the right of the defendant—I emphasise the word "right"—to elect trial by jury in cases of that kind.

Nor am I impressed by the suggestion that there is widespread abuse that needs to be cured when we bear in mind that the defendant elects trial by jury in rather less than 5 per cent of cases triable either way. I have looked carefully at the arguments since Second Reading. The noble and learned Lord the Attorney-General, with his typical courtesy, wrote to my noble friend Lord Cope and put forward arguments in rebuttal, he suggests, of those advanced at Second Reading. He said that there would be no change to the way in which serious cases were handled. They would be directed to the Crown Court. How do we know? There is no such mandatory requirement in the Bill. Who is to judge what is serious, and what is not, to the defendant? I would prefer the present position where it is the defendant, on advice, and not magistrates, who decides whether an issue is serious enough for him or her to undergo what is the traumatic and anxious experience of a jury trial.

Since Second Reading the Government have sought to bolster their argument in a somewhat astonishing way to which my noble friend Lord Cope drew attention in moving the amendment. They point out that those who elect Crown Court trial are three times more likely to receive a custodial sentence if convicted than those tried by magistrates.

They also point out that custodial sentences imposed by the Crown Courts are two-and-a-half times as long.

In a letter from the noble Lord, Lord Bassam of Brighton, to my noble friend Lord Windlesham on 14th January, it was stated that of the resource saving of £105 million—which, it seems, is estimated with some precision—to flow from the Bill, no less than £66 million will apparently be savings in prison costs. That is because it is said that magistrates will pass less severe sentences than the Crown Courts.

If that disparity in sentencing between the magistrates' courts and the Crown Courts exists, the matter should be addressed, but in quite another way than by taking away the fundamental right of a defendant to elect trial by jury. The Government, in consultation with the judiciary, should analyse whether this, at first sight, concerning disparity is in any way justifiable and, if not, reduce apparent over-sentencing in the Crown Courts. Alternatively, perhaps with the help of their spin doctors, they could advertise the extent of the disparity as a deterrent to defendants exercising their right to trial by jury.

I return to the fundamental point. The Home Secretary is widely respected by many of us for his part, together with the noble and learned Lord the Lord Chancellor, in introducing to this country the Human Rights Act. He does himself no service by the way he argues the Bill. He argues that the opposition comes from lawyers hunting for their fees and from those apparently living in north London and pejoratively labelled "liberal."

My noble friend Lord Cope cited Cicero's axiom as to how one conducted one's case when one had no defence. The Home Secretary is a barrister. When he and I were young and at the Bar, it was not uncommon to be told, "If you have no case, have a dip at your opponent." I suggest that that is what the Home Secretary is doing in this case and that the arguments in support of the Bill are unconvincing. I agree entirely with the noble Baroness, Lady Mallalieu, that it is socially and racially divisive. I agree entirely that the right place for it to be considered is along with criminal justice issues in a wide-ranging study being conducted by Lord Justice Auld. In the meantime, as the Financial Times says and as has been said across this House, this is a thoroughly illiberal measure which should be put out of its misery today.

5 p.m.

Viscount Tenby

I did not speak at Second Reading, bowing to the, alas, increasingly rarely observed convention in this House that one does not speak in a debate if one cannot attend for the duration of the proceedings. Accordingly, with the exception of two noble Lords from the Government Benches and, of course, the noble and learned Lord the Attorney-General, there was no counter at that time to the attacks on the Bill. Fortunately, today, with the distinguished intervention of the noble and learned Lord the Lord Chief Justice, matters have been redressed slightly. There is no way that I could mistake him for the late Lord Goddard. However, from where I stand, he bears a remarkable resemblance to the US Seventh Cavalry!

A good deal of heat was generated at Second Reading, sometimes, one might think on reading Hansard, without the common sense and fairness which characterises debates in this House. I have to say that some of the speeches also displayed a certain lack of perception about what goes on in the lower courts. I do not doubt for one minute the genuine view of those, particularly on the Liberal Democrat Benches, who have been consistent in their opposition to this measure since it was first mooted by a Conservative government and for whom this is a step too far. However, some of the arguments advanced are scarcely sustainable. And since this is a wrecking amendment, which, if successful, may prevent the Bill being discussed in the other place—not a very democratic concept, one might think—I feel that it is only right to put another point of view.

Here, I must declare an interest, both as a magistrate, now on the supplementary list, and as a member of the Magistrates' Association, perhaps number 17,000. In other words, as was said at Second Reading, I would formerly have represented the landowning, mine-owning, brewery-owning class. How things have changed today. Now I can speak for the white, middle-aged, middle-class tendency. Of course, our participation in this debate, which is perhaps permissible on the grounds that we deal with well over 90 per cent of criminal cases tried in this country, seems to have disturbed some noble Lords at Second Reading. For example, the noble Lord, Lord Thomas of Gresford—I hope that he will not mind my mentioning this; we have worked together in the past, and happily so—said in that debate: 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 … It is … an enclosed system with which magistrates on the whole are very pleased. But it is not the envy of the world".—[Official Report, 2/12/99; col. 932.] unlike, presumably, the rest of the British legal system. Well, aficionados of the annual criminal justice Bills over the past 10 years may well have formed a view that others in the legal profession qualify for that assessment as well.

However, I feel that I should correct for the record the noble Lord's assertion, at col. 933: Advice is given in retirement and not in open court". I can testify from personal experience that that assertion is mistaken. In fact, if it had happened in any court with which I had been associated, all hell would have been let loose.

The noble Lord will probably now recall a practice direction from the Lord Chief Justice as long ago as 1981 expressing displeasure at that practice, which admittedly took place in the bad old days chronicled so colourfully by the noble Lord. In any event, the Human Rights Act 1998 will ensure that such practice will be illegal from 1st October this year, and, indeed, that such conduct will be dealt with retrospectively.

Throughout this debate has run the underlying theme that defendants get a better deal in the Crown Courts after a jury trial. However, that is not supported in any meaningful way by the facts, which, in any event, are very difficult to assemble. That is particularly true of defendants from ethnic minorities. Of course, I can speak only for myself, although I suspect that others would admit to similar feelings. One tended to take particular care with ethnic defendants, not only to ensure that they did not feel that the dice were loaded unfairly against them, but also, rather more shamingly from the legal point of view, one was aware that in the world outside people were waiting to pounce on the slightest slip on the part of the court.

It was also said at Second Reacting that because magistrates were largely white, middle-aged and middle-class, they were unable to relate to young people, ethnic minorities and the gay community. We had representatives of all those groups on my Bench. All made, and make, substantial contributions to the work of that Bench.

I turn briefly to the substance of the Bill. In one respect at least agree with its opponents; namely, what the Government no doubt saw as a sop—but a not very successful sop, it must be said—to stifle opposition to it. I believe to be unfortunate the right of appeal to a judge against the decision of magistrates on the grounds of reputation and livelihood. Indeed, if the amendments are unsuccessful today, I have tabled an amendment which will seek to remove those considerations from the magistrates' responsibilities. However, I shall refer to that matter on an if-and-when basis. On the central plank of the Bill, I remain convinced that it is entirely proper and long overdue to remove the right of defendants to be able to choose the trial venue in so-called "each-way" cases.

At Second Reading there was much talk of the effect of the proposal on the reputation of a defendant found guilty in a magistrates' court. But, as the noble and learned Lord the Attorney-General asked so compellingly, what about the effect on the reputation of someone not permitted that choice now, as the law stands? For example, what about a bank manager accused of indecent exposure or fiddling a car tax disc? Those are both summary offences. Is it seriously to be said that the damage to his reputation would be any less grave than if he were to be accused of the theft of a packet of elastic bands from a stationery store? I think not.

Why do those who seek to block this reform not go the logical way about it and include those so-called damaging offences in the each-way net? I shall tell the Committee why not. It is because it would cost a great deal of money, drag out the legal process even more and, in the long run, prove unworkable. So they prefer to preserve an anomaly which has existed only since Victorian times. They cloak that illogicality with scaremongering about the threat to that jewel in the crown of the English legal system—the jury.

There is no doubt that there are a number of persistent offenders who manipulate the system for all it is worth. Mention has been made of the costs involved in that malpractice, but in the totality of government expenditure it is a drop in the ocean. I suggest that far more important is the abuse of time engendered by those dishonourable practices and tactics. The phrase "Justice delayed is justice denied" has been flogged to death. But that does not make it any less of a fact. Those people clog up the system and the wait before trial becomes ever longer. The longer the postponement, the frailer the memory, the less reliable the witness. In this House at least that truth was acknowledged during our discussions on the War Crimes Bill.

What about the victims of the crime and all associated with it in one way or another? Is their anxiety to be prolonged too all because of a knee-jerk reaction to sensible change? I strongly urge Members of the Committee to think very carefully before voting against this Bill. I doubt whether those promoting it can expect much support from the serried ranks of barristers, apart from some notable exceptions among my noble friends.

Earl Russell

Can the noble Viscount tell us how we know which defendants are wasting time before their cases are heard?

Viscount Tenby

It is true that some of them may have been before the courts before and have previously adopted those particular tactics. One finds out from what happens at the end. People are frequently sent to the Crown Court and then one is told that they have changed their plea on the eve of the trial.

Perhaps I may conclude my remarks. The promoters of this Bill cannot expect any support from the serried ranks of barristers, apart from some notable exceptions among my noble friends. But then, as we have been told repeatedly during these discussions, the legal profession has not, in the past, been noted for its eager acceptance of change. So it is down to the rest of us to remove that highly questionable anomaly as we enter the 21st century and roundly defeat these amendments this afternoon.

5.15 p.m.

Lord Mackenzie of Framwellgate

I rise to oppose this amendment not as a lawyer, liberal or otherwise, and certainly not from Hampstead, as the Committee will tell from my accent.

The majority of cases are tried in the magistrates' courts, as we have heard. Some criminal cases must be tried locally. Those to which I wish to draw attention are the quite serious offences for the victim which would be tried in the lower courts—some assaults, taking without consent high-value cars, and serious drinking and driving offences, as we heard from the noble and learned Lord the Lord Chief Justice. Those are not minor offences and they may have a very serious effect on the reputation of the accused if he is convicted. For example, a police officer who is charged with a drink-driving offence would lose his job, and quite rightly so. David Beckham recently lost his driving licence. That was extremely serious for him. Of course, it was restored to him on appeal. Had the policeman accused of careless driving in the accident involving Sheena McDonald been convicted, that would have had serious consequences for him. So let us not run away with the idea that minor offences only are dealt with in the lower courts.

A small minority of cases must be tried by judge and jury, and we have heard the examples of murder, manslaughter, rape and robbery.

This Bill is concerned with those middle-ranking offences, either-way offences. We have heard examples of a bar of chocolate valued at £1 or, indeed, a fraud involving several thousands of pounds from a pension fund. The idea that there is some absolute principle that both cases must be dealt with in the same way because they are offences against Section 1 of the Theft Act in my view is fanciful.

I have not changed my mind. I have always been of the view that there was a good case for reducing the right to trial by jury in those either-way cases. We provide a justice system as a service for the victims of crime. If we focus on victims and on the witnesses—the innocent parties—involved in the criminal justice system, then we shall be persuaded of the correctness of these provisions.

It is right that we should reform the justice system in order to speed up justice, provided—and noble Lords have already addressed this—it maintains the perfectly proper safeguards for those who are wrongly accused. Efficiency and effectiveness should be radically improved so as to enable magistrates and judges to deal with those accused in a more timely fashion. I am sure that no one would disagree with that.

Certainly it is in the interests of victims to speed up justice. I declare an interest as a patron of the North East Victims Association and also as a patron of Kidscape, the children's charity which looks after the interests of abused children.

To castigate these modest proposals as a fundamental attack on civil liberties is totally wrong. Some of the misinformation I have heard on this subject would have done justice to Goebbels. Opponents of these moderate measures are chanting slogans such as, "Jury trial is good but magistrates' trial is bad", which are totally erroneous. Let us kill that fallacy from the outset. The magistrates' system has been with us for some 700 years. As far as I am aware there has been no case before the European Court alleging that it is not a fair tribunal. There is certainly no lack of possible cases because 1.8 million cases are heard annually before magistrates' courts. Only a small proportion of those exercise the right to a rehearing in the Crown Court.

The jury as we know it today does not go back to Magna Carta. It was handed down by that ancient and much-loved British leader Edward Heath in 1972. It was then that the ancient property qualification for sitting on a jury was abolished so that it no longer confined those eligible to sit on a jury to one-quarter of the population who held land above a certain value. Even the modern jury is not a cross-section of society. For example, it is unlikely to include the judiciary, lawyers, CPS staff, court staff, prison staff, police staff, forensic scientists, the clergy, Members and staff of both Houses of Parliament, devolved assemblies as in Wales, members of the Armed Forces, doctors, dentists, nurses, midwives, vets and chemists. All those are examples of good citizens who are either ineligible or may be excused from sitting on a jury as of right. By contrast, a large number of criminal convictions is no bar in many cases.

The jury does have potential disadvantages. Findings of fact cannot be appealed by the Crown, however perverse. Juries never give reasons for their decisions, unlike magistrates. Rulings in favour of the accused, however wrong in law, cannot be appealed by the prosecution. I remind the Committee that it was a jury of his peers who acquitted O. J. Simpson of murder.

Magistrates' courts are doubtless far from perfect. Every sensible Member of this Committee would agree with that. But at least the magistrates are checked for good character and undergo initial training and refresher courses. It is an illusion that magistrates are prosecution-minded. It is a myth; an absurd calumny that no objective observer sitting in a court would conceivably support. Magistrates are justice minded.

Several appeals from the magistrates' court can be made. One can have a complete re-hearing in the Crown Court. There is also an appeal against sentence. One can state a case to the High Court on a point of law, and of course reasons must be given before decisions. I hope I am never mistakenly charged with an offence, but if it was an either- way case, then I would choose a speedy hearing before a local bench, with all the safeguards outlined.

Lord Campbell of Alloway

Before the noble Lord sits down, perhaps I can ask him a simple question. He says that the jury system has disadvantages; he took some pains to explain that. But does he accept that the people of this country trust the juries? Does he accept the point made by his noble friend Lady Mallalieu that it is the public perception of this matter which is of crucial consequence?

Lord Mackenzie of Framwellgate

I agree; that is an important point. The people of this country trust the justice system. To divide it, as the amendment does, and suggest that the magistrates do not provide justice is a dangerous step when 95 per cent of all defendants are dealt with in magistrates' courts.

There is no evidence, as we will hear from the Attorney-General, that there is any discrimination against black defendants. There has been Home Office research which satisfies people on this side of the Chamber of that fact. Often statistics are used in this House rather like a drunk uses a lamp post—more for support than illumination—and I will not go into the range of statistics on the criminal justice system. But for far too long the system has been skewed in favour of guilty defendants, career criminals and repeat offenders and against victims, their relatives, future victims and the law-abiding public.

It is an interesting fact that in the Crown Court there is a risk of receiving a sentence two-and-a-half times longer than in the magistrates' court. That makes one wonder why defendants elect for trial by jury. There must be some other reason. That reason, in my experience as a police officer, is that the longer they can delay the trial, the more likely it is that elderly witnesses will forget evidence or be frightened to give evidence, and it gives them more opportunity to intimidate witnesses. It is not unheard of for jury members to be intimidated. That is something we should certainly bear in mind; juries are "got at".

The truth is that this was a recommendation of the Royal Commission in 1993, with the amendment that there is now a right of appeal, which satisfies most of us that it will provide justice. It is not the magistrates who decide. It can be the Crown Court in the end. It prevents the accused from dictating the venue, as in Scotland and in most other democratic countries. Sixty per cent of defendants, once they arrive at the Crown Court, plead guilty—an absurd waste of money in my judgment. And it is 17 times cheaper to try a case in the magistrates' court.

This provision is backed by the whole of the police service: the Lord Chief Justice supports it, as does the Magistrates' Association and Customs and Excise. Sir kin Glidewell, who reviewed the CPS, was in little doubt that the right to elect trial was being abused. In my judgment this measure is a sensible, moderate modernisation of the criminal justice system, with fair and proper safeguards for those wrongly accused.. The denigration of the magistrates' courts is not in the interests of justice and I ask the Committee to reject the amendment.

Lord Windlesham

Perhaps it is in order to have a voice from these Benches. We have just heard a powerful speech from a government supporter and before that one from the Cross-Benches. It might be equitable for me to speak at this stage, and I hope the noble Lord on the Cross-Benches will allow me to do so.

This is a significant moment in the short life of the reformed House. We should see it in a wider context before we turn to the details of the Bill itself. No one will doubt that the decision we take today is the most important in this Session of Parliament, and in the life of the House as it is now composed. Many thoughtful people, whatever the extent of their participation in politics, will be waiting with some interest to see what the Committee decides on this issue. Will it be a straightforward vote on party lines—the adversarial system which has proved to be so weak a restraint on government policies and actions—or will it be on the merits of an issue that bears so directly on the preservation of individual liberty and the administration of justice?

We have heard several fine speeches, notably that by the noble and learned Lord, Lord Bingham of Cornhill, who speaks with all the authority of the present holder of the high office of Lord Chief Justice of England. But to my mind the issues are not finely balanced. It is not necessary to reject the arguments put forward on the importance of reducing delays, saving money, and eliminating what has been described as the manipulation of the system by seasoned offenders, in order to identify and give priority to the interests of justice.

Ever since the introduction of either-way offences—a classification which has brought about all the present difficulties—it has been a fundamental principle that an accused person should consent to having his case tried summarily by magistrates, provided the magistrates decide that it is a suitable case for their disposal. It is quite wrong, and the Government should neither use the description nor allow their spokesmen to do so, to describe the exercise of such a well-established right as an automatic "veto". That is the term now being used; a veto on the ability of the magistrates to try a case.

The argument that many of those who exercise their right to trial by jury in the Crown Court subsequently plead guilty takes no account of the fact that often charges against them have been reduced before the trial in the Crown Court begins. The noble Earl, Lord Russell, referred to that fact in his own speech. Although the official statistics are subject to qualification, they show that in as many as 26 per cent of assault cases in the Crown Court the charge has been reduced. There are lower figures for the reduction in charges of public order and burglary offences.

I am grateful to the noble Lord, Lord Bassam, and Home Office officials, for the rapid way in which they responded to inquiries from myself and others. I accept that there are qualifications to the statistics. Nevertheless, the fact that in a substantial number of criminal cases in the Crown Court the charge is not the same as the one originally laid in the magistrates' court is of central relevance.

I should like to refer to two other matters, without speaking any longer than necessary. This debate, valuable though it is, has already continued for a length of time. The first concerns the ethnic dimensions to the mode of trial decision. Here again, some statistics have been produced, and we all look forward to hearing the noble Lord, Lord Dholakia, who spoke on this aspect at Second Reading. He has special knowledge, and is listened to with respect on this, as on other, aspects. As has already been accepted in the speech of the noble and learned Lord, Lord Bingham, it is perceptions that matter in considering the views of ethnic minorities. The crucial perception is how the institutions of justice are seen. If policies are formulated that overlook that reality, the result is bound to be flawed.

The second point is that the figures are already going down. The number of accused persons electing to go for trial in the Crown Court declined from 53 per cent in 1987 to 28 per cent in each of the two years, 1997 and 1998— nearly half. So there is already a steady, downward path. The numbers are decreasing, and are likely to decrease still further as the impact of the plea before venue changes becomes more widespread.

I suggest to your Lordships that what we are considering today is a profound issue. It is one that cannot be resolved by differing interpretations of the statistics, or by rival calculations of cost or delay. Running through the Bill there is an undeclared assumption that bad people—meaning those who have previous convictions—should be faced by what will seem to many of them, whatever the realities may be, as a less fair and less thorough form of trial than the virtuous; namely, persons with an established reputation or livelihood. Those terms appear in the Bill, and are crucial to the proposed changes. To my mind, although there are other reasons too, that is the fundamental reason why the Bill is objectionable, and why this amendment should be accepted.

5.30 p.m.

Lord Davies of Oldham

My Lords, before the noble Lord sits down, perhaps I may put a question to him. At the beginning of his contribution, the noble Lord said that he thought that this was a defining moment for this reformed House. I thought he was about to develop that argument more fully. When he said in the rest of his speech that this matter is of profound importance to our democracy, was the noble Lord contending that this Chamber should take a decision today which so destroys the Bill that the democratic voice of our representatives in the other place will not be heard on this issue at all?

Lord Windlesham

My Lords, it surprises me to hear the objection raised that the voice of the House of Commons would be stilled. What a remarkable comment to make! The Government are perfectly entitled to raise this issue, and individual private Members are perfectly entitled to do so in another place. Motions can be tabled, or new Bills introduced. The idea that the voice of the other place will not be heard is laughable.

Lord Dholakia

I am—

Lord Donaldson of Lymington

I start—

Lord Carter

I think it would be appropriate for us to hear the noble and learned Lord, Lord Donaldson, and then the noble Lord, Lord Dholakia.

Lord Donaldson of Lymington

My Lords, I am sorry if I have caused any inconvenience. I start by making a point which may not seem directly relevant, but which I believe to be so. I welcome the Bill's re-enactment or production of completely new clauses from a large section of the 1980 Act. For those who have to work with the revised form, if it is passed, it is very much easier than the more customary method of tabling amendments saying, "Insert the following words on page 5, line so and so." However, there is one great disadvantage, which I believe to be relevant. The impression is given of far wider change than is actually contemplated by the supporters of the Bill. I wish therefore to mention the respects in which there is no change.

The fundamental basis until now for choosing a particular mode of trial has been its relative suitability, taking account of the seriousness of the offence and the consequences of possible conviction for the accused. No one, apparently, is criticising that approach. It certainly does not involve the proposition that Crown Court justice is better than that of the magistrates' court. All it says is that there are relatively less serious offences for which a less elaborate mode of trial is appropriate and that there are somewhat more serious offences for which the more elaborate Crown Court trial is more appropriate. So there is no change there.

Until now, it has been the law—and if the Bill is passed the situation will not change—that magistrates should reach a conclusion as to the relative suitability of the mode of trial. If one looks at the way it is laid out in the statute, they have to form that view before the accused is asked whether he consents. In fact, under the present system, he can get up and say, "I don't consent at all", and much time would be saved. But it was the intention of Parliament and it is the intention of Parliament, even if the Bill is passed, that the magistrates shall, first, form a view.

Then we come to the matters to be taken into account by the magistrates under the 1980 Act and under the proposed amendment in the Bill. They are, first, the nature of the case; secondly, the seriousness of the case, taking into account all the circumstances; thirdly, the adequacy of the powers of magistrates; and, finally—and this really complicates everything—any other circumstances appearing to the court to be relevant. There is no change there; indeed, it is exactly the same in the Bill.

Two paragraphs in the Bill are new. They provide that the magistrates should take account of the possible effects upon the accused of conviction in relation to his continuing livelihood and damage to his reputation. I do not know whether that is what my noble and learned friend the Lord Chief Justice had in mind when he said that he was not entirely happy with all the formulations in the Bill. Having listened to noble Lords today, I join him in that respect if he was referring to those two paragraphs. They are absolutely right, let us make no mistake about that. They are a major factor in determining the seriousness of the offence and arranging how it should be tried accordingly. But they are not new; they are new only because someone has written them down.

It has always been a legitimate argument to put to magistrates that there will be exceptional damage to reputation. I shall not give Members of the Committee any examples because, when doing so, it is extremely difficult to be comprehensive. Everyone knows that there are people with certain jobs and certain positions, such as one-man traders. If they are sentenced to imprisonment, it has a devastating effect on their business. Indeed, there are all sorts of different conditions that have to be taken into account, and are taken into account, by magistrates. I do not think that the two paragraphs provide any justification for saying that the law will no longer be treating everyone equally.

I support the Government's objection to the amendment in principle rather than on empirical grounds. It seems quite inconsistent with the main approach underlying the Bill and the 1980 Act that the mode of trial should be determined according to the degree of seriousness. Some people today have criticised accused people—I have heard this before—who decide that they will postpone the evil day by refusing consent to summary trial. I have even heard it suggested that accused people may do that as they would rather go to prison after Christmas, or because they would like to get their holidays in first. That is not a criticism of them; it is a criticism of the law. They are fully entitled to take advantage of their absolute right at present to refuse trial by magistrate. If I were counsel advising them, I would find out what they were really getting at arid say to them, "It is up to you. You can achieve that result by objecting to trial by magistrate. You need not worry so much about the serious consequences of being fully tried by a Crown Court because if you express your regret that you have taken the wrong course and plead guilty in the Crown Court many people will take that at its face value". Therefore I do not criticise those people at all but I criticise a system which enables them to do that.

It is said that if they do not have the right to refuse trial by magistrate some people will be disadvantaged. Certainly my client who wanted to spend Christmas at home would be disadvantaged. However, ethnic minorities and young people are a different matter altogether. I would hope—and I believe this to be the case—that magistrates are open-minded and fair-minded in these cases. If a member of an ethnic minority, or counsel on his behalf, said in court, "My client genuinely has a fear that his defence will not receive the same careful consideration by magistrates as by the Crown Court and it is not only my client who believes that, but also many others in his ethnic group", I would expect magistrates to say, "That is a good reason for sending the case to the Crown Court because from your point of view the offence has greater seriousness than it might have for others". As regards young people, magistrates undoubtedly would think that their views were ill-founded, but the perception of the accused matters. I am sure that magistrates would take account of that.

There are advantages in—

Baroness Kennedy of The Shaws

I hope that the noble and learned Lord will give way so that I may ask him the following question. Does he not consider it a risk that if magistrates were to take his advice and decide that if young black persons before them asked for a trial and said that they thought that they would be unfairly treated by magistrates, and that one got from that an increase in the number of black people having trials, that would set up the very thing that one would also not want, which is a feeling among white people that there was a privileged position for ethnic minorities? I should have thought one would find that ethnic minorities do not want that because they know that it would backfire on their communities. Therefore there are inherent risks in what the noble and learned Lord is suggesting. What he is pointing up is the very problem which those of us who are concerned about this Bill have sought to address.

Lord Donaldson of Lymington

Discrimination in any form always constitutes a great difficulty and a great danger. If particular ethnic minorities have equal faith in magistrate as in Crown Court trial, the problem will not arise. However, if the fear of discrimination arises in the mind of an accused, he ought to have no fear of expressing that and the magistrates ought to weigh that carefully and also take account of the matters that have just been raised.

I conclude by saying two things. It is said that jury trials give the opportunity for a representative group of people to express their abhorrence of the law as it stands. That is true. It is suggested that that may be the case as regards various parts of European law. That may well be true. I regard that as a perfectly good ground for asking for jury trial. It should not be given automatically but it should be given if some substance can be demonstrated.

I wish to make it absolutely clear that I have the greatest possible faith in the general body of the magistracy to enforce and carry out the law as expressed by this Parliament.

5.45 p.m.

Lord Dholakia

I am delighted to support the amendment. I assure the noble Lord, Lord Lipsey, that I am not a lawyer, but I have been involved in race and community relations for over 30 years. If I may say so, I found some of his comments inappropriate. I say to the noble Lord, Lord Mackenzie, that to equate the view with which he disagrees with the propaganda of Goebbels is also unacceptable.

The noble and learned Lord the Attorney-General and I have seldom disagreed during the passage of much criminal justice legislation through this Chamber. However, there is one issue on which I part company with him; namely, this Bill. Many of the arguments against the Bill have already been advanced and I shall not repeat them. However, there is one area which cannot be allowed to go unchallenged. I wish therefore to concentrate on one specific but crucial area of the argument—whether ending the right to elect jury trial will particularly disadvantage black and Asian defendants.

During the Second Reading of the Bill I commented at some length—I am grateful to the noble Lord, Lord Windlesham, for pointing that out—on the inadequacy of research in this area. The Minister and some other noble Lords have relied on the Home Office research published under Section 95 of the Criminal Justice Act 1991. I should have thought that there were ample arguments against using those statistics. I am surprised that those briefing notes have been further circulated by the noble Lord, Lord Bassam. That gives me further opportunity to say how inadequate that research is.

There is an admission in the Section 95 publication that in many of the Crown Courts and magistrates' courts covered in the pilot studies the level of missing data is at least one-quarter, thus making it impossible to identify any ethnic differences in court decisions at local level. Therefore we have information from just four pilot areas. None of those included Greater London where at least half of the ethnic minority population live.

There is a further admission that even in these areas the depth of analyses possible is limited because of the small number of cases from each ethnic group. It has not been possible to produce data by offence or age group which are known to vary among ethnic groups. In addition, other factors such as previous convictions cannot be taken into account. Therefore the figures in the briefing paper do not have much relevance to the argument. The results on which the Home Office places such emphasis are merely the outcomes and do not compare like with like. It is like clutching a straw to justify one's conclusions. No pun is intended here!

In a major study on sentencing undertaken by Dr Roger Hood of the Centre for Criminological Research at Oxford more than 80 variables were considered in the analyses and 15 were finally selected to calculate a probability of custody score. Using those variables it was demonstrated that, even when relevant factors were allowed for, there were still differences between sentencing of differing ethnic groups. The Home Office will have to go back to the drawing board and come out with better research. That is what it used to tell me when I produced simply the outcomes of cases without necessarily identifying the bases on which those conclusions were reached.

Even if in our wildest imagination we were to accept the Home Office conclusions, there are still further arguments that we need to consider. There are two important issues here: first, whether this change will be to the disadvantage of racial minorities; and, secondly, whether black or Asian people will perceive the change to be biased against them, thereby further denting their confidence in the fairness of the criminal justice system.

There appears to be no disputing that black and Asian defendants who appear at the Crown Court are more likely to be acquitted than white defendants. Home Office figures, figures supplied to the Royal Commission on Criminal Justice and data from Crown Courts in 11 pilot areas included in the Home Office's recent Section 95 publication, Statistics on Race and the Criminal Justice System, showed that 19 per cent of black defendants and 24 per cent of Asian defendants, as compared with 16 per cent of white defendants, were acquitted. There were similar findings in the recent study Race and Crown Prosecution Decisions by Dr Bonny Mhlanga. Many black and Asian defendants feel that if their cases stay in the magistrates' court they are more likely to be convicted by what in most cases would be an all-white group of magistrates.

The Government respond by claiming that figures for sentencing in magistrates' courts show no apparent bias between different racial groups. Having been a magistrate of long standing, I am pleased to hear that. But being sentenced in an unbiased way is of limited comfort to someone who would have not been convicted at all by a jury. In any event, as I explained, when we examine the sentencing statistics closely they do not inspire us with confidence in their reliability.

It is dangerous to reach conclusions about ethnic minorities with the flimsy evidence that the Home Office has produced. Are we really expected to rely on information as partial and as unreliable as this when we are considering such a fundamental change to our criminal justice system?

When detailed studies of individual court areas have been carried out in the past, they have in some cases produced disturbing findings. For example, a study by Dr. Barbara Hudson of the Middlesex Probation Service published in 1989, Discrimination and Disparity: The Influence of Race and Sentencing, New Community. Vol. 16 No. 1, surveyed sentencing in magistrates' courts and Crown Courts in the eight Greater London boroughs. What does it show? The study was carried out over a three-year period and covered 8,000 sentencing decisions. A significantly higher proportion of Afro-Caribbean offenders received custodial sentences than did white offenders for common types of offences. For example, 50 per cent of white offenders and 75 per cent of Afro-Caribbean offenders convicted for assault causing actual bodily harm received custodial sentences; for burglary the proportion was 49 per cent and 64 per cent respectively. Factors related to the nature of the offences and characteristics of the offenders explain part of the difference, but Dr Hudson found that some discriminatory effects remained even after all those factors were taken into account.

Local studies of magistrates' courts in the late 1980s by the West Midlands and West Yorkshire Probation Services reached similar conclusions, indicating that black offenders were more likely than white offenders to receive custodial sentences.

We require similar thorough up-to-date studies of magistrates' courts sentencing to be sure that claims of lack of racial bias are reliable—not incomplete bits and pieces of statistical data which raise more questions than they answer.

One final point. It is true that the Royal Commission on Criminal Justice recommended that defendants should not be able to elect for jury trial. However, the Royal Commission's report contained no discussion of the impact of the proposed changes on defendants from racial minorities. There is no evidence from its report that it even thought about this issue. In contrast, when the Royal Commission considered the selection of jurors, it recommended that in a case with a racial dimension the defence should be able to argue that it required a multi-racial jury containing up to three people from ethnic minority groups. If the Royal Commission could see that some black or Asian defendants might believe that they would get a fairer trial from a multi-racial jury than from an all-white jury, why is it so difficult to understand that many defendants believe that they will get a fairer trial from a multi-racial jury than from an al]-white bench of magistrates?

At a time when the criminal justice system needs to take every step that it can to repair the confidence of racial minorities, abolishing the right to elect jury trial is a step in precisely the opposite direction.

A more fundamental point is that many ethnic minorities—even if it is not the reality—still perceive that there is unfairness in the criminal justice system because the law is inevitably, for reasons of history, in the hands of predominantly white people—and magistrates' courts are no exception.

Baroness Kennedy of The Shaws

My Lords, perhaps I may start by saying that I support the Government. I am sure that that surprised your Lordships. That is to say, I support the Government's intentions. I think it is right that the criminal justice system should not be set in stone and that the Government should seek to make it more efficient, cost effective and more sensitive to the position of victims while protecting the rights of defendants. Those are things that I have argued for over the many long years of my practice within that system.

I also accept that steps should be taken to prevent abuse. As other noble Lords have said, there are people who delay the evil day and play the system. I do not accept that they do so in anything like the numbers that have been suggested. Some people plead guilty in the Crown Court because they have been over-charged in the first place, and it is only by then that the Crown have had the opportunity of considering all the evidence and accepting a reduced plea.

I agree that the aims of the Bill are laudable. The reason I oppose it and the reason I support the amendment—which I do with some pain in my heart— is an issue of principle. I believe that the impact of the Bill will be socially divisive and discriminatory. Other noble Lords have spoken to this and I do not intend repeating what I have said on previous occasions in the House. The Bill removes an important citizen's right.

We have not discussed today the important way in which the number of jury trials will be reduced by the Bill. Jury trials operate as a very awe-inspiring act of citizen participation. We should not underestimate how important is that engagement in the system by citizens in maintaining faith and in strengthening our society.

On 4th January I took my children to the Dome. For those of your Lordships who have not yet been there, I can inform you that there is a zone in it called "Self Portrait". It contains wonderful sculptures by Gerald Scarfe and lauds the great strength of the British people. It speaks about our creativity, our sense of humour, our inventiveness and our tolerance. It speaks about our sense of fair play; about how we invented the jury system and how that is the finest way of determining the guilt or innocence of an accused person. It also lauds the fact that we exported it to rather a large part of the world. So it is with a sad heart that I see any encroachment on that, particularly in the form taken in the Bill.

I should emphasise that this is not a denigration of magistrates. Many noble Lords have been, or are magistrates, who fulfil that role with the greatest of care and commitment. But the Bill puts magistrates into an invidious position where they, rather than the citizen, pick and choose those who are deserving of trial. Trial then becomes a privilege—and those who come before the courts have to be deemed worthy or unworthy of that privilege. It allows for subjective assessments. As soon as we have those, we know that there is a potential for prejudice to creep in and the possibility—even if it is not real—of concern by persons that they are being discriminated against

That is the worrying aspect of this piece of legislation. That is what makes it different from every other change to the jury system which has taken place. Rich or poor, black or white, everyone was treated in the same way, not as we have here.

I wish to add two things which have not been mentioned in the debate: first, the race issue and the concern about minorities. These subjects excite much concern when I discuss them with the general public—not only with lawyers but with people in community groups and in gatherings where concerns about racism are very real. They feel that, although the research has been published, there has not been adequate consideration of other research which could be examined. For example, a long-term study is being conducted in Leicester. I am told that Leicester Magistrates' Court has completed that report. It has not been published because of a lack of resources, but the Home Office has been given the results of that work, which addresses specifically whether there are any discrepancies in the way in which black and white people are dealt with. However, we have not seen anything of that work to help us in our considerations tonight.

Work has also been done by the Commission for Racial Equality on discrimination in the Irish community. I wish to mention that because I have raised the matter in the past and I had to search for support for my concern that if you looked at Irish people, who considered that they too might be discriminated against in the system, out of the white component, you might find that the difference between black and white was much more marked. In the report published in 1997 on discrimination in the Irish community, reference was made to various different pieces of research which indicate that there might well be similar discrimination against the Irish community in relation to stop and search, search of vehicles, charges following a stop and search, bail, remand and on ultimate sentencing. If we examined that kind of research and conducted more of it, we would be better assisted in knowing whether there is no discrimination at all within the system. I should like to ask the Home Office to undertake further research before it makes a decision and puts this kind of proposal before the House.

My noble friend Lord Lipsey mentioned reform of the magistrates' court and others have mentioned discrepancies in sentencing. An important review of the criminal justice system is currently being conducted by Lord Justice Auld, a fine judge. It is likely to report later this year. The inquiry is examining both the Crown Court and the magistrates' court. Would it not be useful to wait and see the results of his inquiry before leaping to this legislation?

Other things could be done here. After the Royal Commission reported and expressed concern about the issue of hybrid offences, an administrative change was introduced which meant that there would be plea before venue. I shall explain. In the past you were asked where you wanted to be tried before you were asked whether you were pleading guilty or not guilty. As a result, people would often say, "I want to go to the Crown Court". So off they went to the Crown Court, not having been asked the second question on their plea. By simply inverting those questions, it has been found that the number of people going to the Crown Court and electing for trial by jury has halved. A very simple administrative change has brought about an extraordinary reduction. I suggest that other administrative changes could be made that would bring about the same effect for the Government.

If some people are abusing the system because they want to spend Christmas at home before going off to serve their sentences, it should be made clear to them in the magistrates' court, at the point of electing, that they will be penalised if they are found to be abusing the system. Ways can be found of creating sticks and carrots here that would achieve the same ends.

If we want to ensure that victims are well treated within the system, for which I have argued for many years, we could create a system of fast-tracking that would provide a much more effective way of having such cases heard. Soon after coming to this House, I suggested to the noble and learned Lord the Lord Chancellor that it might be worth considering the introduction of a national courts administrator—an inspector of courts—who could look at the failings of the system in the administration of justice and find ways of making it more effective. That would achieve the same end as the Government are seeking in this legislation.

Finally, speaking as a Scot, we have seen the ultimate sleight of hand in the suggestion that because Scotland has this system, why should not England? That is a strange position to take when we have just completed devolution and the Scots are proudly celebrating their distinctive cultural and legal systems. Should we not take pride in the systems practised south of the Border? Law is cultural. That is why I am concerned when discussions turn to harmonisation across the board in Europe. I would say that our system is very much our own system and we cannot cherry-pick those elements that we like of another system because each system fits together in a holistic way. In Scotland, the procurator fiscal decides whether someone will have a trial by jury, and so to look at that system and merely to say that that is how it is done there is to fail properly to examine the whole of the Scottish system and how it works. In Scotland the trial is always held before the judge—the sheriff—on these hybrid offences. He sits with or without a jury as determined by the procurator fiscal, who has full knowledge of the person's convictions. However, the judge has only limited powers when dealing with a case in a summary fashion. There is no committal for sentence and the maximum penalty for one set of complaints is three months. That is a very different system and does not compare like with like. Simply cherry-picking is not acceptable, and if we suggested such a course in Europe, it would be bitterly resented.

This is an issue of principle. It is not about trading off. The amendment has been put in this form because, although we would have wanted to find another way, there is no alternative course. The Bill is wrong in principle and that is why it is opposed even by those who are friends of the Government.

6 p.m.

Lord Thomas of Gresford

The matter that has most struck me in the debate this afternoon was the anecdote of the noble and learned Lord the Lord Chief Justice, Lord Bingham. He referred to his experience of going to a Crown Court and being faced with a long list of defendants who had elected for trial. He told us that most of them pleaded guilty in the face of the Lord Chief Justice. However, there was one who was, as the noble and learned Lord described, of the weakest intellect and elderly, who, in the face of the Lord Chief Justice, wanted to have his trial. What we object to in the Bill is that that is the kind of person—60 convictions before him—who the magistrate would have insisted, under the provisions of the Bill, should have his case heard before magistrates. That man, perhaps the weakest. person in our society, will be the person for whom the justice of a trial will be denied.

I do not accept it, but there may be some merit in declaring that all shoplifting cases are too expensive for jury trials and so should be abolished for everyone. However, it is wrong to abolish them for the elderly person who is weak of intellect. That is not the way in which the system of justice in our country should be conducted.

The noble and learned Lord the Lord Chief Justice and the Attorney-General have entirely misconceived our fundamental objection to the Bill. Indeed, the noble Earl, Lord Onslow, struck the target absolutely accurately. The objection is not that a magistrate will make the determinative choice of venue. It makes no difference whether that is undertaken by a magistrate or a Crown Court judge. The objection is to the abolition of the right of a defendant to choose whether his case is heard before a jury, a bench of magistrates or a single stipendiary, based upon a value judgment as to his worth. The question being asked is: what kind of position in life does he need to protect? This Bill creates a new privilege to go along with the mortgage, the house, the car and the job. We should not divide our society in that way.

The noble and learned Lord the Lord Chief Justice and the noble and learned Lord the Attorney-General tell us that they have changed their minds on this issue for one reason—that there will be a right of appeal to a Crown Court judge. That makes absolutely no difference to the principle to which we are referring. The same criteria are to be applied. During the Second Reading debate, in answer to a question that I put to him, the noble and learned Lord the Attorney-General anticipated, 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".—[Official Report, 2/12/99; col. 999.] What that means, to those of us who have some experience of appeals to the Crown Court in bail applications, is that the two representatives of either side go into the judge's chambers, in private, with a file each. The defendant is not there. He does not hear what is said about his reputation and about his livelihood. It is all done away from him. It is a five minute hearing. The door then opens, the decision is made, and no doubt, in the vast majority of cases, the Government will expect that the Crown Court judge, using those same criteria of reputation and livelihood, will rubber stamp the decision previously taken by the magistrates.

So many points have been covered by your Lordships that perhaps the Committee will forgive me if I mention only one or two. Reference was made to the question of cost. The alleged savings in the Home Office flows and costs model operate on an assumption that the magistrates will take to themselves three-quarters of the 18,500 cases where the defendant currently elects to go to the Crown Court. That is the basis on which the Government say there will be a net saving of £39.5 million to the courts' budget.

It is a complete assumption. Who knows whether the magistrates will decide in three-quarters of the cases or in 95 per cent of the cases that the matter should be dealt with by magistrates and not in the Crown Court, or vice versa? One cannot compare the average cost of Crown Court trials, which reflect the costs of murder cases, fraud and conspiracy—all long cases—with the cost of average magistrates' court cases where so many cases go through that the average cost is far lower. What is happening is that the most expensive cases in the magistrates' court will be the each-way cases that are sent to them.

The second assumption is that the magistrate's decision at trial will be accepted; that is to say, if he finds the defendant guilty, that is the end of it. There will be no further appeal. But that is not the case. It may be that the defendant will be committed for sentence; it may be that he will exercise his unbounded right to have a completely new hearing in front of a Crown Court judge with two magistrates. So, as has been said in the debate, the savings are based on assumptions which simply will not be carried out.

The third assumption is that £66 million will be saved from prison costs as a result of shorter custodial sentences passed in the magistrates' court. That figure is based on research which is now 10 years out of date. I agree entirely with what was said by the noble Lord, Lord Alexander of Weedon. How can it be right in principle that there is such a disparity in sentencing between the Crown Court and the magistrates? A person should not in principle receive a higher sentence through the exercise of his right—his right—to jury trial.

If this Bill or anything like it becomes law, I cart see the following happening. Just as there is pressure on magistrates to refuse applications for jury trial to come within the projected guidelines for cost savings, so there will be pressure on Parliament within a very short time to increase the sentencing powers of magistrates to avoid the expense of committing a convicted person to the Crown Court for sentencing. Within a couple of years I guarantee that the powers of the magistrates will be increased from six months to two years, or perhaps even three years in a situation like that.

Much has been made during the debate of the right to election first arising under the Criminal Justice Act 1855. That is a complete misunderstanding. Prior to that Act, all felonies were tried before a jury at assizes. The purpose of that Act may have been to ensure that magistrates dealt with the bulk of cases, but the age-old right to be tried by a jury was preserved by the requirement that the accused's consent was required to a hearing before the magistrates. The legislation did not give him the right to elect for trial by jury; he already had that right. It simply gave him the protection of consenting to a trial before magistrates where the sentence would be less. It is ironic that a provision introduced in order to give a defendant the chance of a disposal before the magistrates with a lesser sentence is now being used as a precedent for reducing costs.

It is said that defendants abuse their rights. I do not see how one can abuse a right simply by exercising it. That is a novel concept. Nor can one start from the basis that all those who choose to go for trial are guilty. That seems to be behind so much of what has been said by those who are in favour of the Bill. More abuse of lawyers comes from Mr Straw. Comments have already been made about that. I tried to think, "Am I a Hampstead liberal?" For two months in 1961, when I was studying to be a solicitor, I did live in Belsize Park. I had aspirations even there—the foothills of Hampstead. Then I wondered, "'Woolly liberals', was that in some way a reference to my Welsh ancestry?" I thought, "Surely the Home Secretary cannot mean that because he would have very much a woolly New Labour Attorney-General", who may be replying to the debate.

Those of us who have practical, hands-on, daily experience of the courts see defendants not as outcomes, not as disposals, not as statistics, but as people, sometimes with families, with very human problems in a society which so often let them down, laid them open to abuse and to deprivation, and failed to give them the skills, the training and the jobs that would enable them to survive and make something of their lives. I once thought that the Labour Party was concerned about those people. I once thought that that was what it had as a principle. But New Labour is a very different proposition. It accepts a total reverse of principle; it accepts the creation and not the abolition of privilege which we on these Benches have fought all our lives; and it accepts money before justice and the substitution of abuse for argument. It really is very sad.

Lord Hardie

I hesitate to—

Lord Mishcon

Perhaps I may—

Lord Carter

I think it would be appropriate if we heard from my noble and learned friend Lord Hardie.

6.15 p.m.

Lord Hardie

I hesitate to intervene in this matter, being from a foreign jurisdiction. I apologise to the Committee for not being present at Second Reading, but I have read the report of the proceedings. I note that during the debate reference was made to Scotland. My noble friend Lady Kennedy of The Shaws did so again today. I wish to speak as head of the system of investigation and prosecution of crime in a legal system where the concept of an accused electing the mode of his trial has no place and never has.

In any system where there is either way prosecution, there are three options: the prosecutor decides; the accused decides; or the court decides. I understand some of the concerns which have been expressed by the Committee today. I recognise that whatever system is chosen, we must ensure that it is fair. There must be checks and balances to protect an accused person against injustice. It may assist the Committee if I briefly explain what happens in Scotland, not to suggest that the same system should be imported into England, as some have suggested, or even to suggest that there should be "cherry-picking", as my noble friend said. Rather, the purpose is to ascertain whether any issues of principle may be applied where the accused does not have the right of election of mode of trial.

I acknowledge that there are fundamental differences between the two jurisdictions, not least because the Lord Advocate is the master of the instance for all prosecutions in the public interest. That in effect means that the Crown alone decides not only whether to initiate criminal proceedings and upon what charges but also, in the absence of any legal provision to the contrary, the court in which an accused shall be prosecuted. The decision whether to take proceedings and the nature of those proceedings is made on an independent and objective assessment of the evidence available and on the Crown's assessment of the public interest.

As to the mode of trial in Scotland, as in England and Wales there are certain offences specified by statute in which the High Court has exclusive jurisdiction and which must be heard by a jury. In addition, there are some statutory offences in which solemn procedure has been expressly excluded. However, apart from such cases, the procurator fiscal, and in jury cases Crown counsel, decides what is the appropriate forum, and they have a wide discretion in making that decision.

In choosing the appropriate forum, the fiscal or Crown counsel will have regard to the gravity of the offence and whether the powers of the court are appropriate to impose an adequate sentence in the event of a conviction. The Committee will recognise the similarity with England, at least in that regard.

Regard will also be had at that stage to the criminal record of the accused. The accused has no rights at all in the decision as to which forum he should be tried in. There is no right of appeal against the decision of the Crown, although if there were oppression the court would clearly intervene.

In Scotland, it will be obvious that we have opted for the prosecution as the appropriate organ to make the decision. I accept that that would not be appropriate in England, where there is not a unified prosecution system. So in England and Wales the choice is between the accused and the court.

I venture to suggest to the Committee that in determining the appropriate forum for trial, an objective assessment founded on relevant and specified criteria would appear to be more just and equitable than one dependent on the subjective views and considerations of an accused. The objective approach balances the interests of the accused against the interests of society in general and victims and witnesses in particular.

What is essential in any system is that the various interests are balanced; that society's interests, as represented by victims and witnesses, are balanced against the interests of the accused. But what must be ensured is that the accused is protected from the effect of arbitrary decisions. Who better to perform such a task than an independent judiciary?

In the Bill, the appropriate balance, is achieved while ensuring that there are sufficient safeguards for the accused. The magistrates are obliged to have regard to the matters specified in new Section 19(3). New Section 20(4) provides the further safeguard of a right of appeal to the Crown Court against the decision of the magistrates to try the case summarily. There is thus judicial scrutiny to afford an aggrieved accused person further protection.

I invite the Committee to accept that the Bill will achieve the correct balance. By reducing delays in trial, the Bill will secure a more efficient system of justice, to the benefit of victims and witnesses alike, while at the same time protecting the interests of an accused.

Lord Taylor of Warwick

There have been a number of references to black defendants during our debate. I do not put myself forward as an expert witness on the issue simply because I have a black skin, but I have represented a number of black clients in the criminal courts over the years. What I have found is that, rather than seeking an O. J. Simpson verdict, what they seek is simply a fair trial. So I totally support the comments made by the noble Lord, Lord Dholakia, and the noble Baroness, Lady Kennedy.

Diamonds are made under pressure. Having created this jewel in the criminal justice crown, I believe it would be wrong to replace it with something which is perceived to be inferior. That is why I support the amendment Rat forward by the noble Lord, Lord Cope.

The moment we stop listening we stop learning. But it is difficult to gather what genuine arguments the Home Secretary has heard now to propose something which he denounced in opposition. I have tried to keep an open mind about it. Yes, of course it would be unrealistic to claim that no defendant ever chose jury trial simply to delay proceedings. In one of my earliest cases at a Crown Court I had to represent a chap accused of the burglary of a grocer's shop. It was alleged that he had stolen a crate of oranges which he dropped during the police chase after the alarm went off. You could say it was one of my first "juicy" cases. Apparently, he believed that the oranges would go rotten and perish while he awaited jury trial, so destroying the crucial evidence against him. I explained to him that exhibit A was a bundle of colour photographs of the said oranges that the prosecution were perfectly entitled to rely upon. He pleaded guilty.

However, that is not my common experience. The serious point I make is that the number of defendants electing to be tried at the Crown Court is falling—we have already heard the figures—from 52 per cent in 1987 to just under:30 per cent this year. The trend continues to fall.

There have been a number of excellent speeches, so the remarks I make will be much briefer than would otherwise have been the case. It is claimed that the Bill will save money, and there is some dispute about that. In my opinion, the better way to save expense is to make the legal process from police to the courts more efficient. Of those charged with either-way offences, 25 per cent never get to court or are discontinued, as the prosecution offers no evidence. Most of the defendants will already have got legal aid by that time, at the taxpayer's expense. So again I totally endorse the views expressed by the noble Baroness, Lady Kennedy, on improving the efficiency of the system. In my opinion that is the better way forward.

Confidence in the criminal justice system is vital. Some black and Asian defendants choose jury trial because they fear that they will not get a fair hearing by magistrates. That is not the same as saying that they seek an O. J. Simpson verdict. It is a very different point.

To have the right to elect jury trial removed from them will only further reduce their faith in the system. At a time when the Macpherson report highlighted ways of improving race relations, the Bill could cast a shadow once more. Once the right to elect trial is lost, it will be difficult to win it back. The Government must not sail out further than they can row back. So many organisations are against this, including the Bar Council, the Law Society, the Black Lawyers Association, Liberty, Justice and the Legal Action Group. It is time the Government faced the music, even though they do not like the tune.

6.30 p.m.

Lord Mishcon

Following so many eloquent speeches, I would not dream of addressing the Committee at this hour unless I had something to say which had not been said so far. It may be that it has not been said because it is not very sensible. Nevertheless, I wish to place my dilemma before the Committee.

The matter to be decided this evening can be put in simple terms. For many years defendants in certain cases have had the right, which has been regarded as precious, to choose which court is to try him. Before a right is removed, surely the onus is upon those who seek to remove it to prove—I almost said "beyond all reasonable doubt"—certainly on the balance of probabilities, that the change should be made and that they are not perpetrating any injustice. Broadly, tonight we must decide whether this Bill justifies the withdrawal of a right. One can go on talking in parentheses. One can explain what happens in the Crown Court: for example that, unlike in the magistrates' court, one is served with copies of statements of witnesses to be called by the prosecution, which are frightfully useful. I do not go into those details. Given that there is a right vested in a number of our citizens, have we proved the need to remove it, and are there advantages in so doing?

I tried to do a little research into the claimed advantages of the Bill. I pay sincere tribute to my noble and learned friend the Attorney-General who said at Second Reading that he had nought but respect for those who happened to differ from the case that he then put forward. I do not believe that I am being disloyal in what I say. I am being honest when I try to examine some of the supposed advantages. First, we are told that time will be saved. Time is very valuable. I sought to discover from the Law Society the average time for cases in which there is a not guilty plea to be tried in a magistrates' court and a Crown Court in a metropolitan area. I understand that the average time is four months for both a magistrates' court and Crown Court, so it is a dead heat.

We are told that it will save costs. I do not believe that the reduction of cost is a very justifiable excuse for a Bill of any kind. However, I considered that matter in the context of this Bill. One point that has not been mentioned is that the Bill suddenly places a burden on the courts. In every case where the option arises a magistrates' court must be convened to decide which court is to try the case. That does not apply simply to those cases where the defendant wants to be tried in the Crown Court; in every case the court must judge which is the appropriate court. It must listen to any observations that may be made on behalf of the prosecution and defendant and undertake various extensive exercises, to which reference has been made—I do not repeat them—following which there is a right of appeal.

Last weekend I spoke to a very experienced Crown Court judge and asked him what he thought. He said, "Please do not add to our labours in the Crown Court. We already have enough to deal with. Do we have to hear these appeals as well?" The objector to my point will say that it is the same as a bail application. Anybody who knows anything about bail applications will be aware that they can be extremely brief or lengthy. I have sufficient confidence in my colleagues at the Bar to know that if they are allowed to go through all the matters to be dealt with under Clause 1 of the Bill they will be extremely eloquent. I am sure that that will last a long time and that, with those added burdens, costs will not be saved. Which fund is to meet those costs?

At Second Reading I took the liberty to intervene in the Attorney-General's speech. With his usual courtesy he allowed me to do so. I asked whether legal aid would be available for these exercises, and he confirmed that it would be. To be frank, I can think of better uses for legal aid funds. Nevertheless, I cannot see anything happening in regard to costs.

Next, we are told that this is a good way to deal with the situation and for that reason we should withdraw the right. The Committee will not be surprised to hear that I examined my conscience. I bear in mind the beautiful phrase "the jewel in the crown". I do not want that jewel to be scratched or to give anyone the chance to destroy it completely. Once one starts to interfere with the right to jury trial one runs the great risk that some other less just and progressive government will start to knock off other bits of that right.

The Committee will not be surprised to learn that when I finished my deliberations—which I assure noble Lords were sincere—I came to the conclusion that in all honesty and conscience I could not support the Bill as it stood. Here comes my dilemma.

What does the amendment say? Put simply, the amendment says that there should be an absolute right vested in the defendant to election in what are called either-way cases. My noble friend Lady Kennedy made, as usual, a jolly good speech in which she admitted, as at Second Reading, that there were a number of cases—not the majority—in which people took advantage of the system. If one looks at legislation at all one must deal with that fault. People should not be allowed to make a mockery of the system. If one looks at the amendment, the absolute right is there and, with great respect to those who drafted it, no one has tried to deal with that difficulty. It can be dealt with. I say this to my noble and learned friend the Attorney-General as much as to the movers of the amendment. It may be sensible that we do not vote on the issue tonight but on Report or possibly at a later stage after consideration. I am amazed to find that my sentence has caused laughter. Dissent I can stand; mockery I cannot!

I say this sincerely. One has only to add to the amendment that the defendant has the absolute right to elect subject to the objection that may be made by the prosecutor. Then all the procedures set out in the Bill can be gone through. That is an absolute right given to the accused. The prosecutor will not interfere unless he has extremely good grounds and is able to say to the magistrate or judge on appeal, "Look at the way this defendant is behaving. It is ridiculous that the case should be transferred to the Crown Court".

I have uttered, I hope truthfully and sincerely, the dilemma in which I find myself. It is a matter for consideration—I say this most humbly and respectfully—by both the Government and those who oppose the Bill as to whether we might find some compromise of that kind which does not extend to the abolition of a right but enables us to proceed sensibly. It is a matter of grave concern to our people.

Lord Williams of Mostyn

I hope that I am not being disagreeable in suggesting that every speech this evening has been a Second Reading speech. I do not criticise that because I recognise that there are honourable differences between honourable views differently held. I remind the Committee that on no occasion have I ever impugned the motives of anyone. I recognise that people may come to different conclusions.

Much that has been said today has been a recitation, perhaps at somewhat greater length, of what was put forward at Second Reading; and I do not criticise that. There are two significant critical additions of which I respectfully remind the Committee. The first was a masterly exposition by the Lord Chief Justice. He is not speaking of time past when he or I might have been pupils and accepted with our mother's milk the received wisdom of an entrenched legal profession.

The second extremely important contribution—if I may say so with out appearing invidious—was that from the noble and learned Lord the Lord Advocate. He pointed out that, in the jurisdiction of which he has specific control in this area, recognising, of course, that there are cultural, historical, traditional differences, the right to decide on place of trial is entirely vested in the prosecutor. We could have gone that way with our reform. We did not. I emphasise that. It was not because we were ignorant of what goes on north of the Border. The noble and learned Lord and I have been colleagues and friends for far too long for that to have occurred. We wanted to look at a proportionate balance to get a proportionate outcome to these difficult problems.

It is notoriously well known, I think, that I should not myself have been able to support the Bill had there not been the critical right of appeal. The noble and learned Lord the Lord Chief Justice has said that that was his view, too. The overwhelming, virtually unanimous, view of his judicial colleagues, who, if I may respectfully suggest it, do know what they are talking about, is that this is a proportionate outcome in difficult circumstances.

Perhaps I may make one or two observations of fact. If offences are appropriate for either-way treatment, inevitably by definition the magistrates are appropriate to try them in some cases. The span of offences we are considering is very wide indeed. Not all thefts are of equal seriousness. Not all burglaries are. I take the simplistic example. If a man puts his hand through the neighbour's back window and takes the loaf or pint of milk because he is hungry, I submit, and I will never resile from this position, that that is qualitatively, deeply, fundamentally different from the burglarious attack on an old woman who lives alone. There is that difference. It is no good pretending that there is not.

What we suggest—I am not interested in abuse; I am not myself interested in anyone's postal code—is that we need to look at the matter in a way which is wholly unencumbered by professional historical or traditional baggage. What we have suggested is that the right to make the choice should be subject to two judicial filters. The first is the filter of the magistrates' court. I take up one assertion made by my long-standing professional colleague and friend, the noble Lord, Lord Thomas of Gresford. He said that if there were to be the determination that trial by jury was not to be available even in a trivial case of theft, that would be the justice, of a trial denied. No, unless he proceeds upon the unspoken, insidious basis that there is no justice in a trial in the magistrates' court.

I cite briefly one or two figures. We shall not see the collapse of civilisation as we formerly knew it if this reform goes through.. Every year 1.8 million cases are tried by the magistrates. Very few miscarriages of justice—I think that there has been only one—from the magistrates have ever been referred to the criminal cases review body. There is in any event the automatic right of appeal to the Crown Court, as of right, for anyone who is convicted in the magistrates' court. Last year, 400,000 either-way cases were tried by magistrates. If magistrates are so inept, incompetent, biased, why should that occur? Of the 65,000 cases that went to the Crown Court, 47,000 were sent there by the magistrates because they took the considered decision that it was not appropriate or proper for them to try those cases. Do they do that in a judicial, intellectual or social vacuum? They do not, because since 1995 the Lord Chief Justice's guidelines have been available for them; and, if it were thought appropriate, there is no reason why those guidelines could not be further fine tuned if the Bill becomes law.

In 18,500 cases there was automatic election to the Crown Court irrespective of whether it was the first class of burglary—the loaf taken because the man is hungry, causing no alarm to anyone—or the second class, which, I repeat, is wholly different, of the elderly woman living alone whose life is devastated. Of those 18,500, 60 per cent pleaded guilty. It is said that that may have been because charges were reduced. I have not seen the empirical evidence; that might be a little too much to be looking into. Of course, charges sometimes are reduced. Everyone who has ever practised at the criminal Bar knows that sometimes in automatic jury trial cases such as murder, the charge is reduced to manslaughter. But that does not go to the point at issue. If, in fact, that is such a fundamental right and the Bill is such a wicked attack on what everyone has always known, why is it that 60 per cent of people elect and thereafter plead guilty?

If over-charging is a problem, there is an answer; it is available in the Bill which I have already put before your Lordships and which has been through Committee stage—the Crown Prosecution Service Inspectorate Bill. For the first time, there will be an independent inspectorate with lay membership and I shall be entitled, if I wish—and, if your Lordships brought it to my attention, obviously I should consider it—to invite the inspector to conduct a thematic review of the allegations of over-charging in the circumstances which we are discussing.

I shall continue for a moment or two. This is not really a wrecking amendment; it is a torpedo amendment, and there will be nothing left of the Bill if it is accepted—that is the one sentence that I have uttered tonight which will meet with universal agreement from all Members of the Committee. If the amendment is passed, there is nothing left at all at this stage.

What is the consequence of 60 per cent electing to plead guilty? Not all that long ago, although it seems a long time ago now because it was before the election, the noble and learned Lord the Lord Chief Justice and I were together on an occasion—he as Lord Chief Justice, I as a trustee of the NSPCC—presenting a video on how children, as complainants, victims and witnesses, are so badly treated in the criminal justice system. The constant theme there, I repeat, was that delay in the criminal justice system is sometimes more damaging to that sort of complainant than the original offence itself. That is a monstrous slur on our way of dealing with things, and it is true.

Your Lordships, being more inventive than I, will be able to say to the female complainant in a rape case, "Your case is not going to come on for nine months". That is nine months of agony and indecision and frequent adjournments—brought about why? Because the system is clogged up with matter that, on any objective assessment, does not really need to be there. I should not myself have wanted to take on the burden, with the Director of Public Prosecutions or any chief prosecutor or any chief branch prosecutor, of the decision on venue of trial. I do not believe that that is for us in our particular system. It is not just for the defendant either. It should be subject to the judicial scrutiny of magistrates who are experienced and whose composition is not so monochrome as it once was. If they come to a conclusion which is not coherent or consistent and is perhaps irrational or bizarre, there is the automatic, immediate right of appeal to the Crown Court as specified by the noble and learned Lord the Lord Chief Justice, who indicated that he would be looking to designated judges to carry out those appeals or to their designated deputy, so that there would be a coherent, consistent approach.

Many other points have been raised. My noble friend Lord Shore asked about European problems and the butcher and his pound of meat. I should probably expect such cases, as weights and measures matters, to be triable by the magistrates in any event. There would not be a right of election, but I deal with that query in courtesy to the great care and politeness with which my noble friend raised his point.

I have a feeling that positions have been taken up and have become entrenched. I have the further feeling that any argument, however perfectly rational and otherwise apparently persuasive, is not likely to succeed in raising the number of those who will joyfully join me in the Lobby.

Lord Lester of Herne Hill

I am most grateful to the noble and learned Lord the Attorney-General for giving way. Would he just deal with one point on the effect of what is proposed on racial minorities? Is he aware of the letter of 17th January from Sir Herman Ouseley, the Chairman of the Commission for Racial Equality, to the Home Secretary, in which, among other things, he wrote that, It is the clear view of black community organisations that black defendants believe that they are more likely to get a fair hearing from a jury than in a magistrates' court. There is nothing in the statistical data or the arguments put forward that demonstrates that the removal of the right to elect trial by jury will lead to greater fairness or better justice". Is the noble and learned Lord aware of that? How can he give the kind of reassurance in the Bill that the black community would need before we took the step of making such a change?

Lord Williams of Mostyn

The noble Lord will know that I have a particular personal interest in that matter in any event, for reasons that he knows perfectly well. I suggest that we look at the figures for a moment or two. The figures show that, if one is black, one is 6 per cent more likely to be found not guilty in the magistrates' court than if one is white and that the same 6 per cent differential obtains in the Crown Court. I agree that perception is important, but I submit that it must never be determinative. Otherwise, people who have the perception that the world remains flat will find great difficulty about their everyday occasions.

I was about to conclude—hear, hear!

A noble Lord

Hear, hear!

Lord Williams of Mostyn

I suppose I should not have attempted to be the ventriloquist.

These are serious issues. I have never put the matter before your Lordships on the basis of cash savings being fundamental. I adhere to what I said at Second Reading. I am talking about resource. The resource of which I am speaking is the delivery of justice. The delivery of justice is not a personal interest of the defendant alone. It is an interest of the prosecutor and of the complainant. It is a fundamental interest to the whole of our community. Our community is entitled to say to us, "Of course the defendant has his personal interest", which I recognize—I have defended year in and year out, as well as prosecuted. If we delay trials because of material in the system which does not need to be there at all—I am not being dismissive when I say "material in the system"; I am using that term statistically—we are fundamentally derelict in the duty that we should be discharging in the general public interest. That is the resource I have in mind and that is the justice to which I am referring.

Lord Cope of Berkeley

We have had a long and most serious debate. I shall not abuse the right I have to delay matters at this point. I commend the amendment.

6.57 p.m.

On Question, Whether the said amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 222; Not-Contents, 126.

Division No. 1
CONTENTS
Aberdare, L.	Bell, L.
Ackner, L.	Belstead, L.
Addington, L.	Biffen, L.
Alderdice, L.	Blatch, B.
Alexander of Weedon, L.	Boardman, L.
Allenby of Megiddo, V.	Bowness, L.
Alton of Liverpool, L.	Brabazon of Tara, L.
Anelay of St.Johns, B.	Bradshaw, L.
Arran, E.	Bridgeman, V.
Astor, V.	Brightman, L.
Astor of Hever, L.	Brougham and Vaux, L.
Attlee, E.	Bruce of Donington, L.
Avebury, L.	Burnham, L.
Baker of Dorking, L.	Buscombe, B.
Barber, L.	Byford, B.
Barker, B.	Caithness, E.
Beaumont of Whitley, L.	Campbell of Alloway, L

Campbell of Cray, L.	Lester of Herne Hill, L.
Carlile of Berriew, L.	Linklater of Butterstone, B.
Carnarvon, E.	Liverpool, E;.
Carr of Hadley, L.	Longford, E.
Cavendish of Furness, L.	Lucas, L.
Chadlington, L.	Ludford, B.
Chalker of Wallasey, B.	Luke, L.
Chichester, Bp.	Lyell, L
Chilver, L.	McColl of Dulwich, L.
Clement-Jones, L.	Macfarlane of Bearsden, L.
Colwyn, L.	Mackay of Ardbrecknish, L.
Cope of Berkeley, L.	Mackay of Drumadoon, L.
Courtown, E.	MacLaurin of Knebworth, L.
Cowdrey of Tonbridge, L.	McNally, L.
Cox, B.	Maddock, B.
Craig of Radley, L.	Mallalieu, B.
Crathorne, L.	Mancroft, L.
Crickhowell, L.	Mayhew of Twysden, L.
Cumberlege, B.	Methuen, L
Dahrendorf, L.	Miller of Chilthorne Domer, B.
Deedes, L.	Miller of Hendon, B.
Denham, L.	Montagu of Beaulieu, L.
Desai, L.	Montrose, D.
Dholakia, L.	Moore of Lower Marsh, L.
Dixon-Smith, L.	Mowbray and Stourton, L.
Dundee, E.	Moynihan, L.
Eccles of Moulton, B.	Murton of Lindisfame, L.
Elles, B.	Naseby, L.
Elliott of Morpeth, L.	Newby, L.
Elton, L.	Newton of Braintree, L.
Ezra, L.	Nicholson of Winterbourne, B.
Falkland, V.	Norfolk, D.
Feldman, L.	Northbrook, L.
Ferrers, E.	Northesk, E.
Flather, B.	Norton of Louth, L.
Fookes, B.	Oliver of Aylmerton, L.
Forsyth of Drumlean, L.	Onslow, E.
Freeman, L.	Onslow of Woking, L.
Geddes, L.	Oxford, Bp.
Geraint, L.	Oxfuird, V.
Gilmour of Craigmillar, L.	Park of Monmouth, B.
Goodhart, L.	Parkinson, L.
Gray of Contin, L.	Patten, L.
Hambro, L.	Peel, E.
Hamwee, B.	Perry of Southwark, B.
Hanham, B	Phillips of Sudbury, L.
Hanningfield, L.	Pilkington of Oxenford, L.
Harris of Greenwich, L.[Teller]	Plumb, L.
Harris of Peckham, L.	Plummer of St. Marylebone, L.
Harris of Richmond, B	Prior, L.
Hayhoe, L.	Pym, L.
Henley, L.[Teller]	Quinton, L.
Higgins, L.	Rawlings, B.
Hogg, B.	Rawlinson of Ewell, L.
Holme of Cheltenham, L.	Razzall, L.
Hooson, L.	Reay, L.
Howe, E.	Rees, L.
Howe of Aberavon, L.	Rees-Mogg, L.
Howell of Guildford, L.	Rennard, L
Hunt of Wirral, L.	Renton, L.
Hutchinson of Lullington, L.	Renton of Mount Harry, L.
Hylton-Foster, B.	Roberts of Conwy, L.
Inglewood, L.	Rodgers of Quarry Bank, L.
James of Holland Park, B.	Rotherwick, L.
Jeger, B.	Russell, E.
Jellicoe, E.	Ryder of Wensum, L.
Jenkin of Roding, L.	Saatchi, L.
Jenkins of Hillhead, L.	St. John of Fawsley, L.
Jopling, L.	Sandberg, L.
Kennedy of The Shaws, B.	Sanderson of Bowden, L.
Kimball, L.	Selsdon, L.
Kingsland, L.	Sharman, L
Kirkham, L.	Sharp of Guildford, B.
Lamont of Lerwick, L.	Shaw of Northstead, L.
Lane, L.	Shrewsbury, E.
Lane of Horsell, L.	Simon of Glaisdale, L.

Skelmersdale, L.	Tope, L.
Smith of Clifton, L.	Tordoff, L.
Soulsby of Swaffham Prior, L.	Trefgarne, L.
Stallard, L.	Trumpington, B.
Steel of Aikwood, L.	Vivian, L.
Stern, B.	Waldegrave of North Hill, L
Stoddart of Swindon, L.	Wallace of Saltaire, L.
Strathdyde, L.	Warnock, B.
Swinfen, L.	Watson of Richmond, L.
Taverne, L.	Wigoder, L.
Taylor of Warwick, L.	Wilberforce, L.
Tebbit, L.	Wilcox, B.
Thatcher, B.	Williams of Crosby, B.
Thomas of Gresford, L.	Williamson of Horton, L.
Thomas of Gwydir, L.	Willoughby de Broke, L.
Thomas of Swynnerton, L.	Windlesham, L.
Thomas of Walliswood, B.	Wolfson, L.
Thomson of Monifieth, L.	Young, B.

NOT-CONTENTS
Ahmed, L.	Hayman, B.
Amos, B.	Hilton of Eggardon, B.
Ashton of Upholland, B.	Hogg of Cumbernauld, L.
Bach, L.	Hollis of Heigham, B.
Baldwin of Bewdley, E.	Howells of St Davids, B.
Barnett, L.	Howie of Troon, L.
Bassam of Brighton, L.	Hoyle, L.
Blackstone, B.	Hughes of Woodside, L.
Bledisloe, V.	Hunt of Kings Heath, L.
Borrie, L.	Islwyn, L.
Bragg, L.	Jay of Paddington, B. (Lord Privy Seal)
Brett, L.
Bridges, L.	King of West Bromwich, L.
Brooke of Alverthorpe, L.	Kirkhill, L.
Brookman, L.	Levy, L.
Burlison, L.	Lipsey, L.
Burns, L.	Lofthouse of Pontefract, L.
Butler of Brockwell, L.	Lovell-Davis, L.
Carter, L.[Teller]	Macdonald of Tradeston, L.
Christopher, L.	McIntosh of Haringey, L. [Teller]
Clarke of Hampstead, L.
Cledwyn of Penrhos, L.	McIntosh of Hudnall, B.
Cocks of Hartcliffe, L.	MacKenzie of Culkein, L.
Colville of Culross, V.	Mackenzie of Framwellgate, L
Crawley, B.	Massey of Darwen, B.
David, B.	Merlyn-Rees, L.
Davies of Coity, L.	Milner of Leeds, L.
Davies of Oldham, L.	Molloy, L.
Dean of Thornton-le-Fylde, B.	Monson, L.
Diamond, L.	Morris of Manchester, L.
Donaldson of Lymington, L.	Murray of Epping Forest, L.
Donoughue, L.	Nicol, B.
Dormand of Easington, L.	Orme, L.
Dubs, L.	Owen, L.
Elder, L.	Parry, L.
Evans of Watford, L.	Peston, L.
Falconer of Thoroton, L.	Pitkeathley, B.
Farrington of Ribbleton, B.	Plant of Highfield, L.
Faulkner of Worcester, L.	Puttnam, L.
Filkin, L.	Ramsay of Cartvale, B.
Fitt, L.	Randall of St. Budeaux, L.
Gale, B.	Rendell of Babergh, B.
Gavron, L.	Renwick of Clifton, L.
Gilbert, L.	Richardson of Calow, B.
Gladwin of Clee, L.	Sainsbury of Turville, L.
Goldsmith, L.	Sandwich, E.
Gordon of Strathblane, L.	Sawyer, L.
Goudie, B.	Scotland of Asthal, B.
Gould of Potternewton, B.	Serota, B.
Grabiner, L.	Sewel, L.
Graham of Edmonton, L.	Shepherd, L.
Hardie, L.	Simon, V.
Harris of Haringey, L.	Simon of Highbury, L.
Harrison, L.	Skidelsky, L.
Haskel, L.	Strabolgi, L.

Symons of Vernham Dean, B.	Wedderburn of Charlton, L
Taylor of Blackburn, L.	Wharton, B.
Tenby, V.	Whitaker, B.
Thornton, B.	Whitty, L.
Turner of Camden, B.	Wilkins, B.
Varley, L.	Williams of Elvel, L.
Walpole, L.	Williams of Mostyn, L.
Warner, L.	Woolmer of Leeds, L.
Weatherill, L.	Young of Old Scone, B.

Resolved in the affirmative, and amendment agreed to accordingly.

Lord Strathclyde

A few moments ago the noble and learned Lord the Attorney-General said that if this amendment were passed, it would torpedo the heart of the Bill. I see that the noble Baroness the Leader of the House is in her place. Given that situation, perhaps I may ask her what are now the Government's intentions on the Bill. Given that this is the first time that this new House has defeated the Government on such an important matter and in such an overwhelming way, is it not right that the Government should now withdraw the Bill and not bring it back, considering the voice of this House?

The Lord Privy Seal (Baroness Jay of Paddington)

I am grateful to the noble Lord the Leader of the Opposition for giving me the opportunity to make clear the Government's intentions. As he said, and as my noble and learned friend said in winding up the debate, Amendment No. 1 torpedoes the Bill. The passing of that amendment effectively has killed the Bill. As amended, it no longer represents government policy. Of course, the original Bill remains an important element in the Government's programme to modernise criminal justice and to reduce the unnecessary delay which causes such distress and inconvenience to the victims of crime.

Shortly, my right honourable friend the Home Secretary will make the Government's position clear, but I am now in a position to tell the House that we shall not proceed with the Bill. We shall introduce a No. 2 Bill in another place this Session.

Noble Lords

Hear, hear!

Baroness Jay of Paddington

Therefore, I propose that we suspend the Committee stage of this Bill today. I beg to move that the House do now resume.

Moved, that the House do now resume—(Baroness Jay of Paddington.)

Lord Strathclyde

I shall, of course, agree with the Motion that has been put. However, does the noble Baroness recognise that what she has just said will be met with a great deal of horror up and down the country? The noble Baroness herself said that, under the rules that now exist in this House, when there is a combined majority against the Government they will accept that and listen. She has just said that this Government, with their overwhelming majority in another place, will seek to push through another Bill under the Parliament Act against the voice and the wishes of this House. That in itself is a great pity.

Baroness Jay of Paddington

In responding to the noble Lord's final point—and, of course, I respect the opportunity to speak of the noble Lord, Lord Rodgers of Quarry Bank—I say simply that the overwhelming majority in another place is the democratically elected majority on which the programme will proceed.

Lord Rodgers of Quarry Bank

I believe that that is an inadequate reply. Given that the debate has taken place, I put it to the noble Baroness and particularly, through her, to the Home Secretary, that in the course of his winding-up speech the noble and learned Lord the Attorney-General said very reasonably that he believed that he should not continue for too long because of the entrenched views that existed. Of course, in that respect he is right. However, should it not be recognised that if the Home Secretary proceeds without further thought and reflection, that will show that he has precisely the kind of entrenched views which, I understand, the noble and learned Lord the Attorney-General was regretting?

There are occasions when this situation occurs. Therefore, would it not be wise for the Government to pause for a moment, to put up with the obvious comments about their defeat, and not to regard this matter as a humiliation but something from which they might learn? If they so wish, on the next occasion they could include a commitment to such a Bill in their manifesto. If they do that, it might pass much more readily.

Baroness Jay of Paddington

I have no wish to prolong the debate. I say to the noble Lord, Lord Rodgers, that I am sure my noble and learned friend in no way suggested that entrenched views persuaded him of a different argument. He has said publicly on many occasions that on this particular debate the Government have won the argument, and I, of course, agree with that.

Noble Lords

Oh!

Baroness Jay of Paddington

The fact that we are still in a minority in this particular House is something on which we have reflected many times.

On the question of whether or not the Home Secretary will reflect, I have said only that the Government intend to introduce a No. 2 Bill and to do so in this Session.

The Deputy Chairman of Committees (Baroness Turner of Camden)

The Question is that the House do now resume.

On Question, Motion agreed to.

House resumed.