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Westminster Hall

Tuesday 22 January 2002

[Sir Alan Haselhurst in the Chair]

Auld Report

Motion made, and Question proposed, That the sitting be now adjourned.—[Mr. Wills.]

9.30 am

Mr. David Kidney (Stafford): It is my pleasure to lead a debate about the Auld report, "Review of the criminal courts of England and Wales", published in October 2001. The report is now the subject of consultation that will continue until the end of January. The report is substantial in every sense of the word, and it should be given serious consideration by all who are interested in the criminal justice system.

Sir Robin Auld is an experienced and senior Appeal Court judge. He benefited from the assistance of 12 consultants, and he found many commendable ways to consult during his investigation. He made the usual written requests for evidence and received more than 1,000 submissions from individuals and organisations; he consulted online, with a website that attracted yet more submissions; he held review seminars throughout the country, as well as a conference in Cambridge; and he visited Scotland, Northern Ireland, the United States of America and Canada. He fully reviewed previous inquiries and reviews, he consulted on the Government and Law Commission proposals that were being evolved at the time, and he commissioned as much research as was necessary to inform his final conclusions.

Lord Justice Auld's report is a significant piece of work. Its significance is heightened by the failure of two Government Bills on mode of trial, in debates on which opponents argued forcefully that the Government should await the outcome of the report before pressing on with their proposals. Ironically, although it was opponents who endowed the report with greater significance, it was the Government, not they, who would have benefited from waiting.

Sir Robin was asked to report within a year of December 1999. His report was published ten months later than that, so he was certainly able to give a considered view. Today's debate is timely because it comes just before the end of the consultation period, and it is right that we have the opportunity to respond to his recommendations and conclusions during that time. I had not anticipated that our debate would take place the day after the appearance of newspaper reports that the Government had changed their mind on one of the report's most important recommendations—on trial by jury in what are called either way cases—but the debate on those recommendations is better held in public.

I hope that the news reports are accurate. Although I have in the past argued and voted against both of the Government's previous proposals, I did not enjoy being a rebel. A journalist told me yesterday that I am "not one of the usual suspects" among Labour Back

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Benchers, and I would be delighted if I could return to the mainstream. I assure the Minister that I do not bear a grudge.

Mr. John Burnett (Torridge and West Devon): Does the hon. Gentleman, like me, hope that in the debate the Government will give us an accurate idea of their policies?

Mr. Kidney : Answering that delivery with a straight bat, as the consultation period has not ended, I would be disappointed if the Government leapt in and announced that they had made up their mind before people had the opportunity to have their say. I expect them to wait until after 31 January to give their final opinion—although I welcome the news reports and hope they are accurate.

Today's debate will probably focus on the controversial issues of jury trial and the proposed third tier of criminal courts. None the less, much of the report is welcome and we should not lose sight of its many excellent recommendations which I hope the Government will accept and implement as soon as time permits.

In answer to his own criticism that the present system is complex and lacks overall direction and management, Lord Justice Auld proposes a single line of national management through a new national criminal justice board, which would implement decisions at local level through a series of local boards. He also recommends a criminal justice council to ensure that the system lives, breathes, consults, gives advice and provides accountability. Finally, he recommends that our criminal law should eventually be codified—a long-term project to which all political parties probably subscribe.

I agree with Lord Justice Auld's view that there are four essentials to the efficient and effective disposal of criminal cases: a strong and independent prosecution; efficient and properly paid defence lawyers; ready access on the part of defence lawyers to their clients in custody; and a communications system. I applaud that analysis, which I hope will form the basis of the Government's plans.

I am interested in Lord Justice Auld's proposals for graduated sentencing discounts, under which people will receive greater discounts on their sentences the earlier they admit their guilt. I also note with interest the proposal for judges to give advance notification of the likely sentence in the case of an early guilty plea. Both proposals would provide a great incentive for defendants and their teams to deal expeditiously with the case. Another welcome aspect of the report is its helpful review of the rules of evidence, trial procedures, improvements to court services and jury service. That part of the report includes perhaps the most controversial proposal: that we ensure ethnic minority representation on juries in cases in which the parties identify that a race issue may be involved. Finally, the report contains a welcome set of proposals on bail decisions, not the least of which is the recommendation that we use plain English to explain them.

I turn now to my opposition to changing the provisions for trial by jury in either way cases. Lord Justice Auld presents a full analysis of the arguments for and against making such changes and the reasons why people take one position or the other. By way of

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shorthand, I shall say that I am in the camp that has a constitutional objection to making any changes. I am with Blackstone in regarding jury trial as a bulwark of our liberties, and I fear that allowing an over-mighty Government to dismantle one of those liberties will harm to our democratic society. I shall take a few minutes to explain why I disagree with Lord Justice Auld, who recommends a change.

Sir Robin Auld says that it is a matter of principle that the court, not the defendant, should decide the venue and manner of the trial. That sits strangely with his suggestion that the defendant could have the power to opt for trial by judge alone in the Crown court. Indeed, Auld goes further, recommending that defendants should be able to opt for trial by a district judge and two lay justices if the Government disagree with his other recommendations for changing trial by jury. His views on those matters are therefore inconsistent: he says that it would be a principle of the system he recommends that the defendant should have a choice, but adds that the court should make the decisions.

I have two further objections, which are not my own in the sense that Lord Justice Auld identified them. The first is that he cannot say where the public view lies on whether jury trial should be retained or changed. On page 187, he says:


The second of the two shortcomings that he identifies is a lack of current and comprehensive data bearing on the issue. He states on page 192 that much more research is required. Some of the practical difficulties recognised by Auld himself tend to undermine his conclusion.

My final objection arises from the recommendations on appeals. Lord Justice Auld recommends—on page 622—that there should be one system of appeal based on the current system applied to Court of Appeal hearings. What is serious about that is that having lost the right to elect a trial by jury, a defendant who is tried against his wishes in a magistrates court would also lose the right to appeal to the Crown court for his case to be reheard in front of a judge alone. That raises the stakes even higher in deciding whether to allow a defendant to retain the present right to elect a trial by jury in either way cases.

One recommendation with which I strongly agree is that the ability of a magistrates court to try a defendant against his or her wishes and then to commit to the Crown court for sentence should be abolished. When we last considered a mode of trial Bill, I moved an amendment to that effect on Report; I called it the Scottish amendment, because that is a rule of the Scottish system. The Government were not willing to accept it, but now that it has the backing of Lord Justice Auld, I hope that they will do so.

That reform could be implemented without changing the right to elect jury trial and would improve a position that the Government find intolerable. They allege that some defendants use the system to cause delay and extra expense. The requirement would oblige magistrates, if they accept responsibility for trying a case, also to accept responsibility for imposing the sentence. That, combined with Lord Justice Auld's proposed reforms for the efficient allocation of cases and ending committal hearings, would end the Government's objection.

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The other issue that has become controversial is Lord Justice Auld's recommendation that there be a unified criminal court system, which everybody agrees with. However, he proposes inserting a third tier between the magistrates court, with which we are familiar, and the Crown court, called the district division. There, a district judge of the criminal court would sit with two lay justices and deal with certain cases of intermediate seriousness, however defined. That is an interesting suggestion.

When Lord Justice Auld consulted on that proposal via his website, many found it interesting and the response was benign. However, I understand that adverse opinion is beginning to form and opposition is growing. Magistrates in the Stafford area dislike the suggestion, giving two reasons for doing so: first, they could not spare the time for the longer cases that would go before the district judge; secondly, losing those cases to the district judge would mean that they were required to deal with less challenging and interesting cases, and so would no longer derive the satisfaction from their work—which most do voluntarily—that they now do.

Mr. Edward Garnier (Harborough): I thank the hon. Gentleman for giving way and I apologise for having been a few minutes late for the start of the debate. In his discussions with lay magistrates in Stafford about the hybrid court—professional judge or district judge with two lay justices—has the hon. Gentleman heard a concern that I have often heard expressed by the hon. and learned Member for Medway (Mr. Marshall-Andrews), that the district judge will deal with matters of law in the absence of the two magistrates, so that the tribunal is split in terms of knowledge? The district judge might be aware of previous convictions and of evidence that he has ruled inadmissible, of which the two lay magistrates are unaware because they do not take part in that decision.

Mr. Kidney : I confess that magistrates have drawn to my attention neither that problem, nor the other oft-quoted objection, that they would be overborne by the extra professionalism of the district judge and that they would not be able to have their say. As neither has featured in my discussions with magistrates, I cannot confirm the hon. and learned Gentleman's comment.

However, drawing on my 20 years' experience as a solicitor in the criminal courts, I have considerable sympathy with the idea of district judges having a more proactive role in relation to the magistracy. It would be a healthy experience if many more lay magistrates were exposed to the practices of the district judge in dealing with cases expeditiously but with no loss of quality in decision making. A good outcome of any reform would be a higher profile for district judges in the magistracy sector of the criminal court system.

I see that the Chamber has filled up quite well with hon. Members who, I hope, have strong points of view that they want to express. I am happy to conclude by commending the report, which is a fine one. I agree with it on many points.

Mr. Robert Marshall-Andrews (Medway): My hon. Friend is a great expert at playing devil's advocate with respect to the Auld report, and he has set out many of Auld's arguments. However, given that since 1996 any

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abuse—or so-called abuse—of the process has been eradicated by plea before venue, and given that setting up a third tier would be immensely expensive and result in a system far slower and less efficient than the current one, what is the point of it? Can he summarise that?

Mr. Kidney : I accept the thrust of my hon. and learned Friend's intervention. I would be happy with a unified criminal court system that retained two tiers, in which the magistrates courts and Crown courts retained all their existing powers and defendants still had the right to elect trial by jury in either way cases. I accept my hon. and learned Friend's point that plea before venue has mostly eradicated the problem that the Government say they have identified. I accept, too, that complete eradication would be achieved by accepting the remainder of Lord Justice Auld's recommendations on discounts for early sentence, early allocation of cases and abolishing the committal procedure.

On jury trial and the district division, Lord Justice Auld identifies plenty of improvements that I support, short of the two changes I mentioned. In that, too, my views accord with those of my hon. and learned Friend. What I propose, short of making those two changes, can fulfil the Government's aim of a modern, efficient and fair system of criminal justice, which would command even greater public confidence than at present. I look forward to hearing other hon. Members' views.

9.47 am

Mr. Colin Challen (Morley and Rothwell): I congratulate my hon. Friend the Member for Stafford (Mr. Kidney) on securing this debate, to which I shall make a brief contribution.

I am one of those who rushed to get my copy of the Auld report as soon as it was published. I searched for a crumb of comfort to support my efforts to reverse the decline in the local magistracy, which in my constituency has almost completed its course. Anyone visiting Morley five years ago could, with local people, representatives of the local weekly newspaper and others, have popped into the magistrates court in the town hall and seen local justice in action—but then it was decided that the courtroom had to close. On 1 January this year, the bench was moved to a new building in the centre of Leeds. The Morley bench was subsumed into the Leeds petty sessional area and, like other things that have been deemed too anachronistic to be efficient, was consigned to history.

I do not argue that by accountants' standards local magistrates courts are a cost-effective way of listing proceedings and arranging court timetables. I note with some satisfaction that the Auld report mentions the fact that Lord Beeching did not get the chance in the 1960s to take an axe to that part of our justice system, so—at least until recently—we have had something left to try to preserve. I am not one to preserve a thing for the sake of it, and I acknowledge that the Auld report raises issues that need to be considered by the Government in relation to the sensible and necessary reform of the administration of local justice.

In our local process, magistrates court closure was seen as a foregone conclusion, with the arguments stacked up in favour of a single course of action. The court system was an important aspect of local life for

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our community—presumably, it still is in other parts of the country—and the consultation process should have been more genuine and open. The only people who seemed to be important in the process were those who were professionally engaged in it; users and the general public were not sufficiently consulted. There should be greater public involvement in such situations. If the process is perceived to be obscure and remote, fewer people will be encouraged to join the magistracy.

I am concerned about the dispersal of magistrates into a wider stream in which issues of community or locality cease to be important. Some 66 per cent. of the membership of the Leeds bench, which has 309 magistrates, live in the petty sessional area, whereas 90 per cent. of the membership of the now defunct Morley bench lived in that area. It should be borne in mind that magistrates can live up to 15 miles outside their commission area, never mind the petty sessional area. Although some people would not draw any conclusions from those figures, I would argue that locality was a major factor in recruitment. It is a question of finding people willing to serve their community.

The Lord Chancellor has said that he wants each bench broadly to reflect the community that it serves, and I agree. However, Leeds has a population of 750,000 and can be described as a community only in the broadest sense of the word. Cumbria, as detailed on page 83 of the Auld report, has a population of 500,000 and six magistrates courts, while North Yorkshire has a population of 742,000 and nine magistrates courts. Imagine the hue and cry if someone proposed the amalgamation of all those courts into just two centralised courts. People would say that the magistrates and those attending the courts would have too far to travel. That would also be my view.

Some might say that the Lord Chancellor's wish that benches should broadly reflect their communities cannot be fulfilled. I agree, but only because Leeds is treated as a single community for administrative purposes. That administrative consideration is of little or no importance. There are as many communities, not merely geographical ones, in Leeds as there are in any rural area. A one-size-fits-all approach for urban dwellers is not good enough.

I hope that a way ahead will emerge from this thoughtful review of the criminal courts. I want a modern bench that reflects the need to administer justice fairly and efficiently and can meet modern challenges. I do not deny the need for certain benches to develop specialties, and I strongly support the creation of drugs courts. However, there must be a solid link between benches, which deal with 90 per cent. of all cases going to court, and local communities. Local knowledge is important in drugs cases and antisocial behaviour orders: it is important not only for the families of victims, but for those of addicts, who, after sentences are meted out, are often called on to help in the process of rehabilitation.

There is, as I have said, a direct link between locality and the ability to recruit magistrates. I wonder to what extent making the administration of justice more remote will help recruitment. We seem to be making justice more professionalised and centralised, and I am not sure whether that is right. The basic principle of the lay magistracy—that we should be judged by our peers—is

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at stake. In these changing circumstances, we need a clear understanding of precisely how to plan to enhance the recruitment of magistrates to ensure that no locality or community is under-represented.

9.54 am

Mr. Edward Garnier (Harborough): I am grateful to be called so early in the debate. Given the number of people in the Chamber this morning, I will be as brief as I possibly can.

I begin by congratulating the hon. Member for Stafford (Mr. Kidney) on securing the debate. I understand that the slot was originally reserved for a debate about relations with China. Many look forward to seeing the standards of justice that we in this country take for granted applied there. As a member of the Great Britain-China Centre, I will be able to talk with greater confidence about the system of justice in this country if some of the most controversial aspects of the Auld report are not implemented in law.

The hon. Gentleman mentioned the most publicly controversial aspect—the middle tier of the proposed system. The report suggests a criminal court with a professional district judge sitting with two lay magistrates to deal with the intermediate level of criminal offence. As I said in an intervention, even on the face of the proposals, there are difficulties inherent in setting up that intermediate system. I do not want to take up too much time on the subject now that I have flagged it up.

I salute the hon. and learned Member for Medway (Mr. Marshall-Andrews) for all that he has done to draw the Government's attention to the unsatisfactory nature of their proposals on the reform of the jury system. He did so in the last Parliament, in which there were two Bills that dealt with the jury system, and has done so on every other subsequent opportunity.

It is fair to point out that Lord Justice Auld's proposals go much further than the Government did in their two unsuccessful mode of trial Bills. As well as the deprivation of a right to jury trial, Sir Robin urges judges to consider factual questions for juries being answered publicly, and suggests that the judge be permitted to produce a final verdict based on the answers. It would therefore, he argues, be unnecessary to trouble the jury with the law. Such a procedure would allow the prosecution as well as the defence to appeal a verdict considered to be perverse.

I declare my interest as a practising member of the Bar, although I do not carry out any criminal work except as a Crown court recorder, when I take a rather more detached and neutral view of proceedings. Sir Robin's undeniably radical proposals might benefit some lawyers and produce unending litigation in the courts, but they are not good for justice or the appearance of justice. They would not permit or allow justice to be concluded speedily in any given case.

Many people want one thing from our criminal justice system, which is finality. Although at the moment, and I dare say in future, many defendants charged with criminal offences will be deeply annoyed that they have been convicted at the end of a trial, whether in front of a magistrate or a Crown court judge and jury, they none

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the less enter into the court process with a degree of consent. If Sir Robin's proposals are taken up by the Government, many defendants, innocent or not, will not trust the system as they do now, and we will lose something important.

Any system invented by man is imperfect, and it would be foolish for any advocate to suggest that the existing criminal justice and jury system is beyond reform. I do not suggest that. Instead, I suggest that when the Government finally consider the consultation process and the content of the report, they think about the point of our system and what benefit will come to it and society as a whole if it is amended in the radical way proposed by Sir Robin Auld.

Opinions differ about the value of the report. Some people make fairly trenchant criticisms of it from start to finish. I do not belong to that camp: I think that Sir Robin and his fellow commission members have done a superb job. Whether they have in every respect come to the right conclusion—or, I should say, a conclusion with which I agree—is another matter, but I do not denigrate their work or the motives with which they approached a mammoth task.

However, I am sceptical about the Government. Since 1997, they have not demonstrated a hugely intelligent attitude towards the legal affairs side of public policy. The cruelly named Access to Justice Act 1999 showed the Government's cynical nature and their ability to misuse the English language in a way that would do credit to characters in Orwell's "Nineteen Eighty-four". The 1999 Act did not give access to justice: a more proper title would be the Denial of Access to Justice Act. It showed that in matters of public policy on legal affairs, the Government are economically illiterate, politically inept and intellectually confused. That series of epithets can be translated to their approach to the jury system.

The two failed Bills on mode of trial debated in the last Parliament were a political disaster. Their only good point is that they enable me to praise Lord Williams of Mostyn, a man with whom I often worked at the defamation Bar. He showed that if a bad case needs to be argued, a good advocate is needed to do it. When Lord Williams was Attorney-General in the last Parliament, he showed how to do one's best with terrible material. His speech in the main debate in Committee in the House of Lords showed his skills as a performer. Fortunately, however, the jury—the membership of the House of Lords—was not persuaded that the case stood up.

The Government sustained two bruisings in the last Parliament. A combination of skill, luck and sheer guts on the part of Labour Members resulted in the lowest Government majority for a Second Reading since 1997. While still a huge number, the majority of 75 was a tremendous result for the Opposition given that the Labour majority at that time was 166 or 167.

If the rumours reported in The Times yesterday are to be believed, there are signs that the Government's ineptitude is decreasing. Comments on Government proposals or initiatives do not seem to get into the newspapers nowadays unless the Government put them there, and I have no doubt that Mr. Alastair Campbell or one of his lesser satraps was busy over the weekend briefing the press about what the Government intend to

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do this week. I hope that the Minister will be able to confirm that the rumours in The Times yesterday came from Government spin doctors and represent the nearest thing to the truth that the Government recognise.

Mr. Marshall-Andrews : Before the hon. and learned Gentleman leaves the interesting question of the relationship between Sir Robin Auld and the Government, he will recollect the main problem that the Government had with the mode of trial Bills 1 and 2. First, they introduced the all-important reputation clause into the first Bill, so that magistrates would be enjoined to take reputation into account in deciding whether someone had a jury trial. Subsequently, when for obvious reasons that measure was defeated, they shifted completely and decided that magistrates should not take reputation into account. That process receives a resounding raspberry from Sir Robin Auld in his report; he roundly criticises the Government's procedure. From his examination of the report, can the hon. and learned Gentleman say what Sir Robin Auld suggests is the best course between those two, or is the report completely silent?

Mr. Garnier : The hon. and learned Gentleman demonstrates the third of my criticisms of the Government: that they are intellectually confused. No paragraph or page in the report answers his question. The Auld report is silent on that issue. That may be because Sir Robin was not hugely impressed with the Government's performance during the last two Bills. I do not want to ascribe to one of Her Majesty's Lord Justices of Appeal any political motivation or view and, as I said at the beginning of my remarks, I am confident that Sir Robin approached the matter wholly dispassionately.

However, I am concerned that it has taken many years, a great deal of parliamentary time, much anguish among those who care about our parliamentary system and—perhaps this is a small point—much public money to reach the conclusion that we suspect that the Government have reached on jury trial. I welcome any sinner that repenteth, and if the Minister tells us that the Government are rethinking the Auld report recommendations or their views about jury trial, I will be the first to congratulate them. However, they are in a mess of their own making.

I have dwelt, perhaps for too long, on the controversial element. Now, I shall draw out some practical issues that have worried me as a practising member of the Bar and a Crown court recorder. In view of time and the look of horror on your face, Mr. Deputy Speaker, I will confine myself to the issue of pre-trial preparation in criminal cases.

The plea and directions hearing procedure—commonly called the PDH—is one in which the parties to the criminal action—the Crown Prosecution Service and its representatives, and the defendant or defendants and their representatives—appear before a Crown court judge to describe, orally and on paper, issues that are likely to come up in a forthcoming trial. An indication of the plea and the issues to be tackled at trial may be given and witnesses are required. It is a hugely valuable but much misused process.

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It is misused predominantly because those who appear in PDHs are woefully underpaid for their work. Were PDHs properly and directly controlled by the judge, and were their importance heightened so that failure to comply with directions could give rise to adverse consequences for the CPS or the defendant, the pre-trial preparation of even the most simple cases, and certainly of the most difficult ones, would be greatly improved. It does not take long for a court to gain a reputation of making it clear that sloppy preparation will not do and might lead to adverse consequences for the defaulting party; nor does it take long for the Crown Prosecution Service office to realise that if it appears before his honour Judge Such-and-Such without having got its tackle in order four, five or six weeks before the trial window, it will not have a trial, and the Government will be down on the CPS for failing to meet whatever target the Government have invented for that particular week.

I urge the Government, instead of wasting their time and my money and that of my fellow citizens on building middle court—echoes of the middle kingdom—buildings, to concentrate on the nitty-gritty of the part of the administration of justice system that is susceptible to change and in which change will produce beneficial results, not only for the Government and the Chancellor of the Exchequer, but for the wider citizenry. That will improve the willingness of witnesses and defendants to come to court, to do what the court asks, and to play their part in the criminal justice system.

If they stick to the simple things, the Government might have greater success. If they get stuck in grandiose schemes, they will merely make fools of themselves—or even greater fools of themselves than they have in the past few years.

10.10 am

Mr. Peter Lilley (Hitchin and Harpenden): I welcome this debate, which gives us an opportunity to recognise the immense contribution made by Lord Justice Auld, even if we do not sympathise with the line that he has taken. He has produced a major report that is clearly and powerfully argued.

The timing of the debate is fortuitous. New Labour fought the 1997 election in defence of the right to elect for jury trial, which the then shadow Home Secretary strongly opposed any attempts to remove. Having been elected, the Government reversed their position and decided to put two Bills through Parliament—both of which, happily, were defeated—to abolish the right to trial by jury. Labour's manifesto for the last general election contained a commitment to abolish the right to trial by jury. We now learn through the columns of The Times that the Government propose to abandon that position too. That shows an appalling lack of consistency, other than to betray whatever pledges they were elected on. I hope that the Minister will not try to seek safety in silence. If the Government's spin doctors can inform the press about their position, Ministers can inform the House of Commons.

I approach the debate with some apprehension, because I suspect that I am the only Member here who is not a lawyer and has no legal qualifications. My first mention of lawyers in the House when I was a new and junior Member was to quote Falstaff, who said,


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I wondered why there was a chill throughout the Chamber, then realised that on that occasion, too, I was the only non-lawyer speaking on a legal matter.

Mr. Burnett : The Minister is too self-effacing to make this admission, but I shall do so on his behalf. He is not a lawyer.

Mr. Lilley : In that case, I look to him for a healthy dose of common sense.

Although I am not a lawyer, I participated actively in our discussions of these matters in the last Conservative Cabinet. Those discussions must remain confidential, but suffice it to say that the outcome was, to my satisfaction, that we did not commit ourselves to the abolition of jury trial, although we consulted on the Narey report.

Mr. Garnier : I am sorry to interrupt my right hon. Friend, who has hardly started his remarks. We did not want to get rid of trial by jury, but neither, according to its manifesto, did the Labour party. Its manifesto said that it would


It made no mention of abolishing trial by jury. The problem that the Government face is that they have said one thing but want the world to believe another.

Mr. Lilley : I am afraid that Lord Justice Auld intensified that problem by equating the right to jury trial with the right of the defendant to elect for jury trial. He said that there was no right to jury trial until 1855, and that it was only when people had the opportunity to escape the panoply and problems of jury trial that that right could be said to exist. That is of course nonsense created by those who wish to pretend that it is a relatively new creation and has nothing to do with the traditional rights of the Englishman to be tried by jury for any serious felony.

I claim no great legal expertise, but I am conscious that, although the general public are unaware of most of our judicial principles, there are some that they value and in which they have great confidence. Above all, they would have confidence and trust in the system of jury trial in the event of their facing a serious charge. I was therefore very reluctant to contemplate any attempt by the previous Conservative Government to diminish the right of access to jury trial, and I was even more hostile to this Government's including such proposals in a Bill. I was also suspicious of the provenance of the arguments in favour of such proposals, which are redolent of bureaucratic and professional disdain for lay involvement in the judicial process.

It is natural for members of a profession to feel that their own expertise outweighs the contributions of lay people, but I fear that such feelings are in part responsible for proposals that the judicial establishment has outlined time and again in various reports, culminating in that by Lord Justice Auld. His report is underpinned not just by hostility to the right of defendants to elect for jury trial but by a deep mistrust of jury trial as such. My suspicion is that this marks not

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the concluding stages of an argument that will be resolved, one way or another, by deciding whether defendants should have the right to choose jury trial, but the beginning of a process that will erode the use of juries altogether.

I am afraid that close reading of Lord Justice Auld's report has enhanced my suspicions. It is true that it contains valuable proposals on improving the way in which juries work and on increasing public participation in juries. Those of us who believe in juries should not pretend that they are perfect and incapable of improvement. Instead, we should endorse, support and adopt proposals to improve the working of jury trials, and advance our own. However, the report also contains proposals that would further erode the use of juries. Under them, many issues would be deemed too trivial for juries to consider, and would be considered instead by the new tier of district courts. Others, however, including fraud, are deemed too complex for juries. Lord Justice Auld proposes not only that fraud be removed from the purview of juries but that all cases of similar complexity be so removed in the long run. As my hon. and learned Friend said, juries would no longer have the last word on the question of guilt or innocence; instead, their conclusions would be subject to review by judges. Young people, too, would be removed from the purview of juries. Lord Justice Auld is eroding the involvement of juries in our judicial system in a number of ways, and undermining the very principle of such involvement. If, according to his logic, most cases are either too trivial or too complex for juries, what role is left for them?

The Government's case for abolishing the right to choose jury trial, which Lord Justice Auld endorses eloquently and emphatically, rests on a number of presumptions, including that the right of election is a powerful tool that is widely manipulated and abused by experienced criminals to escape their just deserts, and at great cost to the taxpayer in the form of expensive trials. Lord Justice Auld endorses the argument of Ministers that by removing that right they can simultaneously prevent such abuse, ensure that criminals get their just deserts and save large sums of taxpayers' money. Moreover, they assert, as has Lord Justice Auld, that it is wrong in principle for the defendant to choose the venue and that that decision should be made by the system.

Those points are blown apart by the evidence. Above all, it cannot simultaneously be true that experienced and hardened criminals are manipulating the system to get off lightly and that if we removed that right it would make great savings to the system, when it is revealed that those savings come largely from those people facing shorter prison sentences or none at all. The Government, Lord Justice Auld and those who defend the proposition cannot have it both ways. Nor can they have it both ways by saying that it is a matter of principle that decisions about venue and mode of trial be taken by the system on objective criteria, not by the defendant, and yet proposing, as Lord Justice Auld has done in a further effort to narrow the scope for juries, that the choice of mode of trial, in the case of the new trials for fraud and complex cases, be given to the defendant, to sweeten the pill. If it is wrong to allow defendants the right of choice in normal either way cases, why should they be given the right of choice where attempts are being made to prise jury trials further out of the system?

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We must examine the report extremely cautiously and not allow it to weaken further the role of juries in our system. I asked a question about how many people had served on juries during the past 12 months, and the answer was 187,000. That is very considerable lay participation. Those people, by and large, take their role seriously and are, overwhelmingly, satisfied that, despite their loss of time and remuneration while serving, they have done something worth while and contributed to the justice and civic fabric of society. If we reduce such people's involvement in the judicial system, and the prospect of involving them, we lose a very valuable point of contact between the ordinary public and the judicial system.

I return to the positive aspects of the Auld report. Lord Justice Auld has proposed means of encouraging more people to participate in the jury system. Some three times as many as that 187,000 people had to be invited to serve on juries before a sufficient number who were willing to do so could be found. We must make serving on a jury easier and more of an obligation. Lord Justice Auld highlighted an inherent unfairness in the system, a comment endorsed by the hon. Member for Stafford (Mr. Kidney), which would be made far worse were the right to elect for jury trial removed. That is where the lower court, having heard a comparatively minor case because it deemed it within its competence, and having convicted the defendant, subsequently passes him to the Crown court for a more serious sentence because it decides that the case was more serious than it initially led people to believe.

We must remove that manifest unfairness, which made the Government's previous proposal intolerable. Far better to leave defendants the right to elect for trial by jury, with the knowledge that if they opt for the lower court, they will be sentenced within its sentencing powers with no subsequent right for the lower court to refer to the Crown court. That is a proposal in Lord Justice Auld's report that I hope that Parliament and the Government will endorse and implement in due course.

10.23 am

Mr. John Burnett (Torridge and West Devon): I declare an interest straight away. I am a lawyer, although not a criminal lawyer.

I congratulate the hon. Member for Stafford (Mr. Kidney). He has a record of steadfast and principled opposition to the Government's previous attempts to abolish jury trial for either way cases. I pay tribute to him and to the hon. and learned Member for Medway (Mr. Marshall-Andrews), who is also here in the Chamber. It takes great courage, as I believe you know, Mr. Deputy Speaker, for a Government Back Bencher to oppose his Government's proposals.

Whichever way it goes, Sir Robin Auld recommends that a defendant should no longer have an elective right to trial by judge and jury in either way cases; that allocation should be the responsibility of the magistrates courts alone. There will be serious argument and, no doubt, lengthy appeals from magistrates' decisions in borderline cases, but it is important to state a few principles—principles to which the former Home Secretary and the former Attorney-General adhered before 1997.

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In proposals to end the elective right to jury trial in either way cases, the public's confidence in our legal system is at stake. In this country, a person who is in serious difficulty with the law—an offence meriting up to two years' imprisonment is serious—knows that he automatically has the right to opt for trial by jury: his guilt or innocence will be determined by ordinary people. I stress that the public can and do identify with and relate to juries.

I know that time is tight, but I must emphasise that minorities, especially those from ethnic minorities, have little trust in our criminal law system, as the Lawrence inquiry report makes clear. Abolishing jury trial for either way cases will do nothing to build up the confidence of ethnic minorities in our system. It will further erode that confidence.

I shall deal as swiftly as possible with one or two points arising from the report. First, the Government must have some views on availability for jury service. Presumably there will be exclusions for lawyers and employees of lawyers, especially if there is a conflict of interests, and for the police and employees of the police, but do the Government expect there to be other exclusions? I suspect that there will be exclusions for members of the armed forces. Will there be exclusions for Members of Parliament? Perhaps it would be a good thing if we did jury service.

The Government must also have some ideas about their ambitions for the middle tier—the district judge, who used to be known as a stipendiary, sitting with two lay magistrates.

Mr. Kidney : I do not want to lose the hon. Gentleman's point, but I am interested in the Liberal Democrat view. All the classes that he mentioned, including politicians, are currently subject to disqualification. Sir Robin says that we should sweep all that away and decide each on a case-by-case basis, considerably widening the jury service base. What does the hon. Gentleman think about that?

Mr. Burnett : I would like as many people as possible to be eligible for jury service, but clearly, where there is a conflict of interest, it would not be practical for certain people to serve on juries.

To return to the point about the middle tier and the Government's ambitions in that respect, their view is presumably that the judge or district judge should decide questions of law on his or her own, with the lay magistrates and the district judge deciding questions of fact. Do the Government believe that it can be appropriate in any circumstances for a district judge to decide questions of guilt or to be a party in a triumvirate that decides questions of guilt or innocence if he is aware of, for example, the defendant's previous convictions? I am anxious to hear the Minister's response to that.

Lord Justice Auld proposes a system in which a district judge will sit with two lay magistrates. From which category of society will those lay magistrates in the middle tier come? I suggest to the Minister that they will be older, retired, eminently respectable individuals. They hardly comprise a representative group. The Government's programme of closures of rural magistrates courts has led to several retirements from the bench in my constituency: for example, a young

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mother in a one-car family is unable to afford the daily four-hour travelling time from her house to Plymouth and back. Where will they find magistrates who are able to sit for three or four days at a time? That duty will fall on retired middle-class people—an admirable group of people, but not representative. An exclusive group will not encourage confidence in justice.

Mr. Marshall-Andrews : Are the hon. Gentleman's concerns addressed by the wording of Sir Robin Auld's report on that critical point? About magistrates, it states:


Does the hon. Gentleman have confidence in that assertion?

Mr. Burnett : As usual, the hon. and learned Gentleman hits the middle of the target. The quotation begs the question that I have raised. Drawing from a small pool of unrepresentative individuals is likely to do nothing to encourage confidence in the justice system.

Before the Government make their decisions on the Auld report, I hope that they will put certain information in the public domain. We want to see open and intelligible costings, especially in connection with the establishment of the middle tier. Will the Minister encourage his colleagues to avoid specious comparisons with the Scottish system? Will the Government provide detailed reasons why there would be time savings if a middle tier were established? May we also have an accurate record of the effect of the changes made in 1996 that allowed heavier sentences to be imposed when defendants plead guilty at a late stage?

I commend to the Government the study by Professor Vogeler on the matter of guilt decisions in Germany, where a system similar to the middle-tier system prevails. Interestingly, that report concludes that lay magistrates play little role in making guilt decisions, which are invariably made by the professional judge.

Finally, I ask hon. Members to consider the way in which they would elect for trial if they were charged with an either way offence. I know what I would do.

10.33 am

Mr. Humfrey Malins (Woking): I begin by congratulating the hon. Member for Stafford (Mr. Kidney) on securing today's debate and on the way in which he opened it. His speech was thoughtful and reflected the hard work that he has put into this subject over several years. We look forward to hearing further from him when these matters are debated in the House. I also pay tribute to the work done by the hon. and learned Member for Medway (Mr. Marshall-Andrews) in the last Parliament on a subject about which he feels passionately, as do many other hon. Members.

I declare an interest in these matters as a solicitor of many years standing, a recorder of the Crown court and a deputy district judge, formerly a stipendiary magistrate. I speak from experience. However, I am told

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that I must be careful not to suggest any policies on behalf of my party, particularly any that might involve money. If I do so, Mr. Deputy Speaker, take no notice.

The Auld report is a huge undertaking of more than 650 pages. I congratulate Lord Justice Auld on his tremendous work. His report is full of the most thoughtful and interesting ideas and proposals, and although many of us disagree with some of the proposals, it is right that we all pay tribute to his work and that of the others associated with the report, which gives us all the opportunity to delve into the minutiae. Like all Governments, the present Government legislate too much on criminal justice matters. I hope that when they legislate on the major issues contained in the report, the House will be given ample time to discuss them.

Speaking not for myself alone but for my party, we were delighted yesterday to read press reports that the Government are likely to backtrack on jury trials. As my hon. and learned Friend the Member for Harborough (Mr. Garnier) said, the Conservative party is united in believing that jury trial is a shield against an over-mighty state. That is a matter of principle to us—and to me. We fought long and hard in the previous Parliament against the two Government Bills on mode of trial, both of which were poor. The best arguments came from those opposed to the Bills.

If the proposals suggested by Lord Justice Auld are introduced, we will have a problem because jury trial will be weakened and that will be a bad thing. If we have fewer jury trials and more professional judges, it will bring us more into line with the systems of our European partners, but it will result in the citizen gradually and subtly being removed from the judicial process. It is the place of the citizen in the judicial process for so many years that has created a sort of confidence in the system. Like the hon. and learned Member for Medway, I ask whether it is necessary to change the system. Why are the proposals likely to be taken up by the Government?

I do not think that the so-called tiers of courts and the removal of the right to jury trial are necessary. It is understood that jury trials are expensive. I heard a year or two ago that jury trials cost about £8,000 a day, but I do not measure fairness or justice by how much they cost. It is said that the right to jury trial is widely abused by defendants, but that is not my experience. Things have changed in the courts: the introduction of the plea before venue has altered things dramatically, and the Narey courts with early indicated pleas have helped. Early guilty pleas entered in magistrates courts work well.

Do I, when I sit in court, occasionally see what I regard as an abuse by a defendant? Yes, but not very often, and when I see it, I scratch my head and think, "Perhaps this is an abuse, but it is a small price to pay for the greater good, the jury system in which I believe our citizens have the greatest possible confidence." I do not believe in the theory that a trial before a jury is better, any more than I believe that a trial before lay magistrates or a district judge is better. That is not the question. The question is whether millions of our citizens instinctively feel that they would be happier with something that has been enshrined as a right for so many years—trial by their peers. If the answer is yes, as I believe it is, the arguments for change must be compelling before we interfere dramatically with a system that has worked so well.

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The two Government Bills on mode of trial in the previous Parliament were deeply flawed. The question arose whether a person's reputation would be affected by a decision on whether they should have a jury trial. Another issue was whether the powers of punishment available to the magistrates court would be sufficient. The Government proposals were weak and were seen to be so by all those who helped to ensure that they did not reach the statute book.

The matters of the unified criminal court and the middle tier involving a district judge and two magistrates are difficult. I understand that Lord Justice Auld suggests that the district judge should be accompanied by two experienced magistrates. The hon. Member for Torridge and West Devon (Mr. Burnett) and the hon. and learned Member for Medway made a most interesting point—who would those magistrates be? Trials before that jurisdiction will not last an hour or two, as they do before a district judge sitting alone; they will last a day or two, or three. We all know that people who are available for two or three days at a time come from a limited sector of society.

I am concerned about the observation that the judge would be solely responsible for law, but an equal finder of fact. One can envisage all sorts of difficulties. If during the case the advocate for the defendant said that a point of law had arisen, the lay magistrates would retire. The point of law—which would of course be about the ability of the defendant's advocate to lead the defendant as a man or woman of good character—would be put. The district judge would make a ruling having heard about the defendant's background, and that ruling would stand. Back would come the lay magistrates. At the conclusion of the case the district judge would go out with the lay magistrates jointly to consider the verdict. Is that not rather odd—very artificial? The district judge would know things that the lay magistrates would not.

Mr. Marshall-Andrews : In those circumstances, what would happen if the lay magistrates said, "We think that there is a strong case, but we are not going to convict because this is a man of good character," when the chairman knew perfectly well that he was not? Would he say, "Well ... up to a point?" [Laughter.]

Mr. Malins : The hon. and learned Gentleman is absolutely right. The district judge could not say, "Just between you and me, I heard something earlier that might make you take a different view." It is a difficult question.

I am worried to see that in cases before the district judge and two lay magistrates, the judge would be solely responsible for sentence. That would be unfortunate for the magistrates sitting with the district judge. The more I study the proposals, the more I think that, as well as damaging the jury system, they have the potential to damage the lay magistracy. I strongly support our lay magistrates: they do a wonderful job. I think that we have got the balance between lay magistrates, district judges and trial by jury about right. If, as I suspect they would, the report's proposals damaged the lay magistracy, that would be a sorry state of affairs. Lay magistrates have the huge advantages of being local and not being professional.

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Having spoken about jury trial I shall conclude with a few observations about other contentious aspects of the Auld report. I do not wish to express any particular views about them today—I just want to draw attention to them, as they will be debated at some length later. I hope that the Minister will explain to us more about the position on juries. Also, I want him to take back to Government Departments the message that when the Auld report comes up for debate, many of the issues will on their own merit a day or two of debate.

The report refers to double jeopardy—an issue with which we are all familiar. The Select Committee on Home Affairs, whose report on double jeopardy and reform of the law I commend, spent weeks on it. Whether a further charge should be permitted for circumstances in which scientific evidence can clinch a case is a big question. The declaration of previous convictions is also worth a day and a half on its own. To what extent should we trail or permit to be trailed before different courts the previous convictions or behaviour of a defendant?

An aspect of the report that troubles many of us is the comment about perverse verdicts. Lord Justice Auld says that


That is an interesting proposition. In my view, the point of a jury is to produce a verdict that it believes to be right. It is well argued that if a jury comes back with a verdict that the judge does not like, that is the end of the matter and it is not open to the judge or the state to say, "I do not like this verdict. The evidence suggests that it should have been different." I take no position on the point, but I draw attention to it as a very contentious subject of future debate.

Finally, there is the question of ethnic minority representation on juries. The Government's proposals on jury trial might act against the interests of ethnic minorities in inner cities, especially those who for obvious reasons feel disadvantaged. We should examine with some care the proposition that when race is likely to be a relevant issue, a jury selection including up to three people from the ethnic minority group should be made. That is a matter of some difficulty.

To sum up, first, we must and will fight for the maintenance of trial by jury. Secondly, we must not make wholesale changes in our criminal justice system unless there is a compelling reason to do so. Finally, when the matters contained in the report come before the House, the Government must give time for them to be debated and argued properly.

10.48 am

The Parliamentary Secretary, Lord Chancellor's Department (Mr. Michael Wills) : I would like to start, Mr. Cook—

Mr. Deputy Speaker (Mr. Frank Cook): Order. Perhaps it would be to the benefit of all hon. and right hon. Members to recall that the House in its wisdom, or otherwise, decided last Wednesday to reinstate the position of Deputy Speaker in Westminster Hall. That position is held by Nicholas Winterton, John McWilliam, Edward O'Hara and me. The title will be displayed in front of the Chair for those who cannot

22 Jan 2002 : Column 197WH

remember it. For other members of the Chairman's panel, the term Chairman or the Chairman's name would be adequate.

Mr. Wills : I apologise, Mr. Deputy Speaker. That had slipped my attention. I will not fall into that error again.

I congratulate my hon. Friend the Member for Stafford (Mr. Kidney) on securing an important and timely debate. It is important to give a full airing to all the issues, and I welcome the opportunity to reply to the debate, to which I have listened with great interest. Reform of the criminal justice system is vitally important and inevitably provokes intense interest, and often controversy. We are listening carefully to all the responses to Lord Justice Auld's review, which was published in October. We have conducted consultations in Bradford, Cambridge, London, Exeter, Birmingham, Manchester and Cardiff, and we have heard some lively views—many of which have been repeated here.

Every speaker today has paid tribute Lord Justice Auld's work, which represents the most extensive review of the criminal court system for 30 years. It is some 700-plus pages long and contains more than 328 recommendations, many of which are radical and fundamental. It is an important contribution toward the Government's aim of establishing modern, efficient criminal courts that suffer few delays, are in touch with the communities that they serve and respond to the needs of their users. I must put on record the Government's gratitude to Sir Robin for his extremely thorough and thoughtful work.

When the report was published, we made it clear that we would, before we made any decision, listen carefully to the views of public, the political parties and all those working in the criminal justice system, in order, as far as possible, to gain a consensus for enlightened and effective reform. As all hon. Members are aware, the consultation period ends on 31 January 2002. For that reason, if I may respond to the intervention from the hon. Member for Torridge and West Devon (Mr. Burnett), it would be wrong of the Government to reach or announce any decision before that date.

Mr. Burnett : Will the Minister tell me the genesis of yesterday's article on the front page of The Times, headed "Ministers' revolt saves trial by jury"? Where has that come from?

Mr. Wills : I will deal with yesterday's papers in a moment. First, I shall finish my point about the fact that we shall not respond in substance until the consultation has concluded and we have had a proper chance to consider all the views.

That process is taking place not only in Westminster Hall. We are receiving representations from members of the public and from people who are involved in the system throughout the country. We want to give proper consideration to every view, and we are not yet in a position to form an opinion. We also wish to consider Sir Robin's recommendations in the light of other reports on the criminal justice system such as "The Way Ahead", which we published last year, and the Halliday report.

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While I cannot make substantive comments on Lord Justice Auld's review, it would be helpful if I set out the Government's underlying approach to the criminal justice system.

Mr. Lilley : Will the hon. Gentleman give way?

Mr. Wills : Yes, but if I give way to many more interventions, I shall not be able to respond in great detail.

Mr. Lilley : The Minister said that he would respond to the question about The Times. As I understand it, the Government have always said that their commitment to abolish the right to choose jury trial would not depend on the Auld report—they had already reached a final decision on that. If they have now changed their mind, the Minister should be aware that there is more joy in heaven over one sinner who repents than over 99 just men who need no repentance. Can we be sure, however, that the repentance is final—or will their reneging be further reneged?

Mr. Wills : I am always happy to give way, but the more Members intervene, the less time I shall have to respond to the concerns that have been raised. I shall come to that point, but it is worth first explaining our underlying approach.

We want a criminal justice system that is in touch with the communities that it serves, that is efficient, fast, fair and responsive to the needs of all who use it, that is co-operative in its relations with the criminal justice agencies and that uses modern and effective management to reduce unnecessary delays and remove them from the system. Those aims will be paramount when we decide our response to the Auld report.

Several hon. Members mentioned the reports in yesterday's press, which still seem to be of intense concern. The Government cannot dictate what newspapers publish—[Laughter.] Astonishing though that may be, it is the case. Nor can we prevent papers from speculating about Government policy; that is how they sell themselves, and they will continue to speculate, no matter what the Government say or do. I must, therefore, disappoint the hon. and learned Member for Harborough (Mr. Garnier): he cannot take such reports as evidence that we are thinking again, because we are still thinking about the matter for the first time and shall not conclude that process until after 31 January.

Mr. Burnett : Will the Minister give way?

Mr. Wills : Yes, but I have only five minutes to respond to a lot of points.

Mr. Burnett : Does the Minister refute the article by Frances Gibb and believe that she had no grounds whatever for writing it?

Mr. Wills : With the greatest respect to the hon. Gentleman, I have clearly set out the Government's view on such newspaper stories. Our position is still being formulated and will be made clear at some point after 31 January, when consultation concludes.

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In the four minutes that remain, I shall briefly respond to some of the issues that have been raised. Inevitably, much attention was focused on the recommendations for juries, and I shall have to confine my remarks to that issue. The overwhelming bulk of the discussion focused on the proposed abolition of the defendant's right to elect for jury trial in either way cases.

The hon. Member for Woking (Mr. Malins) mentioned some other recommendations, which have excited little interest in popular debate. The recommendation on so-called perverse verdicts, for example, has not surfaced at all in any of our roadshows. We have real doubts about the proposals on perverse verdicts, but we are keen to find a way forward. Difficult issues have been raised, and we are listening carefully to all the views that are being expressed.

The hon. Gentleman raised another important issue that has not been widely mentioned: the ethnic composition of juries. Again, we have concerns in principle about that, and particularly about the effect on random selection, which is a cornerstone of the jury system.

I turn briefly to concerns about Lord Justice Auld's views on the abolition of the defendant's right to elect for jury trial in either way cases, which clearly excite a great deal of comment. We are still considering the matter carefully. It is clear from our manifesto that we share Sir Robin's concerns, and we agree with the principles behind his recommendation. We are, however, aware of the sensitivities that surround the issue, and we are deeply and acutely aware of its importance to the public. We must consider our decision on Sir Robin's recommendation with particular care, and the views that have been expressed with great force today will contribute to our consideration.

Several hon. Members mentioned the unified criminal court, but we have not reached a decision and are currently seeking views. We are encouraging wide debate on the matter and, indeed, on all the other recommendations. Sir Robin's proposal for an intermediate tier to form part of the unified criminal court is thought provoking. We are considering it carefully and intend to continue to listen carefully to views on how to proceed.

I shall refer briefly to the future role of magistrates. It is worth stating again that we share the view expressed by almost all hon. Members who spoke of the central importance of the lay magistracy to our criminal justice system. Sir Robin endorsed that view in the report. We remain fully committed to maintaining lay magistracy and community justice as a cornerstone of our criminal justice system.

The debate has been extremely useful and vigorous—

Mr. Deputy Speaker (Mr. Frank Cook): Order. Time is up.


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