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Lord Cope of Berkeley moved Amendment No. 1:


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.

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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

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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 be 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

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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

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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

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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.


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