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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 "l" 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 to 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

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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

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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.

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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.

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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 mean 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.


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