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Lord Mackenzie of Framwellgate: Does the noble Earl suggest that, in the case cited, the wife of the noble and learned Lord, Lord Mayhew, would have received a lesser degree of justice in the magistrates' courts as opposed to a jury trial in the Crown Courts?

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

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

Baroness Mallalieu: I have no doubt that the motives of the Government in introducing the Bill in its present form are good. To try to save money in the criminal justice system is laudable, provided, of course, that it is not at the expense of the quality of justice which the system can deliver. It is also desirable,

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from everyone's point of view, that delay is reduced to the minimum for both witnesses and the accused. It is also right to try to reduce the prison population for those on remand in custody and those sentenced to longer terms than are necessary. Yet I cannot support the Government over this measure and I shall support the amendment.

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

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

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

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

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

Equality before the law is a principle which I believe should never be sacrificed if we can possibly avoid it. We would all, I think, agree that one law for the rich

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and one for the poor is wrong. But so, surely, is one mode of trial for the deserving and another for those of little consequence. That is just as wrong.

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

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

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

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

4.45 p.m.

Earl Russell: I listened with interested to the noble Lord, Lord Lipsey. I take the point that he makes about absolutes. I take the point the point that he makes about considering costs. Those are real questions, but when they are posed, I listen with care to hear what overwhelming argument is put into the other side of the scale; to hear what reason is given for

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sacrificing things to which--I believe that it is common ground--many noble Lords on all sides of the House are attached.

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

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

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

The noble Lord, Lord Lipsey, touched also on the question of whether black defendants are more likely to be convicted than white. I recently listened to Mr Imran Khan, solicitor to the Lawrence family, discussing precisely that question on "Newsnight". He was entirely certain that black defendants face a greater prospect of conviction unless they have the chance of hearing by a jury. First, Mr Imran Khan's livelihood depends on giving correct advice to his clients on

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precisely that question. Secondly, many of those who have disbelieved Mr Imran Khan have lived to regret it. Here we reach the point most vitally conceded by the noble and learned Lord, Lord Bingham of Cornhill, in reply to my noble friend Lord Hutchinson of Lullington. The noble and learned Lord conceded that there may be a perception that jury trial is the fairer, even if that perception may not be justified by the facts.

That was a vital concession, because we are concerned here not only with the actual doing of justice, but with what is perhaps of equal importance: the reputation of the criminal justice system itself. It is not only defendants who enjoy a reputation. If the public do not believe that most of those convicted in court are guilty, the force of the condemnation in court itself is greatly diminished. As the Earl of Strafford remarked in 1637,


    "A prince that loseth the force and example of his punishments loseth withal the greatest part of his dominion".

Here I return to the point about black defendants. A great many black defendants believe that where they are heard by a jury, their own community is involved in the process. It is precisely that sense of being involved in the process which the jury system gives us. It is that which leads, in a great many cases, to a consent being given to a condemnation by a jury which would not have been given to a condemnation by a magistrate, even if that condemnation were in fact justified.

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

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


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