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

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

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The second extremely important contribution--if I may say so without appearing invidious--was that from the noble and learned Lord the Lord Advocate. He pointed out that, in the jurisdiction of which he has specific control in this area, recognising, of course, that there are cultural, historical, traditional differences, the right to decide on place of trial is entirely vested in the prosecutor. We could have gone that way with our reform. We did not. I emphasise that. It was not because we were ignorant of what goes on north of the Border. The noble and learned Lord and I have been colleagues and friends for far too long for that to have occurred. We wanted to look at a proportionate balance to get a proportionate outcome to these difficult problems.

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

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

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

I cite briefly one or two figures. We shall not see the collapse of civilisation as we formerly knew it if this reform goes through. Every year 1.8 million cases are tried by the magistrates. Very few miscarriages of justice--I think that there has been only one--from the magistrates have ever been referred to the criminal cases review body. There is in any event the automatic right of appeal to the Crown Court, as of right, for anyone who is convicted in the magistrates' court. Last year, 400,000 either-way cases were tried by

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magistrates. If magistrates are so inept, incompetent, biased, why should that occur? Of the 65,000 cases that went to the Crown Court, 47,000 were sent there by the magistrates because they took the considered decision that it was not appropriate or proper for them to try those cases. Do they do that in a judicial, intellectual or social vacuum? They do not, because since 1995 the Lord Chief Justice's guidelines have been available for them; and, if it were thought appropriate, there is no reason why those guidelines could not be further fine tuned if the Bill becomes law.

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

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

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

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

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

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

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

Lord Lester of Herne Hill: I am most grateful to the noble and learned Lord the Attorney-General for giving way. Would he just deal with one point on the effect of what is proposed on racial minorities? Is he aware of the letter of 17th January from Sir Herman Ouseley, the Chairman of the Commission for Racial Equality, to the Home Secretary, in which, among other things, he wrote that,


    "It is the clear view of black community organisations that black defendants believe that they are more likely to get a fair hearing from a jury than in a magistrates' court. There is nothing in the statistical data or the arguments put forward that demonstrates that the removal of the right to elect trial by jury will lead to greater fairness or better justice".

Is the noble and learned Lord aware of that? How can he give the kind of reassurance in the Bill that the black community would need before we took the step of making such a change?


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