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Lord Campbell of Alloway: My Lords, I agree with the noble and learned Lord that this is a difficult point. I sympathise with much of what he said about resources. Does the noble and learned Lord agree, however, that none of the examples that he has just given involves dishonesty?

Lord Williams of Mostyn: My Lords, that is entirely my point. The totem has emerged from under the stone where it formerly slept. I cited the right reverend Prelates by way of an example. The consequences of such a case for them would be devastating and infinitely worse than for a person of clean character who had stolen a minor item from Tesco or had convictions as long as one's leg (as one puts it) but

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could still elect trial by jury. I am most grateful once more to my noble colleague. By his question he has reinforced my argument.

Furthermore, quite regularly Parliament has entirely removed the right to trial by jury simply by reclassification. I give some examples. Common assault can be tried only by magistrates. Criminal damage to the value of not more than £5,000 cannot be tried automatically at the defendant's election. Other examples include taking a vehicle without consent and matters relating to vehicle road tax, which are offences of dishonesty, and driving a vehicle with excess alcohol. I give the latter example again because some noble Lords may have had the misfortune not to hear these arguments before. If one is a police driver, fireman, ambulance driver or haulier and one is convicted of driving with excess alcohol, the consequences are irrecoverable. The police driver will lose his work, his substantial pension and, if he occupies a police house, his home. That was why I ventured to say earlier that we cannot approach this in a similar way to a patient whose knee is struck by the doctor with a rubber hammer.

Lord Mishcon: My Lords, will my noble and learned friend forgive an attack from behind? Does he agree that his argument, which is always put forward so lucidly and eloquently, is that we should look at offences which do not give the accused this right and give them that right rather than remove a right which already exists?

Lord Williams of Mostyn: My Lords, attacks from behind are always the most agreeable, particularly from my noble friend Lord Mishcon. I do not agree. The overwhelming majority of criminal cases in this country--about 1.8 million (more than 95 per cent)--are tried by the magistrates. There is a school of thought, with which I do not agree, that magistrates are not capable of providing justice for their fellow citizens. If that is the thrust of the argument, let us do away with the lay magistracy. If anyone behind me or opposite me asks me how I should like to be tried if my case was coming up, my response would be that if I was run over on the pavement I should much prefer my civil case to be tried by a judge and jury, but that is not allowed. I might prefer it, but not necessarily for entirely legitimate purposes.

I put this point to your Lordships. If the resource is scarce, how do we prudently manage it? The prudent management with a fair balance of interest is to say to the defendant, "Of course you may make your choice, but your choice will not be determinative. The case will go to the magistrates and there will be an automatic right of appeal on the merits to the Crown Court". In exactly the same way--I put this point to your Lordships in the same general context--if I apply for bail, the magistrate may refuse me and I can go immediately to the Crown Court. The decision on bail, which is not to be entrusted to the magistrates, is far more fundamental in many instances than the decision on where the case should be tried. After all, if I am

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refused bail, I may lose my livelihood; I may lose my family or my home. One of the pollutants of our criminal justice system--I have no doubt in saying it and I do not exaggerate for a second--is delay.

Lord Hutchinson of Lullington: My Lords, perhaps I may interrupt the noble and learned Lord once more. I apologise for doing so. He has been wasting a lot of time on this matter and is not meeting the point. All the offences to which he has referred have been considered in Parliament and have been passed by Parliament as being suitable for summary trial. The objection here is that one magistrate, or possibly two or three magistrates, will make the decision whether certain offences--no fewer than 700 of them--will be tried summarily or on indictment. That is a totally different situation.

Lord Williams of Mostyn: My Lords, it is not. The noble Lord objects to the magistrates having the power initially--subject to automatic appeal; let that not be forgotten--to come to decisions about venue. It is venue alone, not guilt or not guilt. What can the magistrates do at the moment? They can sentence their fellow citizens to imprisonment for six months on any one charge with, in some circumstances, a total sentencing power of 12 months. They are entrusted with that. They are entrusted with decisions about bail. I return to my point. If you can trust the magistrates to determine guilt or not guilt, entrust them with the power to sentence their fellow citizens to six months' imprisonment for a wide spectrum of offences and entrust them with decisions on bail, why then is it wrong to entrust to them at first instance only, subject to automatic appeal, on the question of venue? I have never myself encountered a satisfactory answer to that.

I quote what the then Lord Advocate said during the debate in January:


    "What is essential in any system is that the various interests are balanced; that society's interests, as represented by victims and witnesses, are balanced against the interests of the accused. But what must be ensured is that the accused is protected from the effect of arbitrary decisions. Who better to perform such a task than an independent judiciary?".--[Official Report, 20/1/2000; col. 1287.]

I revert to the point about which I know the noble Lord, Lord Hutchinson, feels very deeply. If Parliament passes the Bill it will itself be saying to the judges, "Here are your limits of discretion" and we do that constantly and regularly in every aspect of the criminal justice system.

The noble Lord says that I have been wasting time. I am sorry if I have, but I wanted to put those points to your Lordships and show the respect that I have for people who disagree with me. There are powerful arguments to be mounted on this side of the argument even if occasionally they seem to be rather solitary.

We altered the first Bill by taking away the provisions relating to reputation and livelihood. Some of us took the view that the first Bill ought to have included those, but there was considerable criticism in your Lordships' House. We therefore listened, which is a common practice these days, and we responded. I say no more.

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Criteria will be set down. If the magistrates think that the offence is beyond their sentencing powers they will direct the case to the Crown Court for trial. If there are features which make it more appropriate--there are many of them which I am perfectly able to develop if any of your Lordships would like--to commit the case to the Crown Court, they will do so. There are some cases where it is better that a jury of 12 should decide rather than three magistrates or a single stipendiary. We have built in the safeguard--I hope that this will come as an additional assurance to your Lordships--that any appeal, which is automatic, as a right, will be heard by a senior Crown Court judge; that is, by the resident Crown Court judge at any centre or his nominated deputy.

During the debate on the previous Bill questions were asked about racial impact. The better evidence, I suggest, and I repeat, is that in both magistrates' courts and Crown Courts a black defendant is about six to seven percentage points less likely to be convicted than a white defendant. I know that on previous occasions it was said that perception is important. I can only repeat that perception is important, but it can never be definitive.

I hope, therefore, that I have deployed the arguments as reasonably as I may. I do not want to speak at greater length in the confident belief that others may follow that example. I commend the Bill to the House.

Moved, That the Bill be now read a second time.--(Lord Williams of Mostyn.)

4.55 p.m.

Lord Cope of Berkeley rose to move, as an amendment to the Motion that the Bill be now read a second time, to leave out ("now") and at end to insert ("this day six months").

The noble Lord said: My Lords, for the benefit of those who follow our procedures from outside, I should perhaps make clear, which the amendment does not in a direct form, that the effect of the amendment, if carried, would be to kill the Bill.

As the noble and learned Lord the Attorney-General said, we discussed the principles of the Bill fairly thoroughly in December and again in January. Your Lordships then decisively voted it down. Therefore, I do not think that I need repeat in too much detail the arguments which persuaded us against that measure. The new Bill, the Criminal Justice (Mode of Trial) (No. 2) Bill, has been altered in some respects in response to the barrage of criticism expressed at that time, but the alterations have in fact turned away some of the previous supporters of the Bill. In some respects the situation has developed in the meanwhile.

In short, however, the jury system is unchallenged for serious crimes and important cases. Similarly, the system of summary justice by magistrates for the majority of lesser cases is not affected by the Bill. The Bill, as the Attorney-General made clear, concerns the intermediate cases, the so-called "either way" cases. The ability of magistrates to refer a case to the Crown

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Court on their own initiative is affected a little by the Bill. But, as I shall explain, the big issue is the ability of the accused to insist on a Crown Court trial. We think that that is a valuable safeguard in the system and has widespread support. It was inserted in 1855, not by accident, as the Home Secretary recently suggested, but as a deliberate safeguard when trial by jury became no longer automatic in what became either way cases. That has been the position since then.

Of course I recognise, as the Attorney-General explained in his speech, that the categories into which cases fall have been altered from time to time by Parliament. Like the noble Lord, Lord Mishcon, I certainly do not rule out discussion of those categories in the future and moving or redefining offences in either direction as far as concerns those categories. But that is not what the Government are asking for here. We believe that to end the option for the defence in all these either way cases is to weaken support for the criminal justice system.

In particular, it has become clearer than ever since our previous debates that there is strong support for jury trial among our fellow citizens in the ethnic minorities. I shall not dwell on that point because I have reason to believe that others may spell it out in more detail and with more authority. However, unless compelling reasons are put forward to do so, it is wrong to weaken support for the criminal justice system. At a time when all authority is being challenged as never before, it is wrong to replace a longstanding citizen's option with a decision on the type of trial by judicial authority--magistrates and judges on appeal.

Noble Lords will note that I said, "type of trial". This is not a question only of whether magistrates or a jury decide guilt or innocence and whether magistrates or a judge conduct the trial and decide on the sentence. A trial on indictment in the Crown Court requires far greater advance disclosure of evidence and the relevant facts and all sides need to prepare their cases more thoroughly. That is why some defendants plead guilty before the Crown Court, having seen the full weight of evidence being ranged against them which they would not have had to face were they to appear before the magistrates. That is also why, not infrequently, the prosecution reduces the charges at the Crown Court stage, also leading to changed pleas. Those two factors sometimes have been ignored by Ministers and were not mentioned specifically by the noble and learned Lord the Attorney-General--no doubt in the interests of brevity--when he argued that plea changes demonstrate how defendants use the option to delay matters in spite of the greater sentences they then receive for wasting time if they are subsequently found guilty.

I stated that it would be wrong to weaken the acceptability of the criminal justice system unless there were compelling reasons so to do. The Government have suggested that delay and costs--or resources, as the noble and learned Lord put it--are such reasons. However, they are of course building potential delay into the new system. An accused who wants to cause delay under the new system can first argue with the

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magistrates for a jury trial. As we have just been told, if he is unsuccessful before the magistrates he can then appeal to the judge for a jury trial. If that is refused, the third step is for him to be tried by magistrates. If the accused is found guilty in the magistrates' court, he can take the fourth step of using his automatic right of appeal to a judge at the Crown Court where all the witnesses and victims will need again to give their evidence. This last right is not dependent on a Court of Appeal ruling that a conviction is unsafe, as happens in the higher courts. It is an absolute right. For that reason, there is plenty of scope for delay in the new system.

As regards costs, some of the predicted savings have been based on the assumption that delays will be reduced, although it is doubtful how extensive that reduction will be. Much of the highest anticipated saving--£83.5 million out of £128 million in total, according to the new figures--is expected to be made in the Prison Service, not in the courts at all. It is thought that magistrates will give lower sentences when they try intermediate cases that would otherwise have gone before a judge and jury than is generally the case with judges. The expectation is that 5,000 convicted offenders will serve an average of four months' less imprisonment, and will thus reduce prison costs. I am not sure how that squares with a policy of being tough on crime and I do not believe that it will be in any way an automatic process. The fact that on average magistrates confer shorter sentences at present does not mean, when they come to try more serious cases as a result of the Bill coming into law, that they will continue so to do.

I have doubts about the extent to which such savings will be realised. Indeed I doubt whether any savings at all will show up in the Government's accounts. I do not feel that such speculative reasons, along with the calculations that have flowed from those speculations, are compelling enough to justify damaging public confidence in the criminal justice system in this way.

Perhaps I may turn to the changes that have been made in this Bill in comparison with its predecessor, which we discussed some months ago. The most important changes concern the criteria to be used by magistrates and by judges on appeal when deciding which cases should be sent to the Crown Court. Many people, including myself, have asked how magistrates are supposed to weigh in the balance the threat to the reputation or livelihood of the accused arising from the various different types of trial. In response, the Government simply removed those criteria altogether. The new Bill specifically forbids magistrates to consider the circumstances of the accused and limits them to looking only at the offence. That misses the point that we made. The fact that it is difficult for a magistrate to weigh these matters in the balance does not mean that they are not important to the decision or to the accused. Of course they are important, but only the accused can truly judge them.

Similarly, criticism was aimed at the original Bill because a different type of trial was to be given to someone who had previous convictions. Almost every

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example of damaging time-wasting behaviour cited by Ministers concerned old lags with long strings of convictions. However, magistrates will now not be told of any previous convictions when deciding on a request for venue, so old lags, if they wish, will be able to utilise the new mechanisms to spin out matters.

However, the most crucial change in the criteria for deciding venue is the omission from the new Bill of the words "any other relevant circumstances". That is a change not only from the earlier Bill, but also one from the present position. Like its predecessors, the 1980 Act allowed the magistrates, when reaching their decisions concerning the trial venue, to take into account any other relevant circumstances and to use their discretion. This Bill does not make that provision.

The government estimate of the effect of changing the criteria in these ways is that 2,000 defendants who would have been sent by magistrates for jury trial under the terms of the old Bill will now be tried in the magistrates' court. I am not absolutely sure how the Government arrived at the figure, but they stated that 12,000 defendants who would have opted for jury trials would have received summary trials under the terms of the original Bill. They now say that 14,000 defendants will receive summary trials under this Bill; that is, 2,000 more defendants pleading "not guilty" right through to the Crown Court will be denied a jury trial under the terms of the new Bill because their personal circumstances or other relevant considerations cannot be taken into account.

It has been pointed out that these new and much more restrictive criteria for decisions on the type of trial mean that the Bill does not now implement the recommendations of the Royal Commission. In our previous debates, the noble and learned Lord the Attorney-General relied heavily--as, during the early stages, did Ministers in another place--on the recommendations of the Royal Commission. However, it has been made clear by members of the commission that this new Bill does not carry out their recommendations.

I believe that that may also mean that the support of the noble and learned Lord, Lord Bingham, for the Bill is now slightly in question--I put it rather diffidently because I certainly do not wish in any way to misquote the noble and learned Lord. However, we can see from published correspondence between him and the Home Secretary that he has some doubts about it. I should add that, since the previous discussions on the Bill, the serving Law Lords have now taken a vow of silence on matters of party political controversy. I am not quite sure if that covers today's proceedings. In any case, we shall have some authoritative lawyers to advise us in addition to the noble and learned Lord the Attorney-General, who has already done so.

In other respects, too, discussion on the Bill is affected by events since the previous Bill. During the summer we read in several newspapers--I emphasise "several" because it is often a sign of a deliberate leak when a news item appears in several newspapers at once--that the Government wanted to abolish lay

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magistrates and replace them all with stipendiary magistrates. The noble and learned Lord made a glancing reference to such a proposition in the course of his speech.


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