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Lord Donaldson of Lymington: My Lords, is the noble Lord correct in saying that magistrates' clerks advise them in chambers? Even when I was on the Bench, I understood that the law had been changed, thereby requiring them to advise in open court.

Lord Thomas of Gresford: My Lords, I have taken advice on this matter. I understand that it still happens, although the recommendation is that it should not happen.

The greatest lack of transparency in the criminal justice system is in the appointment of magistrates and judges. It is in the hands of the Government, without any independent input. The Lord Chancellor consults widely but in secret. He is a significant political figure. There is no route up the judicial ladder save through him. No one would pretend that the judiciary at any level, whether in the magistrates' court, on the circuit bench, in the High Court or beyond, is representative of the general community in age, in gender, in ethnic background or in educational background. It is not representative: juries are.

Despite the total control over appointments, it is rather strange that this Government do not trust those concerned to do what is right. They have introduced mandatory life sentences: judges are required to pass sentences that they may well believe to be contrary to the justice of the particular case. Unlike juries, they cannot cock a snook at repressive legislation.

In the rush for "modernisation", it is easy to denigrate history and tradition. I believe we had a prime example from the noble and learned Lord the Attorney-General when he referred to "ancient totemic beliefs". He conjured up the picture for us of a totem pole underneath a stone, crawling out from under it. I was rather confused by that. But the temper of this country, its love of liberty, its desire for fair play--indeed, the actual spirit of this country--both fashioned and, in turn, was nurtured by the common law. When the jury in Bushell's case in 1670 refused to convict William Penn of preaching to an unlawful assembly as the Crown demanded (they were locked up without food for two nights), they were released by the Chief Justice of that time and their right to be free of government influence and punishment was then established.

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Going back in history, the noble and learned Lord the Attorney-General said that this is not about Magna Carta. The right to be tried by one's peers--the pares, the equals--was an important part of the Great Charter of Liberties, Magna Carta, and was confirmed on a number of occasions, notably on 3rd May 1253 in Westminster Hall. At that time, the Archbishop of Canterbury and other bishops apparelled in pontificals and with tapers burning, pronounced the Great Curse. They excommunicated, accursed and sequestered all those that by any craft or wiliness violated, broke or diminished the liberties contained in the Great Charter, together with all that secretly, openly by deed, word or counsel, do make statutes or observe them being made against the said liberties. So that is exactly what the Government are doing now.

Not every country in this world shares the temper that we enjoy--the liberal values. For example, in China there are 4,000 years of a tradition of deference to authority. I can tell your Lordships that a Hong Kong jury is a tougher proposition for a defence counsel than an Old Bailey jury.

In my view, this Bill runs against the grain of this country. Our arguments against the absurd claims for costs savings that were made as regards the last Bill have been accepted and are no longer relied on. The attempt to introduce a two-tier system into the Bill about which we complained last time has been abandoned. The argument that we heard today from the Attorney-General was put forward on the basis of delay. He talked about the prudent management of resources. It is all this "new speak" that we, as recorders and part-time judges, see when we are sent charts and graphs to show how cases have been disposed of. The great word is "disposal". It is more important to dispose of cases than to ensure that justice has been done.

As the noble Lord, Lord Cope, said, this profound change was never a manifesto commitment. As he also pointed out, both the Home Secretary and the Attorney-General condemned similar proposals put forward under the previous government. It has been reintroduced in a fit of pique and with the threat of the Parliament Acts behind it. If the Government are seeking to wheel out the siege gun of the Parliament Acts, they should bear in mind that those Acts have been used only five times since 1911: the Government of Ireland Act 1914; the Welsh Church Act 1914; the Parliament Act 1949; the War Crimes Act 1991; and the European Parliamentary Elections Act 1999. Will this Government seriously use the Parliament Acts to introduce this legislation, contrary to the wishes of a significant proportion of their own Back-Benchers?

That threat was perhaps made in more arrogant times. As we were told today, we have a Government who listen:

    "Is there anybody there? said the Pensioner,

    Knocking on the PM's door".

I am sure that some noble Lords will recall that poem by Walter de la Mare. I think I came last in the school eisteddfod in 1954 in reciting it. The answer to that

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question is, "Yes, only a host of phantom listeners!" That is what this Government are--phantom listeners. Noble Lords will remember that the traveller in that poem calls:

    "Tell them I came, and no one answered,

    That I kept my word".

The poem concludes:

    "Never the least stir made the listeners,

    Though every word he spake

    Fell echoing through the shadowiness of the still house

    From the one man left awake".

When this House rejects the Bill again, I sincerely trust that Mr Straw will himself awake and realise the full implications for the ancient liberties and freedoms of the people of England and Wales that his measure represents.

5.38 p.m.

Lord Ackner: My Lords, at the outset of my submissions to your Lordships perhaps I may respectfully, as always, raise two questions. The first question was referred to--certainly indirectly--by the noble Lord, Lord Cope. We were told recently by the Prime Minister that the Government are not arrogant or that, if they are, they have ceased to be so. We have been told that the Government do listen or that, if they have not listened adequately in the past, they will do so in the future.

My first question is, "Why don't you wait and listen to one of the most experienced Court of Appeal judges on criminal matters, Lord Justice Auld? You appointed him to consider, among other things, this very question. You imposed a time limit on him which has caused some people to refer to him as the poor man's Harry Woolf. Having imposed that time limit, you propose to ignore it". This non-arrogant, ever listening Government propose to invoke the Parliament Act to force through a decision with which he may disagree in a few months' time. My question is: why? What is the rush? What is the hurry?

For over 25 years we have considered this question. Why, all of a sudden, does it have to be forced through in this way? If that is not arrogance, I do not know what it is. If it is not a sign that the Government are deaf to reason, I do not know the reason.

My second question relates to a well-known interdepartmental committee presided over in 1975 by Lord Justice James. He was assisted by 12 other members of that committee. Some were ordinary practising lawyers. One was a chief magistrate. Another was a circuit judge. Lord Justice James and his committee took a great deal of time to consider that which he was asked to consider; namely, the distribution of criminal business between the Crown Court and the magistrates' courts. Like the Butler Committee, which dealt with the question of sentencing people suffering from mental disabilities, its recommendations have been forgotten or, perhaps worse, suppressed. I wonder why that is. I shall endeavour to indicate just how relevant that committee and its report were.

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The interdepartmental committee reported in 1975. Paragraph 47 on page 23 of the committee's report states that the central issue of the inquiry was how the mode of trial of offences in the intermediate category--that is what we are dealing with--should be determined. It was pointed out that within the framework of the present system there were three possibilities as to who should decide whether an offence within the intermediate category should be tried summarily or by judge and jury on indictment: the prosecution, the court or the defendant.

The possibility of the court determining the forum attracted most attention and in order to stimulate discussion the committee suggested that the magistrates' court should decide the mode of trial of offences in the intermediate category. Under this scheme a person would have the right to make representations about the mode of trial but the final decision would rest with the court. If the magistrates' court decided on committal for trial, that decision would be final. But if it decided to try the case summarily, both parties would have a right of appeal to the Crown Court against that decision. How on earth does that differ from the issues raised before your Lordships?

Twenty-five years ago an interdepartmental, objective committee dealt with the matter, but the report has been suppressed. My question is: why? But before I ask that, I remind your Lordships of the conclusions of the committee. Your Lordships may consider that it is important.

Paragraph 59 of the interdepartmental committee's report needs to be set out in full. It reads as follows:

    "Despite the weight of support for the proposed decision that mode of trial should be taken by the Magistrates' Court, we finally rejected it for several reasons. First, there would be an inherent difficulty in the Court having to decide the importance of the case. It would be difficult to lay down appropriate criteria for the Court to apply and there would be a danger of their being applied inconsistently by different Courts"--

is that not the brief answer to the Mode of Trial (No. 2) Bill?--

    "Secondly, the strong opposition of many of those who made representations and gave evidence upon this issue showed that the suggestion was unlikely to be acceptable to a wide sector of the public. Thirdly, a proposal to substitute the decision of the Magistrates for the defendant's right to elect Trial by Jury is unattractive in so far as it would lead to the Magistrates trying summarily a case ... which the same Court, albeit differently constituted, had refused the defendant's request for Jury Trial. The Court would be placed in an invidious position if a defendant simply took objection to the Magistrates' Courts generally or to a Magistrate personally. Fourthly, a procedure involving the Hearing and Determination by the Magistrates of representations about the mode of trial, possibly a trial before different Justices and the establishment of an appellant process--

which is the key, of course, to the refuge of the noble and learned Lord the Attorney-General from the madness of the Royal Commission's proposal, to which I shall refer later--

    "would be a potential cause of delay in the disposal of business and would create an additional task for both Magistrates' Court and the Crown Court. Fifthly, although the majority of defendants consented to Summary Trial, both the OPCS Survey and the Sheffield Research show that defendants themselves attach great importance to the choice of forum at present vested in a defendant.

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    Most of those who at present elect Trial by Jury do so for reasons connected with the possibility of conviction: they think that they will get a fairer trial, or that their case will be considered more carefully, or that they have a better chance of acquittal in the Crown Court. What matters to them is the fact of conviction or acquittal, except in the most serious cases, where the defendant knows that if convicted he will receive a substantial sentence of imprisonment, the loss of a reputation or loss of livelihood rather than the possible sentence may well be what is uppermost in his mind. But these are matters which are related not only to the particular offence but also the personal characteristics of the defendant. A professional person of good character, if convicted of a minor offence of dishonesty, for example, will suffer in reputation and may lose his livelihood, whereas for a person with a long record of similar offences the only penalty will probably be the sentence actually imposed. This suggests that if the Magistrates' Court were to decide the mode of trial, it would be both necessary and right for it to have regard to the consequences of conviction for the defendant, which would inevitably involve considering his character and standing in the community".

This is what I stress; it is virtually the end of the committee's conclusions.

    "It would be quite unacceptable for the Courts to discriminate in this way. It would offend against the principle of equality before the Law if particular classes of people or people of some standing in the community were able, in effect, to choose their tribunal, while others were denied that choice. Jury Trial should be available either to anyone charged with a particular offence, regardless of his personal position or to no-one".

Those were the grounds. It sums up the entire debates that we had. It sums up to date what has been advanced to your Lordships. Why has this been suppressed? I do not know. Is it perhaps because those very grounds would add force to the present Home Secretary's protestations when in opposition that it would be quite wrong to accept such a proposal because of the consequences.

The views of the interdepartmental committee provide considerable support to those of the noble and learned Lord the Lord Advocate, expressed, I emphasise, not in the heat of the debate but in an obviously well considered and extensive article written by him when in opposition in The Times welcoming the Royal Commission's report. The article starts with the fulsome compliment that,

    "in almost every respect, the Report of the Royal Commission on Criminal Justice is a masterly piece of work".

However, he ends the article with the following terse observation:

    "The serious blemish in an otherwise admirable report is the proposal that in those cases where the accused can now opt for Trial by Jury this right should be removed, and in cases where the Crown Prosecution Service does not agree to Trial by Jury the Magistrates would have the power to decide. This would be madness. There are delays and inefficiencies at present, but the way to deal with them is to improve the mechanics, not to erode a fundamental liberty. How will a defendant feel about this case if he has failed to obtain a Jury Trial and has his case heard in the very Magistrates' Court that refused him his present rights? I hope that Parliament will refuse to countenance legislation of this kind".

When the noble and learned Lord replies, I hope that he will tell us the ingredients of the proposal which amounted to madness. They have all faded. Why? It is said because of a right of appeal. There is no novelty in that. That was considered by the interdepartmental committee as part of its proposals. The right of appeal

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was put forward by Mr Howard, the then Home Secretary, in his proposals which were debated and castigated by the present Home Secretary.

I hope that there will be two satisfactory answers to the two questions I have raised: one relating to Lord Justice Auld and one relating to the interdepartmental report. The position is very worrying indeed because there appears to be a lack of frankness which should be one of the characteristics of this House. I strongly support the proposed amendment.

5.54 p.m.

Baroness Mallalieu: My Lords, there may be those in this House, particularly on the Benches which I occupy, who are concerned about rejecting a Bill which has been sent to us by another place, the elected Chamber. It is worth, therefore, looking at what happened in the other place when the Bill was debated at Second Reading on 7th March of this year.

When he opened the Second Reading debate on the Bill, the Home Secretary said that the proposal had the unanimous backing of the Royal Commission on Criminal Justice. Professor Michael Zander, who served on that commission, has since made it clear that this Bill in its present form does not have his backing.

The Home Secretary said to the House that the Bill,

    "enjoys the active endorsement of the Lord Chief Justice, Lord Bingham".--[Official Report, Commons, 7/3/00; col. 886.]

However, the letter which the Lord Chief Justice had written to him on 22nd February, before that speech, and which was placed in the House of Commons Library after the honourable Member for Medway, Mr Marshall-Andrews, on 25th July obtained an undertaking from the Home Secretary to do so, states:

    "Your conclusion"--

about the form of the Bill--

    "causes me concern. I think there are dangers in excluding consideration of anything which is relevant in the given case".

If that is active endorsement, I shall eat my hat!

The Home Secretary went on to tell the House of Commons that the vast majority of High Court judges--in the ordinary course of events they do not try this type of case--the Magistrates' Association and all three police associations gave their blessing to the Bill. Perhaps in the light of what was said there, which no doubt persuaded that House to give this Bill a Second Reading, we should go back briefly to first principles.

The criminal justice system is not there for the benefit of the judges, the magistrates or the police. It is not there--I declare an interest as a practising member of the criminal bar--for the benefit of the lawyers, the Home Office, the Treasury or the government of the day. The criminal justice system is there for the benefit of the people of this country. If the rule of law is to be preserved, it is necessary that the people, not just the professionals, have confidence in its fairness.

Juries sometimes return verdicts which seem inexplicable on the face of it. On occasions it is clear later that a jury has got it wrong. But, for all that, the

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jury system over the years, and up to present time, has kept the confidence of ordinary people quite simply because they believe that it is the fairest system of trial. Whether they are right or wrong--I make no criticism of the fairness of either lay justices or stipendiary--public perception is crucial because public confidence is the basis of respect for the rule of criminal law. We erode that confidence and take away those provisions at our peril.

Most of those who appear before the criminal courts are young men. Many are from poor or deprived backgrounds. Quite a few come from ethnic minorities. Despite every effort and encouragement to widen representation of those communities on the bench, most magistrates still come from a very different world from those who appear before them. The result is that, given the choice, most defendants who want to fight their case will say, understandably, "I want my case to be tried by people like me, people who will understand the situation I was in because they or their families or friends have had similar experiences".

Defendants may also want 12 fresh minds to look at the evidence and hear their account, not one, two or three people who have already tried many similar cases, sometimes involving the same police officers. There are other factors that lead people to choose a Crown Court trial. More disclosure will be given in a Crown Court. The jury, unlike the magistrates, will not hear or see evidence that is subsequently excluded by legal argument.

There is also a greater chance of pleas to lesser charges being accepted. My learned friend--that is what I would call him in court; I meant to say the noble and learned Lord the Attorney-General--said that 60 per cent of people plead. That is partly because only at the Crown Court does someone of sufficient seniority apply their mind to what the correct charges should be. Above all, when people hear that the chances of acquittal are vastly greater in the Crown Court, they choose the Crown Court--and so would we all, except, apparently, the Attorney-General.

The Attorney-General tugged at our sensitivities, referring to people who have to wait for trial, sometimes for a long time. He mentioned rape cases and child witnesses in particular. I am glad to say that one of the developments that has become increasingly apparent under this Government is the making of provisions for cases involving children to be fast-tracked. I cannot conceive of a situation in which the theft of a banana--which was the example given by my noble and learned friend--would take precedence over a case in which a young child witness had to give evidence.

The line is drawn arbitrarily. As the noble Lord, Lord Mishcon, said, some offences with very serious consequences can be tried only by magistrates. However, this proposal to remove the right to elect trial in middle-tier cases was not in the Labour manifesto at the last election--I think that I read it fairly closely.

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Two reasons have been given for introducing the Bill now: the first is delay and the second is pressure on resources. However, the system that the Government believe is more desirable has different built-in delays. Up to four separate hearings could replace the existing two. On each occasion, the defendant will be represented. Witnesses may have to give evidence not just once, but twice, with the complete rehearing that an appeal before a Crown Court would involve. New and different delays would inevitably creep in.

In the other place, the Home Secretary said that appeals from the magistrates about venue would be fast and efficient. He said that they would be heard by a resident judge or someone who was nominated by the presiding judge of the court and that they would be likely to be heard within 48 hours. Those of us who often wait outside courts for large parts of the morning while the judge in front of whom we are in the process of conducting a trial deals with a multitude of applications for bail, pre-trial reviews, applications for adjournment, and so on, know that existing trials are often delayed, resulting in something that might have taken a day or two being extended to twice that length because of applications that have to be dealt with in a hurry. The Government seem to be proposing that up to 14,000 other such hearings will be added each year to the Crown Court. I wonder whether those delays and the existing costs caused by jurors, by witnesses and by existing Crown Court trials being held up were considered when the Home Office produced its assessment of the resources that would be saved. The noble and learned Lord, Lord Williams, has not mentioned figures. He simply talked about resources being saved.

When this matter was before us previously, it was claimed that £120 million a year would be saved. I trust that that is now accepted to be pure speculation, because it seemed to be based on a guess that 14,000 applicants a year would be refused permission to be tried in the Crown Court, that any appeal that they chose to make to the Crown Court would fail and that as a result prison costs would in some way be saved by shorter sentences and shorter remands. The figure was never remotely substantiated.

As we all know, Lord Justice Auld is currently conducting a review of the criminal justice system that covers that topic. The Government are apparently not willing to wait for his report. I hope that we are not going through an exercise today on an issue on which the Government have already made up their mind. I say that because I cannot help but notice the large number of appointments being made at the junior Bar in the past year all over the country to a position that is new since my time as a junior--the assistant stipendiary magistrate. I suspect that the Government are anticipating an inevitable difficulty that they would face if there were a large number of further summary trials. It is very difficult today to get lay justices together again for any case that lasts more than a day or so. If we bring in part-time lawyers who will sit in judgment alone and reach their judgments far more quickly, and I have to say far more cheaply, than lay justices or full-time stipendiaries, it might just be

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possible to get through the workload. I hope that I am not being suspicious, but I wonder what other work those new appointments are being prepared for.

As the noble Lord, Lord Thomas of Gresford, said, the right to elect trial by jury has always been seen as the principal safeguard for minorities and dissenters who fear that they are likely to be unpopular with judges or the establishment. It is perhaps ironic that tonight it falls to the House of Lords, which is always regarded as the embodiment of the establishment, to protect that safeguard. I shall support the noble Lord, Lord Cope, in the Division Lobby later.

6.6 p.m.

Lord Mayhew of Twysden: My Lords, I shall begin with a remark that will attract the approval of all your Lordships. I have deleted much of what I was going to say from my intended speech because it has already been said more elegantly and persuasively than I could hope to do.

Another comment that will attract the support of many of your Lordships is a compliment to the noble and learned Lord the Attorney-General. When he last addressed us on this subject, I presumed to say that his performance had made me proud to be a member of his profession. I should have said that it had made me even prouder. Tonight, that pride has, if possible, increased, although not quite to bursting point. Though wonderfully elegant, his argument was, alas, insufficient. He dwelt lovingly and movingly on the anomalies in the present legislation which provides that many cases of importance shall not be eligible for jury trial. I am afraid that my withers were unwrung, even when he pointed out that one of the right reverend Prelates who might be charged with kerb crawling would not have access to a jury.

My withers were unwrung because it is your Lordships' duty, as it is mine, to assess the value of the right that government propose to take away from those who currently enjoy it. We must then ask ourselves whether any argument has been put forward to justify taking it away. The fact that other people do not have it is not the point. If the balance needs remedying, it lies with the Government to remedy it. In my few short remarks, I propose to question the merits of the Bill by that criterion.

It is true that the Bill does not abolish jury trial, but it substantially diminishes the right to choose it. For those defendants whose right to choose jury trial will be taken away, it amounts to the same thing. Therefore, I suggest that the Government's reasons need to be examined with a good deal of care. When one boils them down, their reasons come to this: there is a right to jury trial and it is very important; far be it from us ever to suppose that we would wish to take it away; however, the trouble is that it is being abused and we must take action. That in a nutshell is the Government's case.

I am afraid that whenever a government, for their own purposes, wish to deprive some people of their rights, they say that they are being abused. Sometimes that may even be true; sometimes it is not. However, in

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those circumstances it is always upon the Government to discharge the burden of proving that it is necessary to correct an abuse which is happening.

In the present case, I believe that your Lordships should hold that the Government have failed to establish that there is an abuse; they merely assert that there is one. There may have been an abuse once but since 1986--we have heard nothing about this as yet in the debate but we know it from the Home Office's own paper--the proportion of cases that arrive at the Crown Court by way of election for trial by jury has been falling steadily and substantially from 53 per cent in 1986 or 1987 to 28 per cent. I rather think that the figure is now 23 per cent. I hope that we shall be told what the figure is when the noble and learned Lord replies.

The Home Office does not know why a smaller proportion of cases is going to the Crown Court. However, plenty of commentators have a very good idea. They suggest that it is because, first, since 1986 the Court of Appeal has made it very clear that if one unjustifiably changes one's plea to guilty when the case comes to trial, one is liable to attract a penalty in the sentence. That is now enacted in statute. Secondly, they suggest that it is because the procedure for taking a defendant's plea at the magistrates' court now provides that it must be taken before the question of whether or not one goes for trial by jury is allowed to arise.

There is a third point which I suggest is quite significant. Where a not guilty plea is changed at the Crown Court to one of guilty--a point already made by the noble Baroness, Lady Mallalieu--typically it is because on a review of all the circumstances of the case the prosecution has concluded that the justice of the matter will be met by accepting a plea of guilty to a lesser offence. All such cases are included in the statistics. If that is the case, it is in the public interest that that course should be followed. I am quite certain that the noble and learned Lord the Attorney-General, who is responsible for the Crown Prosecution Service, would give no support whatever to the canard that that happens because the CPS has somehow been leant on or wrongly pressurised.

That is why I must conclude regretfully that the purpose of the Bill is still in one way or another to save costs: either to save costs or to avoid spending more money. That can, of course, be a laudable purpose but not where the price of it is disproportionate and causes grave damage to our liberties. Another way was suggested by the noble Lord, Lord Mishcon. He said that, if the balance is wrong, why does one not correct it by creating more Crown Court judges if that is necessary in order to enlarge the right to jury trial.

Why is the incursion on our liberties grave? I suggest that it is grave because there is great value in the traditional common law right of defendants to be tried for dishonesty by a random jury chosen from our fellow citizens when the alternative is perceived to be trial by a permanent, case-hardened authority--or permanent, case-hardened authority figures, as they have been described--who will be on familiar terms

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with professional witnesses who appear regularly before them. I say that that is the perceived alternative and if the right to go for trial by jury is removed that will be a very serious matter. I believe that that perception is particularly present among black defendants.

I have never heard anyone challenge what I have put forward on more than one occasion to your Lordships in this House with an illustrative scenario which I shall not repeat: that a harassed but wholly honest housewife will reasonably and rationally believe that her innocence of shoplifting, let us say, will be more likely to be accepted by a jury. I have never heard it challenged that she may rationally and reasonably believe that. If she does, why should she not continue to have that right? Theft is dishonesty and a conviction for dishonesty when one is innocent is a disaster for anyone, even if it does not lead to a term of imprisonment.

If, as a defendant, one wishes, in the old language of the law which has now gone, to put oneself upon one's country and go for trial by jury, I suggest that this House should preserve that right, even though it may cost a little. I believe that the Government should withdraw the Bill or that it should be defeated.

6.15 p.m.

Lord Simon of Glaisdale: My Lords, I regard it as a great privilege to follow the noble and learned Lord, Lord Mayhew. He was a most successful and admired Law Officer, so he speaks with knowledge of the prosecution process. Moreover, he mentioned the viewpoint in this debate which most appealed to me: that we are taking away from a citizen an existing right. It is a right that has existed certainly since 1855 but which in fact goes back far further, having its origin in Magna Carta.

Lord Devlin, in his famous lectures on trial by jury, said in the encapsulation of a cogent, closely argued and deeply thought-out argument that each jury is a little Parliament. So it is. I use the language of the noble Lord, Lord Cope: very strong evidence is required to take away from any citizen access either to the big Parliament or to the little Parliament--the right to trial by jury. The jury is after all the forensic microcosm of political democratic society at large. However, that is what we are asked to do.

Obviously the Government are not tyrants. They do not propose to abolish the jury system or Parliament and there is no need for the frequent disclaimers that we had in the other place to that effect. However, the noble and learned Lord the Attorney-General put it very well in his letter of 1993. My noble and learned friend Lord Ackner quoted a phrase from it which convicted the noble and learned Lord the Attorney-General of a complete volte face. So it does. However, he is not the only great statesman who has changed his mind and we must not hold that against him. However, what he said, not only in the passage about it being an act of madness, was that the way to deal with delays and inefficiencies was to improve the mechanics, not to erode a fundamental liberty. The word "erode" is the

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danger here--the chipping away of liberty rather than the subversion of freedom. We must guard lest we are eroding what he called "a fundamental liberty".

In the end it comes to this. Trial by jury is the people's justice. It is decision by the people, for the people and of the people. Just as we respect what Lincoln said on the battlefield of Gettysburg, we should be equally careful where we are considering the microcosm of the democratic process.

There is another great advantage of the jury system. It has been recognised since ancient times that hard cases make bad law. At the same time it was recognised that good law could throw up hard cases, because the law deals with the generality of cases. If an attempt is made to deal separately with every hard case that it throws up, there would be no rule of law at all. There would be palm-tree justice and a lurching from one case to another, so that the citizen would not know under what law he stood. There are several ways of dealing with hard cases, but by far the best way is trial by jury. The jury can allow for the hard case without making bad law at all, because it is the judge of the facts.

When this matter was discussed last year the noble Lord, Lord Shore, pointed out that, by returning what the establishment would regard as perverse verdicts, juries have not only protested against a law which they regarded as harsh and oppressive but have managed to secure by their successive acquittals a change in the law.

I have only one question about cost. When the No. 1 Bill came before your Lordships, if my memory is correct, the savings were estimated at £105 million. The figures were fairly bogus then, but that was the figure claimed. The savings are now estimated at £128 million. Why is there that difference? With the impact of plea before venue, the tendency should be the other way. But, as the noble and learned Lord, Lord Mayhew, said, in the end it is not simply a question of cost, because there is no price to be put on justice. There is no price to be put on perceived injustice.

Burke famously said:

    "The age of chivalry is gone.--That of sophisters, economists, and calculators, has succeeded".

Let us not have to say that in place of chivalry the people's justice has passed.

Finally, I deal with the parliamentary aspect. There is no reason at all, no constitutional convention, which bars a vote against this Bill with approval of the amendment tonight. This is not a manifesto commitment. On the contrary, on 27th February, 1997, less than two months before the election, the Home Secretary made absolutely plain his opposition to the proposal. It was with his words ringing in its ears that the Labour Party went into the general election.

It is to be hoped that your Lordships will, having listened to the cogent, splendid speeches that have preceded mine, which have really left no argument put forward unshredded, vote for the amendment.

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6.26 p.m.

Lord Borrie: My Lords, when this House was discussing the first Bill last December I ventured to suggest that when Parliament discussed changes in the way in which criminal trials are conducted that it would be helpful to have researches available into that question. Specifically I criticised the statutory prohibition that currently exists on even the most carefully devised and officially authorised research into the deliberations of juries which is imposed by the Contempt of Court Act 1981.

Since December I have had the benefit of seeing some of the results of studies of jury trials in New Zealand--whose law does not forbid such studies--conducted under the authority of the New Zealand Law Commission, and I am grateful to the noble and learned Lord, Lord Cooke of Thorndon, for putting me in touch with that body.

The New Zealand findings are a refreshing insight into how juries behave; to what extent they comprehend; to what extent they follow the directions and instructions of judges; what further help can be given to them to do their job better, and so on.

This Bill is not the only change to the way in which trials are conducted that is contemplated. There are in the wings the Government's consultation paper on fraud trials and the forthcoming report on Lord Justice Auld's criminal courts review. If tonight's vote goes in the Government's favour I intend to propose an amendment to this Bill which will facilitate jury research.

I am the first speaker since my noble and learned friend the Attorney-General this evening to favour the objective of the Bill. I do so because, in determining whether or not there should be in this intermediate category of offences a trial by jury in the Crown Court or by magistrates, it substitutes a decision by a court in place of the existing automatic unfettered, untrammelled right of election by the accused to say where he will be tried. In principle, it seems to me that an objective judicial determination, taken after considering all the circumstances, is a more sound basis for determining where the trial should be held.

On the last occasion, although not this evening, my noble and learned friend quoted from the 1993 Royal Commission report. That report stated that defendants should no more be entitled to choose the mode of trial that they think will give them a better chance of acquittal than they should be able to choose the judge who they think will give them the most lenient sentence.

A judicial decision as to mode of trial would surely better ensure justice and fairness. I mention to your Lordships that it is not just a matter of justice and fairness to the accused, important though that is. It is also a matter of justice for the victim, for the other witnesses and for the community and for the community's interest in ensuring that undue delay does not occur. Those interests deserve to be considered as well, and they are not served if the accused has, and continues to have, a completely unfettered right to determine where he shall be tried.

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Your Lordships will have noticed that there is a useful improvement in the Bill compared with the No. 1 Bill in that magistrates must give reasons for their decision as to mode of trial. Needless to say, the accused does not give that, yet everyone else must accept the accused's choice under the present system.

On Second Reading of the first Bill a number of disparaging remarks were made about magistrates and magistrates' courts. Yet surely everyone must accept as a sheer practicality that magistrates must decide, wherever the lines are drawn, now, in the past or in the future, the vast majority of criminal cases. We must all accept that even those offences which are triable only by magistrates can involve serious loss of reputation and serious risk to livelihood. My noble and learned friend the Attorney-General today referred to a whole range of offences where that is the position.

It seems to me that if magistrates are fit to try cases that are certainly not trivial and which have serious consequences for people's reputation and livelihood and all the rest of it, then they are fit to settle the mode of trial.

I thought that instead of the disparaging remarks that I recall being made in this House in December last, a more measured tone was adopted by a former Attorney-General in the House of Commons in the course of debates on this No. 2 Bill. Sir Nicholas Lyell said:

    "Conservative Members are not saying that magistrates are unsuitable to try either-way offences. They have been held to be perfectly suitable to try them--and I think they are",

but then he added the phrase,

    "if the accused accepts it".--[Official Report, Commons, Standing Committee D, 6/6/2000; col. 53.]

To my mind, if magistrates are perfectly fit and suitable to try either way offences, surely that fitness cannot be dependent upon whether or not the accused wants it and elects. It seems to me that if the position is that magistrates are fit to try either way offences, then that is surely the case, irrespective of the accused's own preferences.

Nowhere else in the world does the accused determine where or how the trial is to be conducted. It is not done anywhere else in the world at the behest of the accused and solely in his own interests. So I favour the objective and thrust of the Bill. However, I consider that the present Bill is rather less likely to achieve the Government's objectives of greater efficiency, fairness and justice to all concerned than the proposals of the Royal Commission of seven years ago.

I say that for a number of reasons. One has been mentioned by the noble and learned Lord, Lord Mayhew. The number of either way cases now going to the Crown Court has already considerably reduced since either about that time or since 1996. One can mention that especially because the Act of that year introduced the plea before venue.

Secondly, the introduction in the No. 1 Bill and in this Bill of a right of appeal against the magistrates' decision not to send an either way case to the Crown

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Court must inevitably cause a delay in a proportion of their decisions as to venue. The Government have given an estimate of 25 per cent of those who would have elected to be tried by a jury and whom the magistrates have decided to try will appeal. That estimate and the estimates of the number of those who will go for a full oral hearing and so on must be speculative and imprecise. But surely we can all agree that the right of appeal must cause some delays in some cases and, therefore, detract from some of the purposes of the original Royal Commission proposal.

Thirdly, I mention the provision in this Bill that the decision as to venue must take account of the circumstances of the offence but not take into account the circumstances of the accused. The Bill also says that the court must consider whether it has sufficient powers of punishment. That makes only partial sense to me at best because it is not allowed to take account of the circumstances or record, if any, of the accused. Without that, how can the court tell whether or not it has sufficient powers of punishment?

We all know why the Government have made the changes to which I have just referred--to meet the objections raised in this House and elsewhere that to allow the circumstances of the accused to be considered would be to give advantage to the middle-class or professional person, since his livelihood is very likely to be adversely affected by a conviction.

Of course, there are working-class jobs which are just as likely to be affected. Examples were given in the House of Commons; for example, the long-distance lorry driver or the school caretaker who, accused of theft, would be at serious risk of losing his job. But the generalisation that better-off defendants are more likely to be allowed trial by jury if their personal circumstances are considered is true. Yet not to permit, and for this current Bill to prohibit, the circumstances of the accused to be taken into account seems to me to be counter-intuitive, perverse, unfair and unjust to individual defendants. The Government's change of heart in this No. 2 Bill seems to be a triumph of political correctness over justice.

In principle, I still favour this Bill. But it has not been improved as it has progressed. I do not believe that the Government's objectives are as likely to be achieved now, as the Bill is currently drafted, as was formerly the case. Decisions as to venue should be made by judicial authority rather than as a result of the outcome of choice by one party to the proceedings; namely, the accused. The choice which was provided in 1885 was and still is something of an oddity. But changes in the law and changes in experience since the Royal Commission report in 1993, changes made to the commission's proposals and to the first Bill make me feel that the Bill is much less likely to achieve what is intended than was the case.

I am not convinced of the urgency for the Bill. Lord Justice Auld has been asked to look at the criminal justice system as a whole. I personally should like to see the outcome of authoritative studies of jury trials to assist further consideration of

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the system. The Government have my vote this evening but those are the doubts which I have about the decreasing value of the Bill over a period of time.

6.39 p.m.

Lord Hutchinson of Lullington: My Lords, those who oppose the Bill will be encouraged to hear that the support is crumbling, having heard what the noble Lord, Lord Borrie had to say. His view that this Bill is worse than the first is encouraging to us all. However, this Bill is as dangerous as the first Bill was. In my view it is also patently absurd. Its danger can be spelt out shortly, yet again. It gives an unprecedented power to a single stipendiary sitting alone, or two or three magistrates together, to deprive the citizen of his or her historic democratic right to trial by jury in a huge swathe of over 700 offences covering all except the most serious crimes.

That democratic right has now been described by the noble and learned Lord the Attorney-General as the defendant's diktat. I only hope that in saying that he was speaking as a Labour Minister and not as the head of my own great profession. It was encouraging to hear from the noble Baroness, Lady Mallalieu, that at the Bar the views of the great judge Lord Devlin still prevail and that the matter is still one of principle there.

That right has always been based on principle, that no one should suffer more than trivial punishment or loss of liberty without a prior verdict, not of an appointee of the state but of his or her fellow citizens. In that way the ordinary citizen is bound into the criminal process forming a central pillar of our democracy and one of its greatest safeguards. That process is described now by the leading government lawyer as merely a matter of court management.

Clause 1 of the Bill spells out how that imperious power is to be exercised replacing Section 19 of the 1980 Act under which the magistrates today must consider, above all, whether the case before them is serious. The new Clause 19 makes no mention of seriousness. The reason for that astonishing omission is pathetically clear. What makes a case serious for a defendant in 90 per cent of cases is the effect of a conviction upon his reputation or livelihood. Only he can know that. That was recognised in the first Bill and strongly recognised by the Royal Commission. But if we remove those considerations from the Bill altogether, logically we have to remove any consideration of seriousness. What is left? This is why I say the Bill is absurd: the magistrates are then left to consider only the nature of the case and the circumstances of the offence in a complete vacuum. Their task becomes ridiculous. One can go on until one is blue in the face considering the nature of the case and the circumstances of the offence. One can say, "Is it long? Is it short? Is it violent? Is the offence dishonest? Is it white? Is it black?" One could go on for ever but that consideration has to be directed somewhere. It has always been directed to the question, "Is this offence a serious offence?" Without that consideration, I suggest that the task of the magistrates becomes

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absurd. Thus, as we have already been told, Professor Zander rightly now denies any support from the Royal Commission for the Bill.

Equally--the point has been made; I make it again--how can a court consider adequacy of sentencing powers when it does not know whether the person in front of it is a paragon of virtue or an old lag? Surely that is absurdity. At present a defendant will, in general, accept the fairness of the procedures in court. Eventually, most defendants come to accept the verdict. Here, what is the position? The defendant will be forced to accept trial by a court against his will; by a court which has refused his request apparently because his case is not serious when he knows that a conviction will be complete devastation for him or his family. His appeal is to be to a local judge in close touch with the magistrates who, in the defendant's perception, will suffer from the same shortcomings as they do and who will have every incentive to save his brother judges from trying what in their view are trivial cases.

What happens then? On conviction, he may be sent up to the very court that he had asked originally to go before because now, lo and behold, his case has become too serious. That is a recipe for distrust, resentment and contempt of the system. It is a lottery as every Bench and stipendiary across the country exercises discretion in inconsistent and different ways. We were reminded by the noble and learned Lord, Lord Ackner, that the James committee foresaw that all those years ago.

There is another cause for distrust. I refer to the cynical and unprincipled approach of the Government to what is a serious issue of human rights, spun by Ministers as just a modest procedural change or, as the noble and learned Lord said today, a matter merely of court management. At every stage of the last Bill and of this one, Ministers have claimed the support of the Royal Commission, the Lord Chief Justice and the judiciary. But what did the Minister say when the commission reported? Unfortunately I shall not have the pleasure of repeating again the comments of the noble and learned Lord the Attorney-General. That has already been very well done by the noble and learned Lord, Lord Ackner. But what did the Home Secretary say on 27th February 1997 in the other place, at col. 433?

    "Let me refer to the [Home Secretary's] proposal [Michael Howard] to end the right of many defendants to elect for trial by jury, even though they may face charges of dishonesty, and their reputation and their whole future may be at stake".

That obtains just the same today as it did in 1997. He stated:

    "Surely, cutting down the right to jury trial, making the system less fair, is not only wrong but short-sighted, and likely to prove ineffective".


    "If a police officer, a Member of Parliament or even a Secretary of State were charged with an offence of dishonesty--

there is dishonesty again--

    "would they not insist on being tried by a jury?".

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"Insist" is the word he uses; that is, no doubt, to assert the defendant's diktat. They would insist on their fundamental right to jury trial; they, not the court, knowing that their whole future may be at stake. He concluded by asking,

    "why should others be denied that right?".--[Official Report, Commons, 27/2/97; col. 433.]

Why, indeed? Now his solution in this Bill is to deny everybody that right. "Ah", say Ministers, "a right of appeal to a Crown Court judge alters everything". That is their alibi, referred to many times in the passage of the last Bill. But that will not wash. If we read carefully what Mr Straw went on to say, we see this:

    "Will not forcing mini-trials on magistrates, the delays that may occur where there is an interlocutory appeal, simply worsen the delays?".

Those are exactly the points that we, the opponents of this Bill and the last, repeatedly made.

I remind the House of the words of the Attorney-General: that the way to deal with this is to improve the mechanics, not to erode a fundamental liberty--a "fundamental liberty" now referred to as the defendant's diktat, as a totemic emblem. Now his stance is that an appeal clears all that; that fundamental liberties can be eroded as long as it is done by a Crown Court judge. Madness, as we have heard, becomes sanity.

The noble and learned Lord retains his skill as the master of the U-turn. At the Second Reading of the last Bill, on 2nd December 1999, at col. 921, he said:

    "The magistrates will be required to have regard not only to ... gravity [and] complexity ... but also--this is of critical importance--to the effect ... on the defendant's livelihood and reputation".

In these few months those critical safeguards have melted away and the poor defendant is now left entirely defenceless.

Last time the noble and learned Lord regaled us with many of his previous U-turns. He told us about the appeals against lenient sentences; about the making of the breathalyser offences triable summarily; about the removal of peremptory challenges. We all enjoy the jokes of the noble and learned Lord--indeed, jokes have been in rather short supply in the new, reformed House of Lords. But, as your Lordships will remember, he also said that he is now a poacher turned gamekeeper. That was a perfect analogy, for he preserves the pheasants and the grouse for the fat cats of the commercial and libel courts--on the Front Bench, of course--while the poor criminal poachers must bag the odd, emaciated, politically-modified, legally-aided rabbits in the wastelands of the Back Benches.

Of course it is not a laughing matter. Are those ministerial arguments principled? Have they been guarding our human rights? Have they been protecting our democracy? Have they been observing the integrity of our judicial process? Or do they desperately try to hide the fact that the Bill is Treasury-run, as the noble and learned Lord, Lord Mayhew,

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pointed out? Or did the cat jump out of the bag when the Home Secretary said on 26th February last year at a criminal justice planning meeting in London,

    "I wasn't sure for a long time. But I've finally decided to remove the defendant's right to jury trial as I do not want defendants to argue human rights points after the Act comes into force".

Finally, at Second Reading, as we heard, Mr Straw claimed the active endorsement of the Lord Chief Justice. We heard the extracts from his letter 12 days before Second Reading expressing his "unease" and "concern", ending with the words:

    "I do not think one could say that a defendant's past record is always irrelevant to a decision. Magistrates and judges should not be obliged to ignore it".

The Government can no longer rely on his support for this Bill.

I conclude by asking whether it is right that the support of the judiciary should be claimed in introducing a highly contentious Bill such as this. How many Chancery judges, I wonder, considered the arguments at the judges' meeting? Not one single Crown Court judge has been approached. Who are the judges concerned? What are dissenting judges to do? Are dissenting judges now to lobby this House and the other place? Are they to write letters to The Times saying that they do not agree? Is it right, as the correspondence discloses, that the Lord Chief Justice of the time should be invited to a drafting meeting of parliamentary counsel to improve the wording and to fashion amendments? Have this Government simply abandoned the separation of powers? I suggest that those are serious matters for this House to consider at some other time.

The twists and turns of Ministers; the whole shabby history of these two Bills; the guillotine in the other place; the harm to the criminal process; the impact on the vulnerable, the underprivileged and the ethnic minorities and the Bill's inherent absurdity will surely convince all noble Lords to vote for the amendment.

6.57 p.m.

Baroness Kennedy of The Shaws: My Lords, this week the Prime Minister courageously did what politicians rarely do. With humility and decency he admitted that there were areas where mistakes had been made by the Government. It may be a source of schadenfreude for those on other Benches; for me it is a sign of real leadership and gravitas when a Minister, particularly a Prime Minister, is capable of such reflection and honesty. No government can get it right all the time. The people of this country know that and respect plain speaking.

This Bill is another area of mistake--profound mistake. Fortunately, this is a mistake which can be cured before the damage is done. Some of the motivation may have been well intentioned--we should always be finding ways to oil the wheels of justice, to avoid delays, to reduce waiting times for witnesses and to keep down costs wherever possible. But the good management of courts should not be surrendered to managerialism; nor should we allow the erosion of the keystones of the system. I, for one, cannot make a whore of my principles.

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The arguments against the reduction of jury trial have been made by me in this House many times before and I do not want to rehearse them all again. But I should have thought that removing the choice of trial from the citizen is the very antithesis of this Government's philosophy, which is supposed to be about empowering and engaging citizens.

By reducing the number of jury trials dramatically we institute an erosion not only of justice, but also of active citizenship. We talk about the social contract being concerned with rights and responsibilities, and here we have the finest example of just that. That jury tradition is not only about the right of a citizen to elect trial but also about the juror's duty of citizenship. It gives people an important role as jurors--as stakeholders--in the criminal justice system. Seeing the courts in action and participating in that process maintains public trust and confidence in the law.

It is one of the reasons why our criminal justice system is admired around the world and I hear it lauded regularly as I travel for the British Council. It is also one of the features of our system of law and governance which produces social capital. What do I mean by that? Social capital is not easily reducible to pounds, shillings and pence, but it is that unquantifiable but hugely important sub-soil from which trust is created and from which thriving societies grow. Many things contribute to social capital and it will vary in different countries and societies. Jury trial contributes enormously to the social capital of this country.

The Bill should fail for many different reasons and they have been enumerated tonight. However, I believe that it should fail particularly because of some of the myths the Government have used to maintain the arguments. One of the myths which has not been mentioned tonight but which I have heard mentioned several times recently by colleagues in this House is, "What's the problem? Don't the Scots do it this way?". Wrong; the Scots do not do it this way. In Scotland, the procurator fiscal, who is a lawyer, decides whether a trial shall be by jury in front of the sheriff or without a jury in front of the sheriff, the sheriff being a qualified and experienced judge.

If a case is tried in a summary manner without a jury, it will draw down only a maximum of three months' imprisonment and there is no committal to a higher court for a greater sentence. I warn colleagues that the criminal justice system is carefully calibrated. You cannot just uplift something from another system and transfer it without consideration of many other factors. It is often forgotten that law is cultural and we must take account of traditions, heritage and values. Therefore, one cannot cherry pick as the Government are seeking to do.

Another myth is that there is good research to show that no racial discrimination will flow from these changes. Wrong. New research from the Commission for Racial Equality shows that the chances of black and Asian defendants having their cases terminated by the prosecution at the Crown Court are respectively double and triple those of white defendants. In the

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research sample of those who elected trial in the Crown Court, the majority were either acquitted of all charges or, as the noble and learned Lord the Attorney-General said, had their charges reduced and pleaded guilty. The conclusions of the research were that the right to elect to go to the Crown Court played a key role in rectifying discriminatory police practices such as over-charging and pursuing charges based on weak evidence.

The Bill is not only unpopular, as was shown earlier in the way with which it was dealt in the other place, it is opposed by all the major civil liberties organisations and all legal practitioners. Of course, we shall no doubt hear from people who suggest that this is all trade unionism by lawyers, but the argument is about principles and knowing first hand how people are directly affected. Liberty, Justice, the Legal Action Group, NACRO and all the groups representing ethnic minorities are of one view about the Bill--and let me tell your Lordships that it is not positive.

As regards the other myth that somehow the Bill has been salvaged by dropping the reputation test, the change only compounds the folly. Others have dealt with the subject. It is impossible for magistrates to decide what is serious without having consideration of how it will impact on the lives of individuals. These are not trivial offences about bananas and jellies; they are charges of theft, burglary, the possession of drugs, the supply of drugs, indecency and gross indecency. The impact on people's lives can be enormous.

My noble and learned friend the Attorney-General argued about delay and explained his concerns in particular for those who are victims of sexual offences and abuse. I spent 20 years of my professional life arguing for a fairer treatment of the victims of crime particularly in those categories. Indeed, the best way of dealing with that is to find ways of fast-tracking such cases and preventing delay. Already we are seeing the benefits of the fast-track system, as my noble friend Lady Mallalieu told the House. I remind the noble and learned Lord only that one cannot purchase justice for victims at the cost of injustice for those who are accused.

Perhaps I may reiterate the concerns of my noble friend Lady Mallalieu that behind this a redesigning of the system is taking place but without openness and transparency. There is the business of suddenly significantly increasing the number of those who might become full-time stipendiary magistrates. If that is part of the thinking of those in government, I say only that if you do not take the public into your confidence about what you are trying to do, you inevitably get your fingers burnt. We have seen that during the past few weeks. People want to know and to understand the basis of shifts in policy.

I hope that this is not about some harmonising or homogenising with the rest of Europe, creating a "supercrime" category of cases which will be dealt with by juries, with everything else being dealt with by a class of professional magistrate. That is not part of our cultural tradition. The Bill would, if implemented, do enormous damage to the reputation of the criminal

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justice system. Defendants accused of serious offences would, against their wishes, be tried not by ordinary men and women but by what they regard as representatives of the establishment whom they perceive, rightly or wrongly, to be prejudiced against them or lacking in understanding of their personal circumstances.

They may be wrong about that, but I reiterate what others have said: perceptions matter when it comes to confidence in the system. Politicians should be careful before they undermine one of the few aspects of the legal system in which all sections of the community retain confidence. Ministers could more effectively turn their attention to other ways of improving the efficiency of the criminal justice system.

Finally, I warn the Government that to use the Parliament Act in the face of so much opposition will be perceived as a terrible display of arrogance, and I hope that we have learnt our lesson on that. I, too, shall support the noble Lord, Lord Cope, in the Division Lobby.

7.8 p.m.

Lord Alexander of Weedon: My Lords, to speak after the previous two speakers is to follow two of the finest spirits in our profession. They embody the priceless virtues of the Bar: independence and a real and passionate concern with the rights of citizens.

It may go a little against the grain of the debate if I say that I respect much of the work of the present Home Secretary. I believe that he deserves great credit for his part in the incorporation of the European Convention on Human Rights. I also believe that prior to the Recess he dealt sensitively with the difficult football hooliganism legislation. I equally respect very much the stance he took in opposition when the then Conservative government flirted with, but wisely withdrew from, the very proposal that is now being put forward.

I find it difficult to understand how a man of such ability and sensitivity can be so mistaken as to say in the other place on Second Reading of this Bill:

    "The Bill threatens no hallowed rights".--[Official Report, Commons, 7/3/00; col. 900.]

No one who has heard the passion and power of the debate in this Chamber tonight can conceivably believe that that is an appropriate view of what has been for centuries the right of an accused to elect--I prefer that word to "dictate"--trial by jury on an offence which for him or her is not trivial, however it appears to others.

In the light of the speeches which have been made, I do not need to say much about the merits of the Bill. To oppose the Bill is not in any way to call into question the work of the magistracy. It is marvellous that it tries 97 per cent of criminal cases. I am aware that the magistrates' courts committees do excellent work, almost all of which is voluntary, in administering an ever-more demanding system. Sometimes the magistracy has itself feared--that has been fuelled by press reports this summer--that the

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Government's agenda is to reduce the work of lay magistrates and to replace them by stipendiaries. That fear was touched on obliquely by the noble Baroness, Lady Mallalieu. I very much hope that the review of the criminal courts chaired by Sir Robin Auld will decisively reject any such proposal.

We all know that to praise the magistracy does not mean that trial by jury should be eroded. It is accepted that in this country it is the right form of trial for serious cases. I do not propose to add to that but merely to comment on the progress of this Bill since the previous occasion on which it was before this House. I gratefully adopt much of the critique of the noble Lord, Lord Borrie. It was a rotten Bill last time round, in part because it allowed magistrates, in making their decision, to take into account the reputation of the accused. Obviously, that was inappropriate because it would be seen to favour the white and middle class against the under-privileged who are often to be found among ethnic minorities. Your Lordships eloquently shot a hole in that argument so devastatingly that the Government accepted that they must change direction.

However, as the noble Lord, Lord Borrie pointed out, the change of direction makes this Bill even worse, because not a single circumstance peculiar to the alleged offender can be taken into account in determining the mode of trial. We all know that that is unrealistic. In practice, in some cases magistrates see a black defendant who comes from a sink estate where there is a record of crime; in other cases they will see a white lady who is charged with an offence who has an address such as "The Old Vicarage". The usual osmotic assessment of those circumstances which cannot be taken into account will be taken into account. Whether or not one takes into account reputation, this Bill is a bad Bill either way (in its own jargon). I gratefully adopt the view of the noble Lord, Lord Borrie, that the Bill is worse now than when this House rejected it by a thumping majority of 220 to 115 last time round.

Several speakers have drawn attention to the fact that this issue is currently being studied by Sir Robin Auld. He and his colleagues are looking at the criminal justice system with a wide-ranging remit and are due to report by Christmas. Perhaps I may quote their terms of reference:

    "Whether or not the Crown Court and magistrates' court should continue as a separate system. Should there be a single comprehensive and simply expressed code of procedure with, so far as appropriate, the same forms and methods of starting prosecutions and specifying the offences charged? Who should decide where a case is to be tried".

That illustrates both that this issue is interdependent with other issues which Sir Robin is considering and that it is four square within the ambit of his inquiry. Why should the Government pre-empt the advice of their own able, and no doubt expensive, commission? Surely, to turn round the argument of the Attorney-General--he and I are good friends--an open-minded government would await the response of Sir Robin Auld.

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The whole history of this Bill has been characterised by the Government's disdain for the parliamentary process. In January, a coalition in this House of Conservatives, Liberal Democrats, Cross-Benchers and a few splendid independent spirits on the Government Benches threw out the Bill. I vividly remember that the Leader of the House immediately riposted that the Government would proceed to put the Bill to the elected House. That reaction indicated to me two disappointing aspects of the Government's thoughts. First, they were not prepared to pause even to reflect whether it was just possible that the arguments put forward in this House, however improbable they might appear, were right. Secondly, the Government's approach embodied the concept that the elected House was the place to which the Government were truly accountable and that it would form an independent view.

In this Parliament it is only this House that has independence. In the House of Commons there have been exactly 1,000 Divisions. The Government, in best old-fashioned soviet style, have won 1,000 decisions. Use has also been made of the guillotine, notwithstanding the Government's enormous majority, on many more occasions than in previous parliaments. The Government revel in their tame juggernaut foot soldier majority.

I was a member of the Jenkins commission which took trouble to recommend what some of us believed to be a fairer system; namely, that in elections votes cast should be allowed to be reflected in seats in Parliament. We optimistically awaited the Government fulfilling their manifesto commitment to put the report of that commission to the electorate in a referendum. The Government have resiled from that commitment.

I believe that the lack of an effective House of Commons has real dangers. It may well encourage the kind of direct action that we have seen in the past few weeks. One member of the government party in the other place, who fortunately has a considerable store of independent fuel in his tank, recognised the faults and farce in the process in the House of Commons. I am glad to say that he was a barrister--Mr Bob Marshall-Andrews QC. He said he felt that the Government did not have a mandate for the measure because,

    "this is not a manifesto commitment of the Labour party or any other party. It has never received careful consideration and control through conference or any forum--policy or otherwise--in my party. It has never been placed before the electorate ... It is surely wrong that the Government should use their massive and quiescent majority without the issue ever being put before the electorate, particularly as a review commission is sitting and will report by the end of the year. Its finding may then be properly considered by the electorate".--[Official Report, Commons, 7/3/00; col. 918.]

I can only say to those words, "Hear, hear".

I can only say to the Government that if they seek to steal a march on the Auld commission they will be displaying the very arrogance to which the noble Baroness, Lady Helena of The Shaws; I mean Lady Kennedy of The Shaws--I got it half right, and the half I know best--referred. Equally, if the Government really believe in this, why do they not wait and put in

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their election manifesto, "We intend to seek to restrict trial by jury", and let them see how it appeals to the people? But what they should not do, as the noble Baroness said, is dare, if they wish to be seen as respecters of Parliament, to seek to use the Parliament Act on this dreadful Bill.

7.21 p.m.

Viscount Tenby: My Lords, I rise to offer my support to the Bill. Having made that provocative statement, I had better say immediately that I must do two things. The first obviously is to don my flak jacket. The second is to declare an interest as a magistrate of many years standing, now on the supplementary list, and as a member of the Magistrates' Association, although I hasten to say that any views I express today are my own.

These two modest pieces of legislation have attracted more misrepresentation and more exaggeration than anything since King Alfred put back the cause of haute cuisine in this country by 600 years. Most of the arguments have already been advanced in discussion on the ill-fated mark 1 Bill. A certain amount of repetition is therefore inevitable; a hazard which has hitherto in my experience in this place not deterred speakers unduly. The proposal then is to remove the right of certain defendants to opt for trial at the Crown Court rather than before magistrates where some lesser offences are concerned; in other words, each way offences.

In one respect I believe that the new Bill is an improvement on the old one, in that it does not require magistrates to have regard to a defendant's circumstances and the effect a conviction would have on his or her reputation in determining where the trial should be held. Had the earlier Bill survived, I would have sought to amend that proviso during its passage.

It may fall on deaf ears, but I have no doubt whatever that the thrust behind the Bill enjoys the substantial support of all who have to work the system in the lower courts--the magistrates, the justices' clerks and the police. If passed, the Bill will save money. The amount that has been bandied around is anything between £100 and £128 million annually. But that is something of a red herring because, welcome though that is, the issue is not about money but about two rather more important things: the ability of streetwise repeat petty offenders to manipulate the present system to their advantage and, arising from that, the consequential increase in the time taken before a case is brought to court. Perhaps I may put some flesh on that point because we have not previously had the figures.

According to the latest information, the average time between committal and trial in the Crown Courts is 15.2 weeks. That of course excludes the time between first appearance and committal, which might charitably be assessed at eight weeks, provided all the relevant agencies have got their acts together. Some may think, "Some hope". So, optimistically, let us call it a total of 23 to 24 weeks. In my area the average time before the summary trial itself is eight to 12 weeks.

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Every effort is made to get it down towards the lower of the two figures. We all know--the records prove it--that many defendants change their plea to guilty shortly before their Crown Court appearance. The consequential waste of human resources in the case of both police and witnesses is considerable.

In the case of the former, for example, it may be that they would otherwise be on the beat at the time. What about the call for more bobbies on the beat? Here we are taking them off it. It also increases the ordeal of the victims and may adversely affect the memories of some witnesses, particularly the elderly. We have repeatedly been told that this is a direct attack on a defendant's right to be tried by his peers. I believe we can safely disregard the near hysterical cries of Magna Carta abuse since the right of election dates only from the Criminal Justice Act 1855.

However, the critical point is surely this. Not all those accused of lesser offences enjoy the right at the present time. The best tunes are always worth repeating, especially if they are being sung by a Welshman such as the noble and learned Lord the Attorney-General. For common assault you can forget election, just as you can if you assault a police officer, commit criminal damage up to a level of £5,000 or expose yourself indecently. Similarly, if you are accused of any one of three of the most serious motoring offences--driving while disqualified, drink driving or taking without consent--you can whistle for a Crown Court trial unless, of course, the magistrates decide to send you there. Some might feel that to be accused of any of the foregoing offences would be just as damaging to one's reputation as, say, stealing a bottle of milk from a supermarket.

There are unexpected spin-offs from these exclusions. The offence of causing actual bodily harm carries an each way ticket, whereas, as I have just said, common assault does not. In order to save both time and money the Crown Prosecution Service may be tempted to prosecute under common assault. It makes sense.

If opponents of the Bill were arguing along the lines of, "Let's put a stop to this lottery and make the right of election available for all offences, not just the haphazard selection as at present", I still might not agree to the proposition, but I could at least see the logic in it. The noble Lord, Lord Mishcon, made that point. As so often, he put his finger on the point. I am sorry that the noble Lord is not in his place at the moment. We all know, however, that this will not happen because it will cost too much money, increase the legal log jam even more, making the old saw about justice delayed being justice denied even more relevant, and because Crown Courts simply would be unable to deal with the extra volume of business engendered by the change. I must also point out that, so far as I am aware, not a single amendment was put down during the passage of the mark 1 Bill to attempt to remove that anomaly. So it is all about Luddism and not constructive alternatives. It is better by far to keep the

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quaint old British Gilbert and Sullivan capriciousness which we now have and will fight to the bitter end to defend.

What is the size of the problem? Latest available figures indicate that we are talking about 18,000 defendants who annually elect Crown Court trial against the 47,000 who will have been sent there by the magistrates. In other words, Benches already send nearly two-and-a-half times as many defendants to Crown Court as those who go there by their own choice.

Let me turn to one other aspect of the argument. There appears to be a feeling, always strenuously denied of course but nevertheless present--it was certainly present in our discussions on the mark 1 Bill--that magistrates are a throwback to an earlier, unreconstructed age and are not always as competent as they should be. In fact, the people who are out of touch, those who live in the world of Dornford Yates, or perhaps more appropriately in this context, Somerville & Ross, are those who harbour and promote such thoughts. On competence, let the facts speak for themselves. Magistrates conduct some 70,000 trials annually and out of this formidable total only one case has had to be referred to the Court of Appeal by the Criminal Cases Review Commission. That is only one out of 70,000 cases.

It is also inferred that benches may not be quite up to snuff in racial awareness, or at least may not appear to be so among their clientele, which I agree is an important point. I have to say, however, that the magistracy is just as aware of its responsibilities in a multi-ethnic society as any other public body--probably rather more than most. In passing, it contains proportionately more representatives of ethnic minorities than, for example, the judges' bench. It also contains many trade unionists, blue-collar workers and now, mercifully, younger representatives of our society.

Of course there are batty magistrates, just as there are batty barristers and, dare one think the unthinkable, batty judges as well. That is the nature of the human race, but I strongly resent the suggestion implicit in the comments of some who oppose the Bill that defendants get a better deal in the Crown Court. That is not borne out by the facts, just as it is not true that ethnic minorities are worse served in magistrates' courts, where the conviction rate for white defendants--as was pointed out by the noble and learned Lord the Attorney-General--is higher than for those who are black.

Let me dispel one further myth which has been touched on during today's debate.

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