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The Earl of Onslow: My Lords, I apologise. I do not like getting a name wrong but I am quite happy to attack speeches. The noble Lord said that anyone whom plod arrested should automatically be slammed up because all the lawyers are rich, they all do it for fun and none of them has any views of their duties to the court. That is not what I recognise about British justice.
Lord Mackenzie of Framwellgate: My Lords, perhaps I may place on record that I, and I believe the police in general, object to being called "plod". It is the Police service and we provide a service to the nation. The term is unacceptable. The noble Earl used it in the previous debate. It does him little credit.
The Earl of Onslow: My Lords, it may do me no credit but I do not know anyone who does not refer to the police service as "plod". I promise the noble Lord, Lord Mackenzie, that I shall never again use the word "plod" in your Lordships' House. I may use it in a pub or bar outside. I may use it as a slightly affectionate general description--our police service is good--but the word which I promise never to use again is frequently used outside this House. I sought to suggest that the noble Lord assumed that everyone whom he arrested was guilty. He assumed that juries could be fallible and "got at" and that (the word that I am not allowed to use) was infallible. That is not the case.
The Government have hanging over their heads a great accusation of illiberality and abuse of the liberties of the subject. I shall go through some of the charges: vouchers for immigrants; the football hooligans Bill; the Countryside and Rights of Way Bill, which, as the noble Lord, Lord Brittan, showed yesterday, is open to challenge under the European Convention on Human Rights; two strikes and you're out; those who are late for a probation appointment lose their social security; and now this Bill.
The last time that we debated the subject, I suggested that the noble and learned Lord, Lord Williams of Mostyn, was an insincere version of Mr Michael Howard. I have a terrible feeling that he may be becoming a sincere copy of Michael Howard. That is almost worse. I also think that he will never again use the word "totem", any more than I shall ever describe the police force--the boys in blue--with the word that so much offends the noble Lord, Lord Mackenzie. I have promised that I shall never use it again.
I was totally convinced of the wrongness of the Bill when the Attorney-General mentioned the Bishops. In front of me on the Benches were "Tweedle Southwark" and "Dum Chichester"--or "Dum Chichester" and "Tweedle Southwark", not to be rude. I imagined each in their respective diocese on a hot Saturday afternoon in a bookshop, musing on the nature and substance of Christ. That is what bishops should do. Each picks up somebody's learned divine commentaries on the difference between the Nestorian, Arian and Monophysite heresies and all the issues that were discussed in butchers, bakers and candlestick-makers' shops in Constantinople in 500 AD. In a fit of divine inquiry, they both wander gently past the till, to be drawn sharply to their senses by a ping. They are then arrested by a passing member of that which I may not describe and accused of shoplifting, which is an each way offence. One of them is in Chichester, where the magistrate says that he may not be tried by a jury. The other is in Southwark, where the magistrate says that he may be tried by a jury. That potential difference between the treatment of two people accused of the same crime goes to the core of the wrongness of the Bill. That point is very important.
I accept that there are other crimes that could have the same effect on a person's reputation. If "Tweedle Chichester" and "Dum Southwark" both go flashing on Brighton pier, neither of them can be accused of gross indecency in front of a jury. They would have to go in front of a magistrate, but the key point is that they would both get slotted by the same court system. That is what is wrong with the Bill.
Lord Phillips of Sudbury: My Lords, at this time of night there are few scraps of significance left on the bones of a debate that has illustrated the utility of this place. I start by looking at the issues from the point of view of the public. It is vital that we preserve public confidence in our justice system, particularly among that part of the public from which most criminals and their victims have traditionally come. It is easy for the middle classes to retain confidence in justice, but it is much more difficult for those people.
Public confidence is a sine qua non for an effective system of justice, upon which everything else depends. Without co-operation between the so-called ordinary citizen and the police and the courts, the system will fall into disrepute and ineffectiveness. Public confidence is not a function of pure logic or statistics, let alone a detailed understanding of the measures in the Bill. That is sometimes forgotten in this place. It is much more a gut matter. It is more about heart than head. The public's feelings towards the criminal justice system are formed by experience and anecdote.
Such symbols are important, providing vital linkage between the citizen and the justice system. In this age particularly, when all around us there are signs of public disengagement from and disenchantment with the institutions of our society, the maintenance of those elements of the relationship between the ordinary citizen and such institutions is crucial.
I should like to say a few words about the several contributions that have been made about justices of the peace and their role. I spent the first five years of my legal career in a general solicitor's office traipsing round the magistrates' courts and working for a part-time clerk to the justices. Indeed, I sat as a substitute. No one in this place has a higher esteem for the justice system and for lay justices than I do. We persistently hear rumours about proposals to weed them out and eliminate them in favour of stipendiaries. If there is any truth in that, it would be a disaster of the first proportion. However, frankly we are not talking about whether or not the justices are esteemed. We are talking about how they are perceived. In the Committee stage of debate in the first hearing (if I may call it that) of this Bill on 20th January, the noble and learned Lord, Lord Bingham, said that we would confidently expect magistrates to decide questions with the same fairness, open-mindedness, human insight and common sense applied to every other issue they resolve. True!
However, the point is that, when confronted with a choice between trial before magistrates or trial before a jury, a great many of our citizens will feel that a jury is more open-minded as regards the issues in their case and is possibly possessed of more common sense--or certainly breadth of life experience--than a typical Bench can be.
I believe that the noble Lord, Lord Alexander of Weedon, made perfectly fair reference to some of the attributes which apply to many lay Benches. It is not to their discredit to point that out. It is merely to accept that we have an ancient, vital and central choice which is one of the prized attributes of citizenship of this land: that is, to choose between magistrates and a jury in cases in this middle rank.
Frankly, it is no good playing games with this issue and talking about the "banana" case. It is no good playing games on the matter of the boundaries between either way cases and summary cases or cases which have to go to Crown Court. All divisions in this sphere will have their edges--extreme and silly examples and cases. The heart and core of this issue is about the right, which exists (we are not starting with a clean sheet) and which is so much valued, of citizens to choose trial, as they do, by jury.
I wish to make a point about resources and the effectiveness of the current system. I believe that the scale of the problem is apt to be exaggerated. No one can disregard any ineffectiveness, delay or unfairness. However, I believe that we need to put the matter into perspective. There are 465,000 either way cases a year--I use Home Office statistics. Only 4 per cent of those cases involve elections by defendants to go to Crown Court. I repeat: only 4 per cent. The other 96 per cent are dealt with in the magistrates' courts because defendants have made that choice, or 47,000 of them because the JPs themselves have elected to put the case to the Crown Court. Of that 4 per cent of cases--18,500--only 7,400 elect to go all the way to trial. Sixty per cent plead guilty between election and trial.
Much play has been made of that statistic of 60 per cent. It has been said that it is a waste and that it shows just how insincere the defendants were to plead in the first instance. I believe that the noble and learned Lord the Attorney-General was frank enough to admit at Second Reading that no research had been done into this matter. In fact, he suggested that if the matter was of continuing concern after the Bill had become law, no doubt research could be done. Research has now been done; it was referred to by the noble Baroness, Lady Kennedy, and the noble Lord, Lord Brennan. It has been carried out by Professor Bridges of the Warwick University School of Law and two other researchers. Any noble Lord who doubts the significance of the 60 per cent figure should study the summary of the report in the Legal Action Bulletin. It proves very clearly that the majority of those 60 per cent of defendants plead guilty when and only when the charges with which they were presented at the magistrates' court are reduced. The reduction in charges on such a heavy scale is because only when the matter goes to Crown Court will it be given the senior examination by experienced members of the Crown Prosecution Service who say, "No, this is ridiculous", and they drop the charge.
Therefore, it is not a question of people simply trying to avoid being found guilty of that of which they are guilty but of people feeling that they have been overcharged and not being willing to subject themselves to the overcharged cases before the magistrates.
The other point which has not been taken into account is that if the defendants in those 60 per cent of cases are forced back into the magistrates' court, they will not plead guilty because they will then not be presented with a choice. They will not be presented with the evidence on which the case is to proceed. The
It is very easy in a debate such as this to look at the issues through the wrong end of the telescope, so to speak. It is very easy to assume that one is dealing with people whom one knows to be guilty. There is much talk about abuse of the system as if magistrates or juries know before they hear a case who is a villain and who is undertaking the abuse. It strikes me that we must face up to the fact that there is no clinically scientific system of sorting out villains from innocent people. The trial process is a rough and ready system. It is sheer nonsense and delusion to pretend that there is a perfect answer to these issues and that there is a system which will not be abused.
What is more, such an attitude is dangerous because we have always posited our understanding of the rights of the citizen in this country before the criminal law on the first, second and third basis that the priority is to avoid the conviction of innocent people. The acquittal of many guilty people stands well in the wake of the essential need not to convict the innocent. That is for the good reason that nothing will so quickly and surely undermine the whole process than the corruption which follows from regular conviction of innocent people. Noble Lords must realise that in our debates and avoid falling into the trap which, I am bound to say, I feel that the chairman of the Association of Chief Police Officers, Chief Constable David Phillips, fell into when he said--and this is quoted by the Home Office in support of this measure:
Here tonight we are dealing with a case put forward by the Government which I contend--and I believe that many others will agree with me--has simply not been proven. Any tinkering with this central aspect of our criminal legal system around which so much significance attaches by so-called "ordinary" people would in my view be an absolute folly.
Lord Lipsey: My Lords, if the Government were to lose the vote this evening, I believe that I should be inclined to advise them to appeal. We have heard in this debate no fewer than 17 of the finest advocates in the land on one side of the argument and a mere handful--although in many ways we do not regret that--on the other side.
Indeed, the speeches which we have heard from the opponents of the Bill have been great speeches. It has been wonderful for those who have been present to hear magnificent and memorable speeches. They would have been great speeches even if the Bill before
If I was to demand equal time for the defence, I should speak for three hours. However, I have a slight feeling that the House would not welcome that at present. Therefore, I shall try to cast aside my notes and say one thing in about three minutes which is directed at the liberals (with a small "l") on both sides of the House who oppose the Bill. I should like them to weigh the following with the arguments that they have put forward.
The one matter that is certain about the Bill is that, if it is lost, more people will go to gaol for longer. I quote from the Answer given in another place on 25th May, by Charles Clarke, a Home Office Minister, using the Home Office's model of costs and flows developed in collaboration with the Lord Chancellor's Department and the Crown Prosecution Service: custodial sentence rate 22.5 per cent from magistrates as opposed to 46.5 per cent from the Crown Court--half; average sentence 3.6 months from magistrates as opposed to 10.9 months in the Crown Court--about 40 per cent; remand time avoided--this cannot be questioned--nine weeks on average if the case is tried by magistrates.
Reading those figures, it is not surprising to learn that almost half the people who elect jury trial wish afterwards that they had not done so because the outcome is that they get locked up for longer.
I know that all these figures have been subject to vast amounts of research--and I shall not try to summarise this in three minutes. I know that they are all fraught with danger because unless without a double, blind, controlled experiment with huge matched samples, we cannot be sure of anything. One thing I would say is that we can be fairly sure that Home Office officials and the Home Secretary at any rate--who will have spent more time on this than anyone else after all--will be pretty sure that the effect is that way. This is a fantastically unattractive Bill for any Home Secretary to produce. That is no doubt why Mr Howard backed away from pushing it through, having flirted with it. In introducing this Bill, the Home Secretary had to eat his words. I have yet to meet a politician who likes eating his words.
In introducing this Bill, the Home Secretary lays himself open to just the kind of attack from Left, from Right, from centre and certainly from the media which are naturally unsympathetic to this kind of legislation. There are not even any populist brownie points in this Bill. It does not lock up criminals for longer, as the Home Secretary is sometimes accused by liberals of wanting to do. I shall not comment on that. No; the Bill lets them out sooner.
Baroness Prashar: My Lords, I was a member of the Royal Commission on Criminal Justice which recommended that in cases involving either way offences the defendant should no longer have the right to insist to a trial by jury.
Tonight I want to draw your Lordships' attention to two other recommendations of the Runciman Report, because the Royal Commission's recommendations about trial by jury should be seen in the context of these two other recommendations which were designed to increase public confidence in the criminal justice system, particularly that of ethnic minorities. These were, first, that there should be further research to establish the extent to which members of the ethnic minority communities suffer discrimination within the criminal justice system; and, secondly, that a system of ethnic monitoring should be introduced in order to establish how minorities are treated and thus to identify the measures which are needed to ensure that as far as possible the rules, procedures and practices of the criminal justice system are applied in the same way to all.
These two recommendations were extremely important as they were intended to help identify areas of discrimination and the consequent action needed. But in the past seven years not much progress has been made in implementing these two recommendations. A Home Office publication under Section 95 of the Criminal Justice Act 1991--which was published at the end of last year--states:
Recent information shows that ethnic minority defendants are more likely to be acquitted than white defendants in both the magistrates' and Crown courts. Research also shows that ethnic minority defendants are more likely than their counterparts to have charges against them discontinued or withdrawn by the CPS or to have the charges reduced. Research also shows that
In my view, this assertion takes a very simplistic view of the way discrimination operates within the criminal justice system and the steps which need to be taken to deal with it. I would suggest that these results have been achieved for two reasons. First, there is indeed an increasing awareness of discrimination by those in the criminal justice system and of how it operates. The second, to which reference has already been made, is due to black and Asian defendants asserting their rights. As we are all aware, there is a strong body of evidence of over-charging by the policy of ethnic minority defendants, and this in turn shapes the whole relationship between minority defendants and other parts of the criminal justice system.
In response to this over-charging, black and Asian defendants have taken steps to rectify the consequences by asserting their rights at each stage of the process, and they see the right to elect for trial by jury as one such measure. So the removal of the right is likely to be detrimental to minorities and it will be seen as depriving them of an essential tool in defending themselves. I would therefore urge the Government to consider steps which should be taken to reduce the serious problems of over-charging and their adverse impact on minorities before further curtailing rights which are seen by minorities as safeguards against discrimination.
I am also concerned about the absence of a reputation clause in this Bill. The Royal Commission placed great emphasis on the view that access to jury trial was important for cases involving potential loss of reputation. The consequences of this particular removal have been well argued by a fellow commissioner, Professor Michael Zander, in an article in the New Law Journal, to which reference has already been made.
Lord Dholakia: My Lords, we now come to the closing speeches. I can see relief on the face of the Attorney-General. There have not been many occasions on which I would disagree with him, but this is one on which I would part company.
I listened to him very carefully. Two of the substantive points he made do not stand up to the scrutiny of proper research. The argument that 60 per cent of those who elect trial by jury plead guilty at the Crown Court is extremely weak in the sense that, as my noble friend Lord Phillips said, we have never clearly examined precisely what happens when people appear at the Crown Court.
The noble Baroness, Lady Howells, was right to say that that is the stage at which the CPS actually gives proper consideration to a case. What happens about charges being dropped? How many charges are preferred in seriousness and how many are not proceeded with? When all those matters are examined, a completely different picture emerges from the simple allegation that 60 per cent of cases have been dropped and, therefore, we are wasting the courts' time.
There is another point which the noble and learned Lord the Attorney-General mentioned and I am asking where the evidence is to support it. He talked about saving court time. I should have been much happier had he been able to give some indication as to how he arrived at that conclusion. What is the evidence that led him to reach that conclusion?
Again, calculations were made in relation to the prison population in order to estimate the amount of money that would be saved. I genuinely believe that one must not simply pick up figures which have not been substantiated simply to make a basis for a particular case. That is the wrong way to formulate our criminal justice policies.
I remind the noble Viscount, Lord Tenby, that I have been a magistrate for more than 14 years. I never question the competence of magistrates. They perform a very difficult and yet important task. But I have spoken to many magistrates and something which they tell me, which is quite contrary to the views of others, is that there is a safety valve in relation to either way offences. Because the minority does not have confidence in the way that they are being dealt with in the magistrates' courts, they elect trial by jury. Those magistrates would prefer for that safety valve to be there because, over a period of time, it helps to establish the confidence of the minority in the magistracy. We tend to forget that point.
I was delighted by the excellent contribution of the noble Lord, Lord Brennan, which summed up the feeling on this. It is not a question of appealing just because you believe that too few people are being fielded on your side. It is clear that the opinion being expressed here is the opinion felt generally throughout the country, probably in the same proportion.
The one thing that repeatedly comes out from people of ethnic minority communities is that magistrates tend to believe police officers more than they believe the defendant appearing before them. Whether or not that is true, that is the perception of the ethnic minority communities. We cannot get away from that perception because in speech after speech in your Lordships' House examples have been cited about the treatment of black people within the criminal justice system. I give due credit to the noble Baroness, Lady Kennedy, for the way that she has identified those cases.
We have talked about issues affecting civil liberties and, in particular, the disproportionately adverse effect which this Bill will have on some sections of our community. I am concerned that even now, as I mentioned before on two previous occasions, the Government have not refuted the objections of principle to their proposal to remove the defendant's right to elect trial by jury in certain cases. As the noble Baroness, Lady Prashar, said, they have relied on some of the evidence and research which, when analysed, cannot stand up to scrutiny.
So what is the basis of my case? I consulted the very organisation which the Government set up to promote equality and good relations--the Commission for Racial Equality. I am told that it still has three objections to this Bill. First, the proposals were not "race-proofed" before they were introduced and the Government are now trying to justify them post hoc. Secondly, contrary to the Government's pledge to increase ethnic minority confidence in the criminal justice system, these proposals would further erode it. Thirdly, there is every indication that each year hundreds of defendants who would have been acquitted at the Crown Court will be found guilty if this legislation is passed. A disproportionate number of those people will be from ethnic minorities. Those are not my words, but the words of the Commission for Racial Equality, which is a body which I should have hoped that the Home Office would have consulted in the first instance, before even talking about the research which it thinks justifies its case
I can well understand the Government's problem. I have no difficulty with that. There is a continuing absence of ethnic minority data from the courts. In addition, there is a further problem. New analysis of the Home Office statistics confirm that since the minority population is not evenly distributed across the country, differences between areas as regards committals to the Crown Court may exacerbate the problem and have an adverse effect.
Therefore, I wish to concentrate on one specific but crucial area of the argument: whether ending the right to elect jury trial will disadvantage black and Asian defendants and further dent the confidence of racial minority groups in the criminal justice process.
There are two important issues in that regard. The first is whether that change will be to the disadvantage of racial minorities. The second is whether black and Asian people will perceive the change to be biased against them and thereby further dent their confidence in the fairness of the criminal justice process.
The evidence on whether black defendants are more likely to be acquitted in the magistrates' courts or Crown Courts is, of course, mixed and confusing. Nobody disputes that. Even if one examines the evidence which the Government produce under Section 95 of the Criminal Justice Act, one cannot draw much consolation from the type of information that is available from that.
There appears to be no dispute that black and Asian defendants who appear in the Crown Court are more likely to be acquitted than white defendants in that court. Data from the Crown Courts in 11 pilot areas included in the Home Office's most recent Section 95 publication showed that 19 per cent of black defendants and 24 per cent of Asian defendants were acquitted compared to 16 per cent of white defendants. So, to an extent that meets the Home Office argument.
There are similar findings in the recent study (Race and Crown Prosecution Decisions) by Dr Mhlanga. Another study published in March by the Home Office showed that black defendants in the Crown Court are more likely to be acquitted than white defendants in that court by about six percentage points. That was also mentioned by the Attorney-General. However, the Government argue that black defendants are also more likely to be acquitted by magistrates than are white defendants. I have a problem: I have information that they have not taken into account the points I mentioned earlier but which have been admitted by the Home Secretary. In a note to the then chairman of the Society of Black Lawyers, Peter Herbert, the Home Secretary stated, when referring to the acquittals in the magistrates' court, that they include cases which were withdrawn or dismissed. The Home Office crime statistics suggest that the number of cases withdrawn or dismissed could be as large as the number of those acquitted and we cannot know what proportion of each ethnic group in that sample fell into either of those categories. If we take that as the basis for an argument, it does not stand up.
However, the Government argue that black defendants are also likely more to be acquitted by magistrates; and they produce figures showing a higher conviction rate for white than for black defendants. I believe that Jack Straw's letter to Peter Herbert destroys the argument put forward by the Home Office.
The Government also claim that figures for sentencing in magistrates' courts show no apparent bias between different racial groups. But when we examine the sentencing figures closely, they do not inspire us with confidence in their reliability. The last Section 95 report, which I mentioned earlier, published by the Home Office stated that of the 11 police force areas from which it had collected sentencing statistics,
We need much more detailed studies on sentencing. I have figures before me but it is too late in the evening to go into the detail. The case has been made by a number of other speakers. We have evidence here from the former members of the Royal Commission on Criminal Justice about how they view the whole process. But the most important aspect to bear in mind is that at a time when the criminal justice system needs to take every step it can to repair the confidence of racial minorities, abolishing the right to elect jury trial is a step in precisely the opposite direction.
Perhaps I may share with the House a secret which is likely to be published in the course of the next month or so. A publication called Public Eye has looked into the views of black people. As I have said, that survey will be published in November. To date, no one has elicited the views of the black community on the issue of removing the right to trial by jury in certain cases. In order to gather information about the views of this community, Public Eye, which is local government's only publication written from a black and Asian perspective, conducted a survey of 500 people. I shall give copies to noble Lords. To the question:
Perhaps I may conclude by putting forward one further argument. I am sure that I shall have the support of the whole House on this matter. It concerns our international reputation and standing. My noble friend Lady Williams was good enough to remind me of the situation in Russia, Nigeria and a number of other countries on the world stage where courts and those who administer justice are corrupt. Justice is at a premium. The only hope innocent people have is the jury system. However imperfect it may be, in many cases it is a matter of life and death. Those countries will be entitled to say that if Britain, the mother of democracy, can abolish trial by jury, what is to stop them doing precisely that?
Lord Williams of Mostyn: My Lords, it is conventional for someone in my position to say how deeply I enjoyed the debate. My Lords, I deeply enjoyed the debate! I am sorry the Bishops have gone home; I was about to demonstrate that mortification is indeed good for the soul.
Because I was a practising lawyer for some years I was disqualified from serving on a jury at the Old Bailey. But after this evening I know what it feels like. I have sat on 22 juries this evening and been the object of powerful speeches--the whole spectrum, your Lordships may think. I listened to every one of them, from the voice of deep unreason to carefully considered, moderate, calm submissions to which it was a pleasure to listen even if I could not necessarily wholeheartedly agree with every conclusion offered.
A number of questions have been asked in relation to Lord Justice Auld. When his inquiry was set up it was never suggested that further reforms would not be proposed in the interim. The noble Lord, Lord Thomas of Gresford, made reference to the fact that serious criminal charges should be tried by juries. I agree. He spoke of cases, for instance, of state secrecy and Official Secrets Acts. They would always continue to be tried by juries. So essentially there is no real difference between us. What we are going to do--to use the phrase I used in the article in The Times--is to improve the mechanics by which the decision is made about which forum is appropriate. I still maintain my position. It would have been wrong for the magistrates alone to decide that they would be the forum which would try an individual defendant. But it is absolutely right to have a right of appeal to the Crown Court--to an independent judiciary.
The noble and learned Lord, Lord Ackner, as his second point, asked why the James Report of 1975 had been suppressed. As far as I am aware it has not been suppressed. Everyone who wanted to read it, read it. There were a number of controversial proposals in it which were not accepted.
My noble friend Lady Mallalieu spoke of problems of disclosure; she spoke of the system in Scotland and she said perhaps that one wanted a new jury on every occasion. I understand her point perfectly well. I simply return to my point. We are not proposing the abandonment of trial by jury. What is being proposed--I repeat again with respect to your Lordships--is the automatic right, without question and without denial, of any defendant in an either way case to insist on trial by jury. That is what we are dealing with; nothing more and nothing less.
The noble and learned Lord, Lord Mayhew, said that a conviction of dishonesty can bring about disaster. I accept that. He said that magistrates may be regarded as permanent, case-hardened voices of authority. We must disagree on that and I put myself firmly in the camp of the noble Viscount, Lord Tenby. I do not believe magistrates are case-hardened voices of authority. But we must agree to disagree.
I point out also that, when a number of noble Lords said that it is appropriate for Parliament to classify offences rather than for the judiciary to decide, they are fundamentally mistaken. The classification of offences by Parliament is blunt indeed. The classification of theft may be the banana in Tesco; it
The noble and learned Lord, Lord Simon of Glaisdale, spoke of an existing right being taken away. It is an existing right which is absolute and total at the moment. We are saying that in all circumstances one needs to see how the balance is properly to be drawn. He quoted the moving phrase of Lord Devlin, which we all know: each jury is a little Parliament. Of course; but not a little Parliament for every allegation of crime. For serious crime, where the interests of the individual and the state collide, one needs a proportionate response, which is the jury. For other offences, I do not believe that a little Parliament is either wanted or capable of being provided.
The noble Lord, Lord Hutchinson, was good enough to point out what he said were my previous inconsistencies. He was able to do so because I pointed to them during our previous discussion of the matter. I pointed out that when unduly lenient sentences were introduced--I believe it was when the noble and learned Lord, Lord Mayhew, was Attorney-General--we all complained. Looking at the regime of the prosecution right of appeal, subject to the control of the Attorney-General, I believed it to have been a public service. I was wrong. If that is a U-turn, I would rather do a U-turn and be right than not do a U-turn and carry on being wrong.
I would think that most people, the overwhelming majority, as your Lordships say, everyone to whom I have spoken--in other words, informed and reasonable public opinion which happens to agree with me--would say that breathalyser offences are rightly tried by the magistrates. It was right to do away with peremptory challenges. Although it was a right of enormous historic importance, it was no longer appropriate in a modern society; the criminal justice system has changed.
The issue of majority verdicts was vigorously contested, but I have met no one, whether in the Bar or out of it, who does not believe that the introduction of majority verdicts was a significant improvement to the system of jury trials. As far as I know--of course I could be wrong--it was not a feature of any subparagraph of the Magna Carta.
Therefore, occasionally it is right to listen to the arguments, to revisit topics and to think that perhaps we might do things better. Not all aspects of the criminal justice system are perfect and they may be capable of even modest improvement.
The noble Baroness, Lady Kennedy of The Shaws, described me as her "noble and learned"--and there was a significant pause before she said "friend". I suppose that she was looking for a bon mot. But she is my noble friend, and she said the prosecutor alone decides the venue. We considered that route and thought that it was not right for our circumstances. We preferred the independent judiciary to have this degree of responsibility and to discharge it.
My noble friend said that the situation is different in Scotland because professional judges try the cases; in other words, the sheriffs. That is true. In some circumstances, they can impose a sentence of more than three months. In any event, most sentences of imprisonment imposed in the magistrates' courts in this country would not be more than three months. However, if one meets the "Kennedy of The Shaws point"--perhaps I may put it in that way without seeming discourtesy--as soon as one suggests here that perhaps we might use some stipendiaries, the conspiracy between the noble and learned Lord the Lord Chancellor, the Home Secretary and myself is immediately disclosed: "You want professional judges to try these cases?". Sometimes one hopes in vain for a thread of consistency!
We heard some powerful speeches. The noble Lord, Lord Alexander, always makes powerful speeches. He is never personally offensive and he makes his points. I have to disagree with him and I believe that one or other of us is wrong. Some people believe that the world is flat, some people believe that it is round and rational argument is not often capable of bringing a conjunction of view between the two camps.
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