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Earl Russell: My Lords, the noble Lord, Lord St John of Fawsley, is correct on all the points of form. What he has said deserves careful attention. However, subject to that point, on the substance of the matter, when properly digested, I have considerable sympathy for the position taken by the noble Lord, Lord Forsyth. If it were to come back in a digested form, I should wish to express that sympathy. My family had a share in creating the problem and would like a share in clearing it up.

3.46 p.m.

On Question, Whether the said Motion shall be agreed to?

2 Dec 1999 : Column 919

Their Lordships divided: Contents, 14; Not-Contents, 65.

Division No. 1


Alexander of Weedon, L.
Brooke of Alverthorpe, L.
Caithness, E.
Cocks of Hartcliffe, L.
Filkin, L.
Fitt, L.
Forsyth of Drumlean, L. [Teller]
Fraser of Carmyllie, L. [Teller]
Hughes of Woodside, L.
Kennedy of The Shaws, B.
Masham of Ilton, B.
Milner of Leeds, L.
Mowbray and Stourton, L.
Sewel, L.


Aberdare, L.
Allen of Abbeydale, L.
Ampthill, L.
Avebury, L.
Beaumont of Whitley, L.
Bridges, L.
Brougham and Vaux, L.
Bruce of Donington, L.
Butterworth, L.
Campbell of Alloway, L.
Chadlington, L.
Chalfont, L.
Clark of Kempston, L.
Clarke of Hampstead, L.
Cockfield, L.
David, B.
Eden of Winton, L.
Elliott of Morpeth, L.
Ferrers, E.
Flowers, L.
Glenarthur, L.
Hardy of Wath, L.
Howell of Guildford, L.
Kimball, L.
Laird, L.
Laming, L.
Lamont of Lerwick, L.
Lane, L.
Lea of Crondall, L.
Linklater of Butterstone, B.
Liverpool, E.
MacKenzie of Culkein, L.
Mancroft, L.
Mayhew of Twysden, L.
Molyneaux of Killead, L.
Monson, L.
Norton of Louth, L.
Onslow, E. [Teller]
Palmer, L.
Perry of Walton, L.
Plummer of St. Marylebone, L.
Quinton, L.
Rawlinson of Ewell, L.
Rogan, L.
Russell, E.
St. John of Fawsley, L. [Teller]
Saltoun of Abernethy, Ly.
Sandberg, L.
Selsdon, L.
Simon of Glaisdale, L.
Skelmersdale, L.
Strange, B.
Swinfen, L.
Tenby, V.
Thomas of Gwydir, L.
Thomas of Swynnerton, L.
Thomas of Walliswood, B.
Trumpington, B.
Varley, L.
Vivian, L.
Wakeham, L.
Walton of Detchant, L.
Warnock, B.
Weatherill, L.
Young, B.

Resolved in the negative, and Motion disagreed to accordingly.

2 Dec 1999 : Column 919

Criminal Justice (Mode of Trial) Bill [H.L.]

3.58 p.m.

The Attorney-General (Lord Williams of Mostyn): My Lords, I beg to move that this Bill be now read a second time.

It is in the interests of victims and witnesses--and indeed defendants--that our criminal justice system operates efficiently. It is also in the interests of the wider public. A civilised state should be capable of resolving criminal proceedings swiftly and justly.

In 1993 the Royal Commission on Criminal Justice recommended that defendants should not be able to choose, as an automatic right, to be tried by a jury in cases where magistrates have indicated that they

2 Dec 1999 : Column 920

would be content to hear and try the case. In 1997 the Narey Review of Delay in the Criminal Justice System came to the same conclusion. We believe that the change is necessary and right. This Bill gives effect to that.

The venue for a criminal trial is determined by the seriousness of the offence. The most serious offences, such as murder, rape and robbery, can be tried only in the Crown Court. Many offences can be tried only by magistrates. They include offences such as common assault and indecent exposure which carry sentences of imprisonment. I believe that the latter offence is of significant detriment to reputation and often to livelihood. Criminal damage, where the damage amounts to less than £5,000, is triable only in the magistrates' court. Again, I believe it is self-evident that for many people conviction would significantly affect their reputation and livelihood. Finally, there are offences which can be tried either in the magistrates' courts or the Crown Court; for example thefts and burglary. As your Lordships know, they are known in the shorthand as "either-way" offences. In those cases the defendant must consent to be tried by the magistrates and, by not consenting, elects to be tried by a jury in the Crown Court.

Perhaps I may make one or two general comments before I come to the brief specifics of the Bill. I feel that it will not be the specifics--apart from one aspect--that will affect your Lordships' deliberations, but the generality. I know that many whose opinions I value have serious reservations, and I honour and respect them. I do not impugn or impeach the motives of anyone who takes a contrary view to that which I am putting forward. But I hope to convince your Lordships, not least those serried ranks immediately behind me, that if one looks at the argument and at the facts, where they are occasionally allowed to intrude, this is a proper, prudent, proportionate reform of a criminal justice system which is in need of it.

I wish to touch on another matter. The noble and learned Lord the Lord Chief Justice, Lord Bingham, very much wished to be present today to give his view. As your Lordships may know, he is sitting on the western circuit carrying out his judicial functions. He specifically asked me to tell your Lordships that it is a matter of great regret to him that he cannot be here today because the dates were an inevitable, unfortunate, unforeseen clash. But he also wished me to tell your Lordships that he is in support of the curtailment of the automatic right to trial by jury which this Bill brings about. He asked me to repeat that, not to say it for the first time because, as he reminded me, he has been on public record to that effect in the past.

I come quite briefly to the Bill, then I shall look at one or two facts and a little history. This Bill inserts new sections to replace the relevant provisions of the Magistrates' Courts Act 1980, omitting any requirement for the defendant's consent to summary trial in either-way cases. It provides that the initial decision--I underline the word "initial"--as to where

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these cases are to be heard should rest with the magistrates, based on clear criteria which are new and set out in the Bill.

When determining the mode of trial on the initial decision occasion, magistrates will be required to have regard not only (as present legislation requires) to such factors as the gravity of the offence, the complexity of the case and to any defence representations, but also--this is of critical importance--to the effect of conviction and the likely sentence on the defendant's livelihood and reputation.

We believe that the court should be required to consider the seriousness of the case from the defendant's perspective. In reaching that decision, it will be possible for the magistrates to be informed that a defendant has previous convictions to rebut a claim that he or she is of good character. But a magistrate who is told about previous convictions will not be permitted to participate in a subsequent trial or appeal. I believe it is commonly known that I would not have been willing to agree to such a reform without the appeal mechanism, which I shall describe in a moment. Given the appeal mechanism which is available as of right to a Crown Court judge on this distinct, discrete question of venue, I believe that we have got the balance right.

I want to reiterate one or two facts. Every year well over 90 per cent of all criminal cases are dealt with in the magistrates' courts; that is, 1.8 million cases. Around 400,000 of those are either-way cases. By contrast, around 65,000 either-way cases are dealt with in the Crown Court. Of those, 47,000 were directed to the Crown Court by magistrates; 18,500 defendants elected for Crown Court trial. Those facts are based on 1998 figures.

When it is suggested that in some way, which I have not been able to understand (doubtless my own deficiency) this is an attack on immemorial rights, Magna Carta or any other statute that happens to be conveniently at hand, I remind your Lordships that of those who elected trial, 60 per cent pleaded guilty; 15 per cent were acquitted by the jury. Of those who elected trial at the Crown Court (these are the facts and I make no commentary on them) and were convicted, 90 per cent had previous convictions and over one-third had 10 or more.

I return to what I submit is critical in the scheme of this reform. This Bill introduces a new right of appeal to the Crown Court for the defendant where a magistrates' court decides to try the either-way case itself. The appeal will be heard by a circuit judge who will be able to review the papers relating to the magistrates' decision very quickly, in exactly the same way as Crown Courts currently deal with appeals relating to bail decisions. It is the same tribunal which will be deciding on the venue of trial as presently deals with bail.

I shall spend a sentence or two on bail. A decision on bail by a Crown Court judge is virtually an absolute decision because there is no prospect of appeal from it in the overwhelming number of cases. It is therefore a

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determinative decision on liberty; it may well be on livelihood, on home and on employment. Therefore the appeal will be heard by a judge who is already entrusted in generally analogous circumstances with a decision on bail, and who has the power, if designated, to pass sentences as grave as those of life imprisonment.

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