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Lord Mackenzie of Framwellgate: My Lords, I thank the noble Lord for giving way. By the way, my name is Lord Mackenzie, not Lord Maxwell, but that is a minor detail. During the debate on the Queen's Speech I said that those points were being made by vested interests and, being a former president of the Police Superintendents' Association, I can recognise a vested interest when I see one.

Lord Thomas of Gresford: My Lords, I am not going to be lectured by representatives of police organisations when some of the problems that have occurred in the criminal justice system in this country over the past 10 or 15 years have been caused by the failures and negligence of the investigators and not by the lawyers, the courts or the juries.

However, it is not the police, the lawyers or the judges and it is certainly not the politicians who are crucial in attaining justice in this country; it is the people. For no reward to themselves, thousands and thousands of people come forward every day, sometimes at personal risk, to be witnesses or complainants prepared to endure the ordeal of giving evidence in court. They are not treated particularly well, even if they themselves are the victims of the crime in question. But there could be no detection, no trial and no punishment without the people playing their part. Why do they do it? They do it because they have confidence in the system; they believe in it. As the noble Lord, Lord Cope, pointed out, where that confidence is lacking in certain communities--for example, ethnic communities--in this country, the curtains are closed to the police. Every harassment on racist grounds, every wrongful arrest and every wrongful conviction seriously undermines the effectiveness of the system.

The outstanding miscarriages of justice to which I have already referred have changed procedures drastically in the higher courts. Trial by jury started with important safeguards and those have developed over the years to address the deficiencies which have emerged. Consider the jury as the judges of the facts, the arbiters of the ultimate decision of guilt or innocence. Juries are a cross-section of the community

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from which they are chosen for their age, gender, religion, intelligence and ethnic background, and they determine the facts. They come to court for a fortnight or three weeks, open-minded, anxious to do their duty as they are instructed, and that is exactly what they do.

There have been developments to the jury system, as the noble and learned Lord the Attorney-General pointed out: no challenge without cause, majority verdicts and so on. But the importance of juries is also that they are a crucial factor in increasing the confidence of the public in the system. By and large, jurors report favourably of their experience in the court and their feelings are widely disseminated among the population. That is the first strength of the jury system: a jury comprises a cross-section of the community.

There is also a professional judge who will ensure that the trial is properly conducted according to law and will give the appropriate rulings. In the Crown Court there is full disclosure. To balance the developments that have taken place elsewhere in the jury system, we now have not simply the disclosure of witness statements, which has always been part and parcel of the higher courts, but also primary disclosure of documents. There has been the introduction, for very good reason, of defence statements and there is now secondary disclosure where documents are brought out by the prosecution and handed to the defence. It is the failure of that to happen in the past that has caused some of the miscarriages of justice. There are now no surprises--nothing up the sleeve of either prosecution or defence. Indeed, where information or documents are withheld in the public interest--where public interest immunity is claimed--that is now vetted by the judge, who looks at that information and at those documents and either approves the decision of the prosecution to withhold it or rejects that decision.

The other advantage of a jury trial is that legal argument takes place in the absence of the jury; for example, on whether character should be an issue or whether admissions are admissible. Previous convictions or admissions which are not admissible are not heard by, and do not in any way prejudice the minds of, the jury. Furthermore, the legal principles that a judge in a Crown Court trial applies, both on matters in the absence of the jury and in a summing up, are stated and discussed openly in court and any error that there may be will be rectified on appeal. Finally, in the Crown Court there is a full record of the proceedings.

Let us contrast that with the situation in the magistrates' court. Lay magistrates themselves are extremely public spirited. They work for nothing. I do not criticise them on a personal basis. But if the Magistrates' Association wants to get involved in this argument on the side of the promoters of the Bill, I believe that the spotlight should be turned on that system and that we should take a proper look at it. It is, as the noble Lord said, an enclosed system with which magistrates on the whole are very pleased. But it is not

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the envy of the world. No other common law system rushes to adopt the system of lay magistrates advised by a clerk. They do not exist as such even in Scotland.

In my father's day, the magistrates' court was known as the police court. In my day, looking back, it was extraordinary how the magistrates' courts were run by the great landowners and coalowners of the district. In a coal-mining and industrial area such as my own, which had returned no Conservative Member of Parliament in this century, it was nevertheless the landowners who ran the magistrates' courts. I shall not name them--their scions, their sons, were Members of your Lordships' House until three weeks ago and it would perhaps be inappropriate for me to do so. It may be that the composition of the magistrates' court today has changed from 30 years ago, but it is still predominantly white, middle aged and middle class. The understanding of magistrates and the sympathy that should be shown to the way of life of the young, the ethnic minorities and the gay community may not be outstanding features of magistrates' courts.

Very little else about the system has altered over the past 30 years. Advice on legal matters is still obtained from the clerk--perhaps one in two or one in three may be a qualified solicitor or barrister. Advice is given in retirement and not in open court. The clerk is called to discuss legal issues in the magistrates' retiring room. The advice cannot be checked. Only on an application to state a case to the Divisional Court has legal reasoning to be given. It is only then that one will learn what kind of advice and what quality of advice has been given to the magistrates. Disclosure is rudimentary. In summary-only trials, no obligation exists on the prosecution to disclose anything to the defence. In either-way cases, the prosecution must give what is called advance information, which may be no more than a case summary or perhaps a photostat of an officer's notebook. Sometimes--for example, my last experience in a magistrates' court earlier this year--one is given a series of statements on the day that one arrives in court. The noble Lord, Lord Cope, referred to the fact that one has to catch up with the prosecution case on the hoof. In the magistrates' court, the cards of the prosecution are still kept closely to the chest.

Legal argument is determined by lay magistrates. Previous convictions and alleged admissions and their admissibility are argued before the lay magistrates. If they decide that a character should not go in or that an admission is not admissible, they are then forced to conduct what in one case the Court of Appeal described as the "mental gymnastics" of thrusting out of their mind all that they have learnt about the particular defendant--his string of convictions or the fact that he has made admissions which have been ruled out. Again, as magistrates do not give reasons, it is a matter of pure speculation in a magistrates' court as to whether the magistrates have been properly advised as to the law and then actually applied the law to the facts. The proceedings are not recorded, save by the clerk writing it all out in hand--writing as much as he can get down. Not even stipendiary magistrates give

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reasons. In other jurisdictions--for example, the district court in Hong Kong--reasons for verdict are a requirement. It is possible to look at the way the case has been decided by the magistrate, to look at whether he has got the law right, and to see whether he has applied the law to the facts, so that his conclusions can be challenged.

The only possible justification for these derogations from the fairness of a trial in the Crown Court is the limited sentencing power of the magistrates--six months for one offence or a maximum of 12 months for consecutive sentencing for either-way offences. If the Bill goes forward, I believe that the next step will be a Bill to increase to two years the sentencing power of the magistrates. That is the power of the sheriff in Scotland. I am quite certain that that would come in quickly and we would be told by the noble and learned Lord that, on balance, he has made the right decision. I have heard him say that about 20 times. In all the legislation that he promotes, "on balance" he has got it right. That is the way he always puts it. I sometimes think of him as a tightrope walker crossing the swimming baths in Rhyl, in spangled tights--sometimes falling in.

The point I am seeking to make is that the procedural reforms that have been made in the Crown Court in response to the well-known miscarriages of justice have passed the magistrates' court by. For each one of the well-known cases, there must be hundreds of little miscarriages going on in the magistrates' court which undermine, drip, by drip, by drip, people's confidence in the system. So when the acquittal rate in contested trials in the Crown Court runs at 40 per cent and in the magistrates' court at 25 per cent, the reason is not that juries are gullible, or are ready to be hoodwinked, or are easily moved by emotive speeches from mendacious counsel; it is that the trial process in the Crown Court is open, fairer and more up-to-date, and the jury which decides the issues understands the people who are appearing in front of it, whether as witnesses or as defendants.

These proposals mean that the proportion of wrongful convictions will rise and the confidence of the public will decline. They also mean--I know that other noble Lords will refer to this--that people from the ethnic minorities will suffer quite disproportionately. It is not necessary for me to fulminate about Magna Carta or ancient rights and so forth. There has been a lot of nonsense said on that. However, the fact is that for the purpose of saving money this Government seek to deprive defendants of their right to be tried by a fairer and more up-to-date system.

An amusing and ironic element of this matter is that the protagonists, the Home Secretary and the Attorney-General, have completely changed their minds in the space of two years. They have moved round a full 180 degrees. As the noble Lord, Lord Cope, pointed out, there is only a very narrow border between sanity and insanity when the noble and learned Lord the Attorney-General speaks about these proposals.

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Will the measures save money or prevent delay? The Bill envisages a hearing to determine venue at which both sides are represented, whereas at the moment an election to be heard by the magistrates is followed immediately by the hearing. That will no longer happen under the new proposals if convictions have been disclosed. There may be an appeal to the Crown Court. There is provision to return to the magistrates' court for trial and then a further appeal on conviction to the Crown Court. When the noble and learned Lord the Attorney-General spoke of his concern for child witnesses, does he not appreciate that under this new system of appeal to the Crown Court in a case involving children, those children will have to give their evidence twice? The Crown Court starts from the beginning again. It is a hearing de novo and all witnesses are called again. Instead of continuing as at present where in the Crown Court a child or vulnerable witness comes to give evidence once, that witness will need to give evidence twice.

Are there any abuses of the present system? Yes, perhaps there are, and these take two forms. First, occasionally solicitors may encourage clients to choose a jury trial to make more money. However, they are easily discernible. Generally speaking, there will have been no discussion with counsel. If a solicitor is asked about the defence, he is unable to say. When in the Crown Court, I have refused costs or reduced the costs of counsel to a solicitor where I believed that the system was being abused. I believe that that is the way to deal with such abuse.

Secondly, perhaps there are times when a defendant wants to stay on remand for as long as possible. If one so wishes, the process can be speeded up under the present system by simply getting rid of the committal proceedings when a person elects or chooses to be tried in the Crown Court. I know that other speakers are anxious to deal with these points so I shall not develop those themes.

This is a bad Bill because it is divisive. It splits defendants who are, of course, all presumed to be innocent until proved guilty. They are split into the sheep and the goats. All noble Lords need to do is to envisage St Peter sitting as a magistrate. On one side he has a stairway that leads up to the Crown Court, while on the other side he has a stairway that leads down to the magistrates' court. The white-collar workers go to the left and up the stairs, while the blue-collar workers go down to the right. BUPA? Go up to the left. NHS? Down to the right. Freemasons and Rotarians whose reputations are at stake? They go up to the left and to the Crown Court. Round Table members, particularly those who dress up as Santa Claus, go down to the right to the magistrates' court. The noble and learned Lord the Attorney-General referred to North Wales. I can imagine the circumstances: a Welsh-speaking defendant? He goes up the stairs to the left. An English-speaking Welshman? He goes down the stairs to the right. Liverpudlian? Go straight to gaol. Do not pass Go because he has already pinched the £200 cash.

As I have said, this is a bad Bill. Those who propose it simply do not have the practical experience to realise that it will not achieve its professed aim of saving

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money. The Bill is unamendable. My party will oppose it to the bitter end. Tempting though it may be, we do not seek to vote against its Second Reading. We feel that it is far better that the Government should have the benefit of the festive season to consider a question during the quiz after the brandy and the mince pies. Which famous government Minister of the Crown described the proposals when they first came forward as "madness"? The answer, as noble Lords will see from the list of today's speakers, is that the name at the top and the bottom of that list ought to be printed upsidedown. That is the way in which the noble and learned Lord the Attorney-General has turned turtle on this issue. As the noble Baroness, Lady Kennedy, might say, they should be sent "Home Officewards" to think again.

5.5 p.m.

Lord Ackner: My Lords, one problem facing the newly appointed judge, or even the established judge, is to resist the temptation of entering the forensic arena once appointed to the Bench. I sought, in my time, to deal with that problem by reading the papers thoroughly, making a note of the questions that I thought were important, and then, sadly, seeing all those questions being asked by the Bar so that in fact I had little to do but to sit and act as an umpire. That was of course essentially my proper function.

I have done something similar in regard to this debate because repetition is tedious and judicial repetition is doubly tedious. As I anticipated, the various and many points that I would have made if I had started the debate have been admirably covered by noble Lords who have spoken ahead of me; namely, the noble Lord, Lord Cope, speaking on behalf of the Conservatives and the noble Lord, Lord Thomas, speaking on behalf of the Liberal Democrats.

The point I wish to stress is the way that the Government have approached this problem. We have seen any number of consultative documents on the matter. I believe that virtually the last one was published in July 1998 where the Government sought to set out the history and the arguments on both sides. In the heading "History of Election for Trial" Magna Carta is sub-headed and then the section sets out the development of the present classification. Here one has the first mention of the Interdepartmental Committee on the Distribution of Criminal Business between the Crown Court and Magistrates' Courts which sat in 1975 and has since been known as the James committee. That is because it was Lord Justice James, an eminent and highly respected member of the Court of Appeal, who presided over the committee. The reference that it receives on the first page of the consultative paper is in relation to the largely unrelated developments in the summary jurisdiction of the magistrates' courts and the categories of cases, which had multiplied, and which were simplified by that committee. There is a later reference to the committee in the same document when the Home

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Office gives a precis of the options and the status quo. It merely states:

    "The fundamental argument in favour of the present arrangements is that allowing defendants charged with any non-summary offence to have access to trial by jury, which is a mode of trial that is considered appropriate for all serious cases, helps to promote confidence in the criminal justice system".

A great deal of the James committee's report relates to what we are considering today. Paragraph 47, under the heading, "The choice of forum", states:

    "We now come to the central issue of our inquiry and the one which has exercised us most, namely how the mode of trial of offences in the intermediate category"--

the "either-way" category--

    "should be determined ... Within the framework of the present system there are 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. Under any system all three will have some say, but the final decision must rest with one of them. We consider each in turn".

There follows a reference to the prosecution and the Scottish system, and there is later a reference to the court. The report states at paragraph 49:

    "As the possibility of the court determining the forum attracted most attention in the evidence we received, we deal with it in some detail"--

and indeed it does.

Paragraph 50 states that if the magistrates' court decided on a summary trial, then,

    "both parties would have a right of appeal to the Crown Court against this decision. The right of appeal raised questions of the appropriate period for lodging an appeal; whether the proceedings should be adjourned until that period had expired or whether, to enable the trial to proceed, the defendant should be able to waive his right of appeal; and whether the appeal should be heard in chambers or in open court".

I have referred to the report in some detail because the right of appeal was raised some 25 years ago. It is not a sudden flash of wisdom which has returned to my noble and learned friend the Attorney-General his much appreciated sanity.

I continue briefly with references to how the committee dealt with the matter. The committee states at paragraph 53 of the report:

    "In the great majority of cases the reasons given were that the case was gone into more thoroughly in the Crown Court; that there was a jury to try it; that there was a better chance of being acquitted there; that judges were better qualified than magistrates ... The only reason given by a significant number of defendants that could be said to be unrelated to the perceived differences between trial on indictment and summary trial was to take advantage of the delay in the case being brought to trial. This was mentioned by 13 per cent of defendants".

In the same paragraph the committee states that it is,

    "satisfied on the basis of the results of the survey and in the light of the evidence we have received that the number of cases in which defendants elect trial by jury for 'secondary' reasons (ie reasons not directly related to a preference for trial by judge and jury) is nowhere near large enough to justify substituting for the defendant's right of election a decision by the magistrates' court, even if that decision were subject to appeal".

So the relevance of that addition to the problem--the right of appeal--has been carefully weighed up.

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Perhaps I may quote the committee's conclusions. They should be spelt out. I find it very depressing how little is to be found in consultative papers of what has happened in the past. Last week, during the last debate on the gracious Speech, I drew attention to proposals to reform the Crown Court--which clearly suppressed crucial past decisions because the Court Service must have known how some of its proposals had been treated and finally accepted as being of no substance.

During the passage of the Access to Justice Bill I drew attention to the Lord Chancellor's consultative paper, The Way Ahead, which blamed the barristers' profession for the fact that very few solicitors had effectively exercised their rights of audience. I pointed out that investigations made by two universities at the suit of the Lord Chancellor's Consultative Committee had indicated a variety of reasons for that situation. Solicitors found that it did not pay to do the advocacy work, or that it was disruptive of their practices; or too few solicitors were able to pass what were accepted to be reasonably easy examinations set by their own profession to qualify to exercise such rights.

This is what is said at paragraph 59:

    "Despite the weighty support for the proposal that the decision on 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".

That point has already been brought out in the submissions made recently to your Lordships. It continues:

    "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. 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 in which the same court (albeit differently constituted) had refused the defendant's request for jury trial... Fourthly, a procedure involving the hearing and determination by magistrates of representations about the mode of trial, possibly a trial before different justices and the establishment of an appellate process would be a potential cause of delay in the disposal of business and would create an additional task for both magistrates' courts and the Crown Court. Fifthly, although the majority of defendants consent to summary trial, both the OPCS survey and the Sheffield research show that defendants themselves attach importance to the choice of forum at present vested in a defendant. Most of those who at present elect trial by jury do so for reasons connected with the possibility of conviction: they think 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."

The noble Lord, Lord Thomas of Gresford, has explained why they should reach that view. My quotation continues:

    "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, loss of 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 to 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

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    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. We consider that 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."

The quotation ends with the memorable phrase:

    "Jury trial should be available either to anyone charged with a particular offence, regardless of his personal position, or to no one."

That was the view of this highly experienced committee whose main function was to deal with this very problem. Your Lordships may ask, as I asked, why all this has been suppressed. It ought to have been brought to your Lordships' attention a long time back, and I am happy if the only function which I have performed is to make sure that your Lordships have it in full now.

5.24 p.m.

Lord Borrie: My Lords, juries have never had any role whatever in the vast majority of criminal cases which are tried in this country. In practice I would have thought that all your Lordships would agree that they never could have, unless of course a wholly disproportionate chunk of taxpayers' money was devoted to provide the resources and facilities that a universal jury system would require.

Historically, jury trials have been available only for indictable offences for more serious crimes. The rest were tried by what I shall call magistrates' courts although, like the noble Lord, Lord Thomas of Gresford, I recall that they have in the past been called something less attractive. Of course, magistrates' courts in various guises have been with us for a very long time. As the noble and learned Lord the Attorney-General reminded us, it was only as recently as 1855, relatively recently for those of your Lordships who wish to quote Magna Carta, that what I will call this very curious and odd thing in terms of principle was brought in--a choice given to the accused, in certain formerly indictable offences, as to whether he wished to be tried by jury or not. It is that very curious choice which causes the great difficulty and debate, not only the one we are having today. It was also discussed by the James committee and, if I may refer to the noble and learned Lord, Lord Ackner, the James committee considerations were of course gone into very considerably by the Royal Commission in 1993--

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