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Lord Cope of Berkeley: My Lords, I apologise for interrupting the noble and learned Lord and I am grateful to him for giving way. I should like to point out that the Conservatives changed their minds when in government, not when in opposition. Michael Howard did not proceed with the proposal, which was put to him by the Royal Commission. He received it along with other proposals and he left it somewhat in the air to await future developments--which have not been reported to us as yet. We did not proceed with this proposal while in government.

Lord Archer of Sandwell: My Lords, I believed that my noble and learned friend changed his mind while in

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government. It is rather like a barn dance where the couples change over in the middle. I mention it only so that we do not go overboard. To change one's mind is not compulsory. If some of us today say precisely what we were saying two years ago and before that, I hope that your Lordships will find it in your hearts to forgive us, even if that is not fashionable on the Front Benches.

I turn to the merits. I begin with two propositions which are unlikely to be challenged. As I understand it, in this debate they are common ground. First, in a contested case, the prospects of being acquitted in a jury trial are substantially greater than in a trial before magistrates. The current statistics state that in jury trials the prospects of an acquittal are 40 per cent; before magistrates they are 25 per cent. So much is conceded in the consultation paper.

Of course there is room for argument about the conclusions to be drawn from that research: those with a good defence are more likely to opt for jury trial; many cases before magistrates were not a bright prospect from the outset. However, it seems to emerge that if one is charged with an offence, the prospects of persuading a jury that there is at least a doubt are greater than the prospects of persuading magistrates; in particular, I suspect, stipendary magistrates. In view of what some noble Lords have said earlier, I say at once that that is not a criticism of magistrates. I have been happily married for 45 years, for 37 of them to a magistrate. I am a respectful admirer of the magistracy.

We have no statistics as to how many acquitted defendants are really guilty, any more than we have statistics as to how many convictions were unjust. There is no institutional means within any legal system to ensure that a court never makes a mistake of fact. But the conclusion is inescapable that if one is charged unjustly with an offence of which one is innocent, one is more likely to obtain justice before a jury. It must follow that a right to choose trial by jury helps to safeguard the innocent.

The second proposition is that on this subject it is tempting to indulge in absolutes. Of course, it would be over the top to accuse my noble and learned friend of wanting to sweep away a right enshrined in Magna Carta. Those who drafted Magna Carta addressed a different issue. But those who speak of Magna Carta emphasise two quite important factors. First, the practice of trial by jury goes back a long way in our history. That practice developed during the 13th century, and by the 14th century it was established. Secondly, the claim to put oneself "on the country", to have guilt or innocence decided by a jury, has been a right--not a concession, not a privilege, not a matter of grace, not a judgment of convenience--for something like 600 years.

Lord Phillips of Sudbury: My Lords, I thank my noble friend for giving way. Is it not right that a form of trial by jury existed in Saxon times?

Lord Archer of Sandwell: Yes, my Lords. The noble Lord should not tempt me. I had the privilege of being

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reared at the feet of Theodore Plucknett, whose name is probably hardly remembered these days, but for those of us of a certain generation it was a name to conjure with. I could give a long disquisition on the point, but I doubt that would take me to the head of the popularity stakes in your Lordships' House.

By the time of Blackstone, in the 18th century, trial by jury was associated with constitutional freedom. Perhaps I am allowed one quotation. Blackstone said:


    "Delay and little inconveniences in the form of justice are the price all free nations must pay for their liberty in more substantial matters".

Of course, my noble friends are right. The extent of the right has not always been clearly defined. The insistent voice of economy was not invented by my right honourable friend Gordon Brown, nor even by the previous Government. In the period of Henry VII there was discussion about methods of expediting legal trials. There have been successive inroads, but they always appear to relate to statutory offences which, at the time, were thought of as rather marginal and not really part of the criminal law. There was no summary trial for indictable offences, as my noble friend Lord Borrie pointed out, until 1855.

I stand to be corrected because I have not conducted deep research on the matter, but I have the impression that at that time those who were pressing for that statute were concerned about the severe penalties handed out in the higher courts. They were concerned to divert relatively minor offences to a court that passed relatively minor sentences. As I understand, at the time it was hardly noticed that they might be inventing a new procedure for determining guilt or innocence.

Most importantly, if an offence were indictable--if it were thought of as a real criminal offence--it could be tried summarily only with the consent of the accused. That has remained the position. I believe that the noble and learned Lord, Lord Ackner, pointed out that the James Committee considered the proposal to change that tradition and rejected it. However, it is quite true that four years ago the Royal Commission took a different view. That commission gave two reasons. First, it said that trials before magistrates were quicker and cheaper, although it said that that was not the reason why it made the recommendation. Secondly, it said that in principle a defendant should not be able to choose one mode of trial in preference to another because it offered him a better chance of acquittal.

That goes to the heart of the debate. If there is a difference between the prospect of acquittal in one forum rather than another, does that not indicate that there is a margin of doubt of which in one case the benefit is given to the defendant but in the other it is denied to him? If there is a right to the benefit of the doubt, is there not a right to choose the forum which is more likely to accord that benefit? If the reply to that question is yes, it is no answer to say that summary trial is quicker and cheaper. It is also no answer to say that there is a right of appeal from the magistrates as to the mode of trial and that the final decision is taken by someone else.

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The right of the individual to choose has been removed. That is the central issue. We can discuss other questions in later debates, but perhaps I may be permitted a word on one other matter. It is common ground that the size of the penalty which the accused may face, if he is convicted, is not the only criterion when considering the seriousness of the question of guilt or innocence. A person's reputation may be totally destroyed by a conviction. The Government answer that by saying that it is a factor that magistrates will be required to have in mind.

Surely, the fact that that concession is made indicates that an acquittal may be seen as more important for an upright citizen with a good character than for a less respectable individual with criminal convictions or an individual who does not have a job? So the argument runs that we are justified in consigning that second individual to a forum where he is more likely to be convicted. That cannot be squared with simple justice. The second individual is more likely to be stopped and questioned, he is more likely to be arrested or charged, and he is more likely to be convicted, so we add to his handicaps by denying him a more advantageous forum.

I believe that there are ways of reducing pointless committals to the Crown Court. In issue is the right to have guilt or innocence decided by a jury. I see no injustice in requiring a defendant to indicate whether he is contesting a case before the matter of forum is addressed. If the case is not contested, the right to insist on a trial on indictment should fall because there is no issue of guilt or innocence.

That solution was canvassed in 1995 in a Home Office consultation document. I thought that a persuasive case was deployed. I confess that I have lost sight of that proposal.

Baroness Kennedy of The Shaws: My Lords, I believe that has now been introduced by way of plea before venue. That is one of the reasons why we have seen such a considerable reduction in the number of people electing trial in the Crown Court. That procedure now exists.

Lord Archer of Sandwell: My Lords, I am grateful to my noble friend. These days I find I am a little out of date on some matters. If that is the case, perhaps we should see what consequences have followed from that and give them time to develop.

Baroness Kennedy of The Shaws: My Lords, since the Royal Commission considered this matter and made its recommendation that there should be a change on the issue of election the numbers have dropped by half. At that time 34,000 cases went to the Crown Court and now the number is 18,000--a halving--as a result of administrative changes introduced by the previous Government.


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