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Baroness Kennedy of The Shaws: My Lords, perhaps I may reassure the noble Lord that there is no research on that.

Lord Dholakia: My Lords, on a number of occasions I have worked with the noble Baroness and I am grateful for her comment on that point.

Yesterday the Home Secretary--as I understood him--suggested that research evidence is now available which demonstrates that there is no significant difference in the way in which black and white defendants are treated in the magistrates' courts. The Attorney-General sent me a briefing note on ethnic dimensions to mode of trial decisions, which I received this afternoon. I am sure that the noble Lord, Lord Warner, used that as a basis for his contribution when he said that he could see no difference. I am sure that the noble and learned Lord may be using the same document.

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Let me deal with that matter. The study identified in that report caused me a considerable amount of anxiety. I am not satisfied that I can come to the same decision as the Home Secretary, for reasons I shall explain in a moment. But I was surprised to hear the noble Lord, Lord Warner, say that, as a member of the Royal Statistical Society, the Home Secretary has a better grasp of such figures. Let me take the House through the basis on which some of the information was used by the noble Lord.

The document says that currently pilots are taking place in 11 police areas into the transfer of ethnic appearance data collected by the police on persons arrested to magistrates' and Crown Court computer systems. What does the Home Office tell me? The report says the level of missing data is at least one quarter, thus making it difficult to identify ethnic differences in court decisions at local level. So that information cannot be used because part of it is missing.

We then come to four pilot schemes mentioned in this research document where such information was collected. It says that the missing data level in the four areas was 4 per cent, 12 per cent, 9 per cent and 12 per cent. Again, that is a Home Office conclusion, not mine. The conclusion of the researchers was that the sample of ethnic data was too small to reach a decision. The noble Lord, Lord Warner, cannot use this document because it cannot give statistically sound information on the basis of which one can reach a conclusion.

The document goes further. It says that it is not possible to provide data by offence or age group, both of which are known to vary among ethnic groups. Also, factors such as previous convictions cannot be taken into account. I am trying to point out the negative aspect of this research.

Lord Warner: My Lords, will the noble Lord accept that I did not go into the detail of that study because I did not feel it was fair as I did not realise the noble Lord had the full briefing. If he reads Hansard tomorrow he will see that my point was that the evidence did not support the idea that people from ethnic minorities would be disadvantaged in magistrates' courts. I did not claim that they would be advantaged. He is knocking down an argument that I did not make.

Lord Dholakia: My Lords, I am grateful to the noble Lord for that explanation. All I am saying is that if he had used the same research as that to which I am referring, his conclusion would not stand up, again, for reasons I shall explain in a moment. If the noble Lord wants to conduct proper research, I shall give an example of how that can be done.

That study, in its present form, is unhelpful. However, it points to one fact; that is, that ethnic minority defendants in those four police areas were found to be more likely to be committed to the Crown Court for trial. To draw a conclusion that there is no difference in treatment in the magistrates' courts on

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the basis of such limited information is dangerous. I shall of course say more when the research is published on 9th December.

When Dr Roger Hood of the Institute of Criminology at Oxford undertook a study of Crown Courts he had a sample of over 6,000 ethnic men and women--the first time in the history of this country. Nearly 1,500 male offenders were identified from the records held by the police and he used 15 legally relevant variables and a variety of bases for making comparisons. That does not come out in the data of the document given to me by the noble and learned Lord. Dr Hood's conclusions were that, all else being equal, black offenders had a 5 to 8 per cent greater probability of being sent to prison than whites. Of course, that relates to the Crown Court and I do not dispute that. I am saying that if research is to be quoted, then it should be research which has a sound basis, taking into account sentencing variables, comparing like with like. Then we can come to a conclusion rather than just looking at the end product based on a decision-making process in three or four courts in this country. Those are less than reliable figures.

We will have more faith in research findings when similar methodology is applied. Unfortunately, that is not the case. I hope that that was not the basis on which a judgment was made about black people and magistracy. I was grateful that the noble and learned Lord, Lord Mayhew, mentioned the Society of Black Lawyers and the research by Professor Lee Bridges. But I must say to him that it was not Lee Bridges; it was the Home Office which carried out that research for the Royal Commission on Criminal Justice. That was the information compiled by the Home Office research unit and given as a research paper to the Royal Commission.

It said that black youths were especially likely to be stopped by the police and arrested, although only a small proportion of arrests resulted from stops. If only one in 10 results in a criminal justice process, then it is no surprise that nine out of 10 have an adversarial contact with the police. Once arrested, black youngsters are less likely to be cautioned than whites. The overall pattern of charges brought against blacks differs from that for whites. Again and again we heard that argument. Black defendants are more likely to be remanded in custody. Black defendants are more likely to plead not guilty to the charges brought against them. Black defendants are more likely to be tried in the Crown Court. Black defendants are more likely to be acquitted. Black defendants, when found guilty of a crime, are more likely to receive longer and more custodial sentences and a different range of non-custodial disposals. That was the Home Office evidence. One has simply to go back in the file to find out the position of black people.

The result of all that--the noble Baroness, Lady Kennedy, is absolutely right--is that we are destroying the confidence of black people in this system. Coming after what happened in the case of Stephen Lawrence, it is even more painful. The result of all this is that

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18 per cent of the male prison population is black and 26 per cent--one in four women--in British prisons is black.

The Home Office will have to ask why, within the criminal justice system, we have produced this discrepancy. Black people see the criminal justice process within the definition provided by the analysis of Sir William Macpherson of institutional racism, but time will not permit me to repeat that.

It is safe to assume that discrimination and differential treatment occurs in all fields and our courts are no exception. Almost all the research to which I have had access confirms that this is so. If we accept that that selection process is right and a broad cross-section of the community is involved, then the magistracy, and to some extent the judiciary, will not be exceptional in holding prejudicial views. It is no good being squeamish about it.

The late Lord Taylor once said,

    "Race issues go to the heart of our system of justice which demands that all are treated as equals before the law. It is therefore a matter of the gravest concern if members of the ethnic minorities feel that they are discriminated against by the criminal justice system, more so if their fears are borne out in reality".

The working of the system is generally characterised by considerable variation in the way decisions are taken. The impact of these decisions adversely affects black defendants. For these reasons it is important to ensure that this perception, even if it is not borne out by the latest research evidence, offers an alternative so that the confidence of the minority in the system is not shaken. The jury system does offer that alternative.

The noble and learned Lord has already confirmed that the right of appeal will be available. We still do not know how many people will appeal or how much it will cost. I come back to the point about the need to build the confidence of our community in the justice system. The present Bill is unhelpful in that respect.

9.9 p.m.

Viscount Astor: My Lords, this is a one-clause Bill which your Lordships have been debating for, I believe, over five hours now. In the process your Lordships have dissected it, taken it to pieces and destroyed it. I can be very brief because it will take only a slight kick to bury it forever.

The noble and learned has suffered trial by jury by his peers. If there were majority verdicts in your Lordships' House he would have lost 18 to three this evening. The noble Earl, Lord Russell, said that the noble and learned Lord would make a good job of a bad case. If he manages that this evening he is worth every penny that the Government are paying him.

I am not a lawyer or a magistrate. I am not going to follow the noble Lord, Lord Warner, who showed, as a non-lawyer, how easy it is to lose a legal argument against a battery of legal experts using statistics which did not really match his conclusions and facts which did not prove the case.

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Noble Lords have heard that this Bill strikes at the very heart of the judicial system of this country. Trial by jury dates back to at least the 13th century and Magna Carta. I understand that trial by seven of a defendant's peers replaced trial by combat or ordeal in which the accused might be required to plunge his arm into boiling water. If he survived the shock he was deemed to have God and right on his side. I say to the noble and learned Lord that if he manages to do that he might have a chance of getting this Bill through your Lordships' House, but it will require something at least as remarkable as that.

Some noble Lords have commented on the previous Home Secretary's position on this Bill. Perhaps I may briefly address that issue. The Conservative government effected a major change in the system with the introduction of plea before venue. That measure was introduced by the Criminal Procedure and Investigations Act 1996 and came into force on 1st October 1997. In either-way cases a defendant is required to indicate his plea before the venue for his trial is decided. If he indicates that he will plead guilty the magistrates may proceed to convict and sentence him without him having the opportunity to choose a Crown Court trial.

That measure was designed to improve the efficiency of the system by cutting back on the number of either-way trials reaching the Crown Court unnecessarily where the defendant chose jury trial at the magistrates' hearing but pleaded guilty before trial at the Crown Court.

However, the Conservative government did not remove the right of a defendant pleading not guilty before the magistrates to choose jury trial despite that being a recommendation of the Runciman Royal Commission. The Conservative government stated that the recommendation should be reconsidered in the light of the effect of a plea before venue. The previous government were not persuaded of the need for change. So there is no change of mind.

There are many reasons to argue against this Bill. The Home Office consultation paper states that in 1990, 60 per cent of the cases dealt with in the Crown Court were sent there because magistrates declined jurisdiction in those cases, although magistrates' sentencing powers would have been sufficient to deal with the majority of those cases. In 1992, 46,500 cases--which is about 63 per cent--were sent to Crown Court because magistrates declined jurisdiction. Cases have not gone to Crown Court purely because defendants wanted their cases tried there.

These proposals will shift the burden to the magistrates' courts. One has to remember that only a year ago the Government berated magistrates' courts for their ever growing delays and inefficiency. The Government have failed to give proper consideration to whether magistrates' courts will have the capacity to deal with this sharp increase in the number of trials for serious charges which would result from this Bill. The Government should address the delays in Crown Courts, not bypass them.

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Much has been made of the claim that lawyers have a vested interest in more trials being tried in Crown Court. That charge could be levelled against the legal profession in some circumstances, but one cannot say that about Justice, Liberty, the Institute of Race Relations, the Howard League and NACRO, all of whom oppose the Bill. Solicitors, of course, have an interest in more cases being tried in magistrates' courts.

I turn to trial by jury. Noble Lords opposite appeared to argue that this was not a fundamental right and that it was a right instituted about 140 years ago. That argument has been totally demolished.

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