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Lord Thomas of Gresford: My Lords, perhaps I may ask the noble and learned Lord a question. In his opening remarks today he said that the application

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would be similar to a bail appeal application to a judge. Is it envisaged that that would be in chambers and that if the defendant were on remand he would have no right to appear, no evidence would be given, and that it would all be done on paper, as happens with bail appeals at the moment? How does the noble and learned Lord see it happening?

Lord Williams of Mostyn: My Lords, the noble Lord is confusing where we have reached. At the moment, I am still in the magistrates' court. That is where I am focusing my remarks. Those are the issues to which the magistrates' court must attend. What I said about bail a few hours ago was that we trust the Crown Court judge in matters of bail. If we trust the judge in the Crown Court to deal with questions of bail, I repeat that those are absolute powers not subject really to any overthrow or contrary determination.

I deal with the matter in two stages. First, although this is a matter for rules of court in due time--I am more than happy, as I said right at the beginning, for representations to be made about what should be in the rules of court, which I would of course transmit to my noble and learned friend the Lord Chancellor-- I would anticipate that when the application was made in the magistrates' court, the defendant would be there. I would thereafter anticipate--I take the point made by the noble Lord, Lord Thomas--something not dissimilar to the bail appeal to the Crown Court, where it is normally substantially a paper appeal, but oral representation is allowed where appropriate. I would anticipate--I recognise that this cannot be more than an educated assessment or guess--that there might be appeals in about a quarter of the cases.

As questions of right have been mentioned, perhaps I may indicate that this is not a Bill to take away the right to jury trial. A number of noble Lords have, I say with great respect, mistakenly put that argument. This is not such a Bill. It is actually--if noble Lords will allow me to explain, they will then understand--a Bill to take away the automatic, absolute right of a defendant in some circumstances to insist on jury trial. The two concepts are of course quite different.

Perhaps I may give a citation as it expresses my view and the Government's stance perfectly:

    "It seems to me objectionable to accord such an absolute right to the defendant on whose list of priorities the reaching of a just and expeditious decision may not rank very highly. This is a judicial decision properly to be made by the magistrates' court on consideration of all the relevant circumstances".

I add to that--I shall give the authorship in a moment--my own belief, which is reflected in the Bill, that there should be the automatic right to appeal for reflection and consideration by the Crown Court judge. That citation comes from the Lord Chief Justice. Some of your Lordships will have been present when we had very extensive debates and differences of view--the noble and learned Lord and I--when we were discussing questions of sexual offences and protection for either complainants in rape cases or defendants in rape cases. I do not think that anyone could fairly say about the noble and learned Lord the Lord Chief Justice that he does not commonly--

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indeed, I find on every occasion--take an independent view. What I quoted was his view. Therefore, I do not think it is bad motive on either side, whether institutionalised legalism or governmental absolutism, that should bring us to our conclusion.

The real tests are: what are the facts; what do we want from the criminal justice system; and how do we get it? The facts are that 97 per cent or so of all criminal cases--1.8 million a year--are tried in the magistrates' courts. That is a wholly different set of circumstances from the beginning of the jury system and its history in this country. Let us not forget that jurors were originally called to serve on juries because they knew all about the case. We then developed the opposite pole in that particular journey so that no one can be sworn to serve on a jury who knows anything at all about the facts of the case or the defendant. Let us remember that--not in any sense to diminish the present role of the jury, but to bear in mind that it should be a confident, functioning tool in the society we presently inhabit.

I shall move on to what the wicked magistrates have been doing. Four hundred thousand of the 1.8 million cases are either-way cases. If I am not mistaken, that means that in 400,000 cases, the defendants were content to be tried by the magistrates. I do not think that an alternative conclusion can be drawn from those bleak facts. Of the 65,000 either-way cases that went to the Crown Court last year, 47,000 were sent there by the magistrates. That was not because they wanted to clutch the trial of those cases to their own sweaty bosom, but because, in those cases, they thought it appropriate--for various discrete reasons, and those reasons are decided on a more limited basis than is provided in the Bill--to send 47,000 for trial in the Crown Court. Of the remainder who went to the Crown Court, as we have heard so often, 18,500 elected; of those 18,500, 60 per cent pleaded guilty.

Sir Iain Glidewell, in his review of the Crown Prosecution Service, said--and I am bound to say that whatever criticism I have heard against him, not being independent is not among the vocabulary--that he reached the conclusion that the fact that well over half of those people who elect for trial plead guilty raises a serious question about the present system. Although I know that not all noble Lords will necessarily agree with me--or at least not this evening--I am bound to say that his conclusion is rational and would seem the only one to be drawn here. We are talking about a relatively small number of people involved in cases that have substantially different consequences.

Noble Lords will not like me for saying this, but since it is true I shall. A person in the notional position of the wife of the noble and learned Lord, Lord Mayhew of Twysden, is in a different category from someone who has done 10 burglaries, elected on 10 different occasions to go to the Crown Court, and pleaded guilty on every occasion. I assert that to be a fact.

Lord Alexander of Weedon: My Lords, I thank the noble and learned Lord for giving way. I understand the distinction that he has made, which is a distinction

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between someone without any previous convictions and someone with previous convictions. Can he envisage any circumstances in which someone without previous convictions would not have his or her reputation seriously damaged as a result of a conviction?

Lord Williams of Mostyn: My Lords, probably not. I take the noble Lord's point, but I think one has to look at the particular case.

I have been attempting to develop a theme that the noble Lord was good enough to raise last night. It is right that your Lordships should know what was the noble Lord's question and what my response would have been. The noble Lord asked, perfectly legitimately and helpfully, what are the prospects of the young, black, unemployed lad as opposed to-- I shall cite the example he gave me--a white man with a professional qualification. I, too, should like to raise a question. What is the difference between the young, unemployed white lad and the successful black or Asian professional man? I do not believe that one needs to narrow these issues, except that I invite noble Lords to return to the tests set out in the Bill. They give a very full--I would say a super-abundant--discretion to the magistrates. If the magistrates are not fair-- I take the noble Lord's point entirely--the Crown Court judge is there. He has no personal investment in the sense that he wants to retain the case in the Crown Court.

Furthermore, I take the point that has been made about all institutions. Those who dwell in an institution tend to become part of it and are not capable of looking in from the outside. I am trying to look in from the outside.

I teased the noble Lord, Lord Thomas of Gresford, the other evening by saying that he was an unreconstructed barrister. But I think I teased myself more by admitting my gross error when I objected to the perfectly rational proposals of the noble and learned Lord, Lord Mayhew--the fact that they were perfectly rational was more reason to attack them! They turned out very well in practice.

It could be said that that element of double jeopardy which undoubtedly exists, and still subsists in the present state of law, is wholly alien to the British system and utterly inconsistent with the spirit of Magna Carta. I dare say that, had I thought of it, I should have said that myself. But times have changed. We have to bear in mind that many of our systems--again, this is simple fact, even if it is unpalatable--were brought into existence at a time when a defendant could not give evidence on his own behalf. That was still the position in 1855 when defendants were illiterate, innumerate, and, by and large, in the overwhelming majority of cases, were not represented and their cases were disposed of in under an hour. I merely refer to historical fact.

Lord Mayhew of Twysden: My Lords, I am grateful to the noble and learned Lord for allowing me to intervene. Is he not taking a false point in saying that

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this was an instance of double jeopardy but we learnt to live with it? The concept of double jeopardy and one's antipathy to it historically lies in the concept of the prosecution having two bites of the cherry in establishing a person's guilt. It is not an apt analogy to the case with which the noble and learned Lord is dealing, which is a question of sentence.

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