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Lord Bingham of Cornhill: I respond in three ways. First, the suggestion which was criticised by my noble and learned predecessor contained no right of appeal. I hope I have made it plain that I attach some importance to that ingredient. Secondly, I hope that anyone who heard what I said will be left in no doubt whatever that I draw no distinction between the fairness of trial at the two levels.
However, I recognise that perceptions matter in these cases. There are instances where it will be important, from the defendant's perception of such matters, that he should be entitled to challenge the evidence of the policeman, or whatever it is, before a jury. That is the kind of consideration to which magistrates and circuit judges will pay attention. I
hope that the noble Lord will recall that I expressed a lack of affection for the criteria set out in the proposed Clause 19.
Lord Lipsey: I cannot begin to match the depth of expertise with which the noble and learned Lord, Lord Bingham of Cornhill, addressed the Committee. In part I rise for that reason. I am not a lawyer. I became interested in this subject only when I read the Second Reading debate and noted the degree to which it had been dominated by the perspective of the lawyer. Lawyers are enormously wise, learned and important people and bring a huge amount of expertise to the deliberations of this Chamber. However, theirs is not the only perspective in these matters. When I decided to become involved I amassed the largest pile of papers on the subject and went into my room at home. I asked myself what view I would take if, with a towel round my head, I sought to write a leader for a serious newspaper, assuming any still exist. Would I believe that the Government were right or wrong in this matter? As far as I could, I dismissed from my mind the fact that I supported the Government. When I have written leaders in the past I have found the ratio to be 51:49. However, in this case I believe that the case for the Government's proposal is overwhelming, not from the perspective of loyalty but from the wider perspective which I intend to place before the Committee.
I spent many hours of joyful discussion with the noble Lord, Lord Jenkins of Hillhead, in his Royal Commission on Electoral Reform. Following his wise lead, we were in agreement perhaps 95 per cent of time. I agree with the noble Lord that there is no exact analogy between the changes to the jury system under this Bill and those made in the past, particularly those related to majority verdicts. But the point goes wider than that. We all agree that jury trial is the jewel in the crown of the British judicial system, but like all jewels it can become battered and require repolishing from time to time. There have been changes. The introduction of this right in 1855 was itself a change. In addition, there were changes to remove the right to peremptory challenge and to allow majority verdicts. Once upon a time, if one was prosecuted under the breathalyser law one would go off to court and, with any luck, find other boozers on the jury who would acquit. We stopped the right to jury trial on that charge. Therefore, while this is the jewel in the crown, can we make it shine still more brightly?
The second perspective that I bring to the debate is that I am an economist. The noble Lord, Lord Roll, may agree that economists do not tend to see life in terms of absolute good and absolute bad. We tend to look at trade-offs, for better or for ill. Justice is an extraordinarily important matter but it is not the only one to be embraced at any price. We could quite easily spend the whole of our national income on justice. Everybody could have the right to trial by jury for anything. Everybody's reputation is affected. For some reason I have never committed a parking offence, and I should be deeply disturbed by the effect on my reputation if I found myself in that position. I
am proud of that record. However, there is no right to jury trial for that matter. We could all have George Carman to represent us. We could reward the noble Lord, Lord Alexander, and his learned friends more richly for their skills; we could provide legal aid to everyone, irrespective of wealth, so that people who were unfairly charged did not take a hit in their pocket, rather than, as now, provide it just to poor people like the Maxwell brothers. We could spend the whole of our national income on justice. But the money comes from somewhere and a balance must be struck. Whether we think it is better to spend more on other things is a matter of judgment.The savings that we would forgo by this amendment--I have studied the matter in some detail--are not small beer. The Government's estimate is £100 million. The noble Lord, Lord Cope, believes that that is an over-estimate. I believe it is more likely that the Government's figure is an under-estimate because it leaves out a number of matters; for example, the cost to jurors. Jurors have to sit round for days and are not properly paid or compensated for their loss of earnings. There is also the cost to witnesses who turn up for hearings. Their product is lost thereby. The estimate takes no account of private expenditure and so is a very partial figure. Most importantly, the figure takes no account of non-monetary costs. A rape victim waiting for the hearing of a case may be forced to sit about because other cases have been put down for hearing in that court and may have to spend extra months anxiously wondering about going through the ordeal of giving evidence. That is also a cost.
If we did not have this right would we invent it? It costs us as much as 4,000 nurses or 4,000 teachers. What happens in reality? Ninety per cent of those who take up this option already have a criminal record. They are assumed to be not guilty but they already have a criminal record. Sixty per cent plead guilty at the door of the court. It is striking that after the event one-third say that they regret having done it. It may be that in some cases they are put up to it by their lawyers, who obviously enjoy the process of preparing for the case and no doubt believe that they are doing the best for their clients. However, afterwards some of their clients wish that they had not gone down that path. Obviously, they do not think much of the right either.
Finally, I should like to make a point about the black community. It seems to me that that is the basis of the most powerful argument put forward by opponents of the Bill. It is said that black people do not trust magistrates and that if they cannot opt for jury trial, they will lose confidence in justice. I make two points. First, at least some of them may opt for jury trial in the hope that they will get an "O J Simpson". They hope that there will be enough black jurors who are fundamentally hostile to the criminal justice system.
Lord Lipsey: If noble Lords opposite do not believe that to be true, they are living in a rather different
world from the reality as described to me by the many criminal lawyers with whom I have discussed this matter.
Lord Mishcon: It is not only noble Lords opposite who object; noble Lords on these Benches also object.
Lord Lipsey: The noble Lord was not growling at me at the time and therefore I did not include him. However, I take the point that he makes. I believe that there are people who do that, though they end up gravely disappointed by it. I believe that all black jurors are as fair as white jurors. However, there is a tendency to do that and I do not think that we should encourage it.
Lord Lester of Herne Hill: I yield to no one on the basis of the noble Lord's expertise in economics, but what is the basis of his knowledge of what black people think about the right to trial by jury?
Lord Lipsey: I have many friends in professions such as social work, and others who defend black defendants. I have tried to gather as many sources of information as I can. I bow to the expertise of the noble Lord in this matter. I do not know in how many criminal cases the noble Lord has defended black people in recent times; no doubt he will tell the Committee when he speaks.
More fundamentally, if there is a lack of trust in the magistrates' courts among black people--that may be so--we should change those courts. The Government are now beginning to recruit more black magistrates, and that is the way to tackle the problem. Earlier today the noble Baroness, Lady Kennedy, said that those who were against the Bill were totally illiberal. I shall make a totally liberal point. I am not a Hampstead liberal; I live in Streatham. I should like consideration to be given to the law on soft drugs. Many in the black community believe that it is designed to penalise them and their culture and if it was removed their faith in the criminal justice system would be increased. So that appears to me to be the strongest case for the Bill, but it does not seem to me to be strong enough to carry the day because the savings under this Bill are enormous. They would be forgone if the amendment were passed. Any governing party responsibly looking at delays in the justice system--the party opposite did so when in government, and we are doing so in government--would be bound to introduce a measure of this kind.
4.30 p.m.
The Earl of Onslow: I thank the noble Lord, Lord Lipsey, for adding votes to those who disagree with the Government on the issue. His remarks about "blacks" were disgraceful. I have never previously used that word in this House, and I hope that I never have to use it again.
With immense trepidation, I turn to the noble and learned Lord the Lord Chief Justice. I speak as someone who gained only five O-levels in, I think,
1953. Therefore, to argue with the Lord Chief Justice is a somewhat foolhardy venture but, nevertheless, I shall seek to do so.The noble and learned Lord opened his remarks by saying that the present system works perfectly well. I think that we all agree with that. The argument is over cost and delay, with some people acting as what used to be called barrack-room lawyers or playing the old soldier. The one appalling fault of the Bill is that it separates justice from one class of person to another. If we say all murder cases should be tried by the head of the Esher Boy Scouts troop, we are making it fair for all murder cases. What we cannot say is that some murder cases may be tried by the head of the Esher Boy Scouts troop and others may not. That is the core fault of the Bill. It is essential that justice is not only seen to be done for all, but is equal for all.
In his maiden speech, the noble and learned Lord, Lord Mayhew, told the story of his wife walking out of a shop with a sack of groceries and forgetting to pay for them. Had she been from a different background and caught, it is possible that the store detective would have said, "We've heard that before; there's no way we're going to let you off". It is equally certain that the magistrate would have said, "She's the sort of person we'll not allow to go down for that".
In the recent case of Jeremy Guscott, it seemed right for that to go to trial by jury. I do not know what the magistrates would have decided in that case, but it had all the characteristics of everything going wrong.
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