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Mr. Clappison: Does my hon. and learned Friend recall that the Home Secretary, when shadow Home Secretary, said on 27 February 1996 that the Government should wait to see what effect the 1996 Act had on the number of cases being committed to the Crown court at the election of the defendant? Since then, as he rightly says, the number of cases has gone down. The Home Secretary does not have a leg to stand on.
Mr. Garnier: I agree with my hon. Friend.
If, as the Government claim, people are abusing the system of election because they want to spend Christmas at home rather than in prison, it should be made clear to them at the point of election that they will be penalised if they are found to have abused the system. As Baroness Kennedy said:
The Bill will save money, says the Home Secretary. Will it really? Can we rely on the Government's unaudited assumptions? First, there will be a hearing before the magistrates about where the case should be heard. They will no longer be able to take into account the effect of a possible conviction on the livelihood or the
reputation of the accused, which means that instead of discriminating in favour of one class of defendant--or to use the Home Secretary's words, a police officer, an MP or even a Secretary of State--the new Bill will lead to a new and diametrically opposite sort of discrimination. Those with previous convictions will--thanks to proposed new section 19(2)(c) of the Magistrates' Courts Act 1980, to be introduced by the Bill--have a greater chance of a jury trial than those with no criminal record at all. Potential loss of a good reputation and livelihood will now be a positive bar to trial by jury, because the Bill does not allow that to be taken into account in a decision on venue.
Added to the many concerns that have been made plain by those who speak on behalf of the ethnic minority communities--the Home Secretary surely remembers the voices of the Lawrence family solicitor, Imran Khan, and of Peter Herbert, the chairman of the Society of Black Lawyers--that will add to the loss of confidence in the summary justice system that many groups have already undergone. It is undoubtedly true that those venue hearings will be lengthy and fiercely contested and that they will lead to dissatisfaction in the minds of many defendants with the summary process and the magistrates courts. With what result? There will be appeals to the Crown court under new section 20 of the 1980 Act, and there will be plenty of them. The Home Secretary's written answers about projected appeal numbers are no doubt honestly given, but they betray the Whitehall mandarin's detachment from real life in the criminal courts. These appeals will go only to the resident judge--the senior judge in each court centre--and will be heard, the Home Secretary tells us, within 48 hours.
Mr. Hogg:
There is, of course, a right of appeal, to which my hon. and learned Friend is drawing the House's attention; but will he also point out that, if the appeal is heard within 48 hours, there is a real risk that those legal representatives of the accused person who are familiar with the case will not be present, or able in any way to deal with the appeal?
Mr. Garnier:
That is a telling point, and one that has escaped the Home Secretary.
The resident judges--there are not many of them--will not thank the Home Secretary for this additional work when they are already hard pressed dealing with trial, pre-trial and other contested matters, as well as the administrative work that goes with their job. Even according to the Home Secretary's figures, appeals to resident judges are likely to add between two and four hours a week to their court work load, which will mean that other trials are delayed or held up. Nor is there any help at hand, as the Lord Chancellor's Department keeps them on short rations, and the Home Secretary has announced in a written answer that there will be no additional judges, full or part time, and no additional stipendiary magistrates, full or part time, to assist in dealing with the extra work that the Bill will create.
Let us assume that the judge agrees with the magistrates, and sends the case back for summary trial. Another bench of JPs will have to be found for a third hearing; if they convict, the defendant has the right of appeal to the Crown court for a complete re-hearing, before a judge and two magistrates, against conviction and/or sentence. If they convict but do not think they have adequate sentencing powers, the magistrates can commit
the defendant to the Crown court for sentence. The defendant can appeal against the increased sentence as well. That involves five possible court appearances.
Rather than decreasing the number of court hearings, the Bill will tend to increase their number, and to increase the cost of criminal justice. By increasing the number of hearings and causing delay, it will increase the anguish experienced by witnesses and victims of crime. That is the very point about which the hon. Member for Salford (Ms Blears) was concerned, and if she maintains her concern she should vote with us tonight.
Mr. Simon Hughes:
I hope that Labour Members are listening to this. Can the hon. and learned Gentleman confirm that the arguments about the number of stages that will follow the Bill, and the cost and delay involved, have never been evaluated by Government, have never been added to the equation, and have never been counted against any arguable savings that Government are presenting as some justification for their case?
Mr. Garnier:
The Bill was presented by a Home Secretary who claims to be a lawyer, but who has simply not advised himself of the evidence and the issues. There have been a number of written answers from either the Home Secretary or his junior ministerial colleagues over the past two or three weeks dealing with the number of cases likely to go to appeal and the possible costs, but they are wholly unaudited: they are guesses.
Ms Blears:
The figures given by the hon. and learned Gentleman in regard to the likelihood of appeals strike me as guesswork on his own part. How does he explain the fact that the appeal rate against magistrates' decisions in the thousands of cases already heard by them--cases of theft, burglary and plenty of either-way offences--is less than 2 per cent? How does he explain the fact that people are content with magistrates' decisions, feel that they have had a fair trial and feel that they have been dealt with properly? Surely the hon. and learned Gentleman's figures have been plucked out of the air: we have no evidence that that is the likely number of appeals.
Mr. Garnier:
I am not sure that I follow the hon. Lady's argument, but if extended to its logical conclusion, it probably suggests that we do away with any form of criminal trial system.
What further reason did the Home Secretary adduce to persuade us to support the Bill? He said that the current system was an old lag's charter. It is no such thing, as the Home Secretary knows and as even a cursory analysis will reveal. But if it is an old lag's charter, why not listen to Lady Kennedy? If it is an old lag's charter, why did the Government abandon our "honesty in sentencing" proposals, which allow a judge to disregard time spent on remand by those who have tried to play the system?
In any event, as the hon. and learned Member for Medway pointed out, it is well known that the Crown Prosecution Service overcharges defendants on occasion. The defendants then do not plead guilty, and elect trial at the Crown court. At the Crown court, perhaps at the plea and directions hearing in advance of the trial, independent prosecuting counsel will advise on the merits of the prosecution, reduce the charge and secure a guilty plea to the lesser charge.
How can the exercise of a right to jury trial--where a defendant is given better disclosure of the prosecution case, and where he may feel that he will be tried by his peers and not by those of a different ethnic, social or economic background--be termed an abuse? It is as much a defendant's right as any right enjoyed by the citizen, and should not be done away with at the whim of this Home Secretary.
Sir Nicholas Lyell:
Is not that point particularly important now, when the Director of Public Prosecutions has just gone public with his grave concern about the difficulty of the police in giving proper disclosure, and the difficulty of the Crown Prosecution Service in correcting that? We are talking about 40 per cent. and 14 per cent. of all cases in each instance.
Mr. Garnier:
My right hon. and learned Friend is entirely right. These are not new points, yet they seem to have escaped the attention of the Home Secretary.
Our concern is all the greater when we consider that our criminal justice system is largely consensual. Defendants are rarely shackled in court, and often sit in the dock by themselves. Security is low key, and guilty men are sentenced knowing that, although they have been convicted, they have been justly convicted by their fellow citizens who have heard the evidence.
Ways can be found of creating sticks and carrots here that would achieve the same ends.--[Official Report, House of Lords, 20 January 2000; Vol. 608, c. 1282.]
That seems sensible and timely advice.
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