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6.20 pm
Mr. Michael Howard (Folkestone and Hythe): It is a great privilege to follow the hon. Member for Bristol, East (Jean Corston). She made an extremely cogent speech. I particularly enjoyed her remarks about the Criminal Justice and Public Order Act 1994. She will recall that, in opposition, Labour Front Benchers opposed the right of silence provisions, although they did abstain on Third Reading.
I was also particularly interested in the hon. Lady's comments on the long study that she has evidently given to the issue of jury trials. She will forgive me if I am wrong--I hope that she will correct me if I am wrong--but I do not recall her rushing to support the original proposal, which now finds itself in the Criminal Justice (Mode of Trial)(No.2 ) Bill, when I made it in February 1997.
The Home Secretary has acknowledged that introducing the Bill in Parliament represents for him a complete volte-face from the position that he took when I proposed it, for consultation and without commitment, in February 1997. He then described it as wrong, short-sighted and likely to prove ineffective. Unfortunately--I say this to him as gently as I can--he has been more than a little disingenuous in explaining the change in his position.
In a press notice issued by the Home Office, on 19 November 1999--the day on which the original version of the Bill was introduced in another place--the Home Secretary laid great emphasis in explaining his change of position on what he described as the "new provision" of a special right of appeal. That, he said, deals with what he described as one of his "key worries" when he was in opposition.
The Home Secretary cannot possibly be unaware of the fact that, in the very statement that I made in February 1997, when I announced the proposal, I referred to the provision of a right of appeal against a decision by the magistrates not to allow a case to go to the Crown court. So that is hardly a "new provision".
So far from making any reference in his response to my statement to what he now describes as one of his "key worries", the Home Secretary criticised that right of appeal on the grounds that it would cause delay. I am, therefore, sorry to say to the Home Secretary--as gently as I can--that he has been less than straightforward in the explanation that he has given for his change of heart.
I suppose that no one should be at all surprised by that. The Home Secretary's change of heart on this issue is all of a piece with his change of heart on many other issues.
When he was in opposition, he described private prisons as "morally repugnant", but now he embraces them with enthusiasm. The truth is that Labour Members won the previous general election through unprincipled opportunist opposition, and they have remained true to those values in government.
My right. hon. and hon. Friends on the Opposition Front Bench have made their position on the proposal clear, and they are perfectly entitled to do so. As I made clear when I originally made the proposal, it was for consultation and it was without commitment. But I know what I wanted to do. The Home Secretary is quite right: had I remained Home Secretary after the general election, I would indeed have tried to persuade my colleagues to accept and implement the proposal. I do not know whether I would have succeeded in doing so. Nevertheless, that is what I have tried to do--for all the reasons stated by the Home Secretary and, in another place, by the Attorney-General when they presented the Bill in its original form.
If the Bill had been presented to the House in its original form, I would have voted for it. I know that it is a moot point whether that support would have caused more embarrassment to my right hon. Friends on the Front Bench or to the Home Secretary, but that is what I would have done. That is what I was fully prepared to do, because I have not changed my mind.
Mr. Hogg:
Had my right hon. and learned Friend presented his proposals on the right of appeal, would that right of appeal be an oral one or on the papers, as is proposed by the Home Secretary?
Mr. Howard:
I had not considered in detail the type of appeal that would be offered, and so I cannot give my right hon. and learned Friend an answer to that question.
The Bill that we have before us today has departed from the original Bill in one vital respect.
Virtually every statement that I have been able to find on this issue has emphasised the importance of taking into account, in any decision on the mode of trial, the effect of a conviction on the reputation and livelihood of the defendant. The reason for that--it has absolutely nothing to do with class, colour or any of the other matters that have been drawn into the argument--is that, for someone with a string of convictions, the only punishment that he would receive if he were convicted is the sentence imposed by the court. If someone of good character were convicted, however, particularly if his or her livelihood depends on that good character, the punishment is far more severe than the sentence imposed by the court.
That is why the Home Secretary was absolutely right, when he originally announced his proposal, to describe the requirement to take into account the effect of a conviction on the defendant's livelihood and reputation as a "safeguard". That was the word that he used, and he was right.
That is why the Attorney-General, when he was justifying the original Bill in another place, chose this example to make his case:
I agree with the Home Secretary that that provision was a safeguard. I agree with the Attorney-General that someone with 10 previous convictions for shoplifting a jelly or a banana from Tesco should not have an automatic right to trial by jury. I agree with the Lord Chief Justice that the elderly man whom he tried, who had more than 60 convictions for shoplifting, should not have an automatic right to trial by jury. I agree with the chief constable of Kent in the example that he gave. That is why I would have voted for the Bill in its original form.
But I also passionately believe that a lorry driver with an unblemished reputation, whatever his colour, who might lose his job if he is convicted of an offence of dishonesty, should at least have that fact taken into account by the magistrates when they decide the mode of trial.
Mr. Marshall-Andrews:
Does the right hon. and learned Gentleman accept that one of the Bill's major vices is that magistrates are proscribed from considering anybody's background? They are forbidden to do so.
Mr. Howard:
I was coming to that point. The scale of the Home Secretary's volte-face on the issue is enormous.
Mr. Howard:
I should like to make my point before I give way to the Home Secretary. The original Bill required magistrates to take such issues into account. The redrafted Bill could have said that reputation and livelihood may be taken into account, but instead it forbids magistrates to take them into account. They are not allowed to have the slightest regard to the effect of a conviction on the reputation or livelihood of a defendant. If the Home Secretary still wants to intervene, perhaps he can explain how magistrates can decide whether they have sufficient powers to sentence a defendant, as the Bill requires them to do, without taking into account their circumstances, which the Bill forbids them to do. That is beyond me and the House has had no explanation. I shall be delighted to give way if the right hon. Gentleman wants to answer that.
Mr. Straw:
My question to the right hon. and learned Gentleman is different. It is clear from the text that he has just read out that the court can take into account the likely sentence. That is bound to include some circumstances relating to the offender.
The right hon. and learned Gentleman gave an example of a lorry driver. Whether a lorry driver convicted of a theft loses his job will depend on the circumstances of the theft, but a lorry driver convicted of drink-driving will certainly lose his job. Is the right hon. and learned Gentleman suggesting that the offence of drink-driving should be upgraded from summary only to either way?
Mr. Howard:
I am assessing the criteria that magistrates should take into account when deciding the mode of trial for either way offences, because that is what the Bill is about. The Home Secretary has not answered my question and I believe that what he said was wrong. New section 19(2) says:
Is it right that someone, let us say, who has 10 previous convictions for shoplifting a jelly or a banana from Tesco is automatically entitled to the right to trial by jury?--[Official Report, House of Lords, 2 December 1999; Vol. 607, c. 923.]
7 Mar 2000 : Column 916
That is why the Lord Chief Justice, when he spoke in favour of the original Bill in another place, used this example to make his case:
On a relatively recent visit to a court outside London . . . I found myself trying for shoplifting an elderly man, of weak intellect, in poor health, who had more than 60 convictions for that offence. He had really no defence, as the jury concluded.--[Official Report, House of Lords, 20 January 2000; Vol. 608, c. 1253.]
The example cited by the chief constable of Kent, and quoted by the Home Secretary in his speech today, was a similar example. The example quoted by the Home Secretary himself in his speech today was a similar example. That is why the original Bill contained the requirement that the magistrates should take into account the effect of a conviction on the defendant's livelihood and reputation.
For the purpose of subsection (1) above the court shall consider--. . .
I stress those words "not of the accused". Paragraph (c) continues
(b) any of the circumstances of the offence (but not of the accused) which appears to the court to be relevant.
whether, having regard to the matters to be considered under paragraph (b), the punishment which a magistrates' court would have power to impose for that offence would be adequate.
Paragraph (b) governs paragraph (c). According to the language of the Bill, in considering whether they have sufficient powers to sentence the defendant appropriately, magistrates would, extraordinarily, not be allowed to take into account the circumstances of the defendant.
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