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Mr. Edward Garnier (Harborough): It is very easy to be misled by statistics, especially those provided by the Government. The figure for those appearing before the Crown court with the records that the hon. Gentleman describes relates to all defendants in all trials. It relates not only to those who elect trial by jury, but to those who have no choice in the matter who are sent to the Crown court either by the magistrates on committal or because the matter for which they are being tried must go before the Crown court. I am sure that the hon. Gentleman would not wish to take at face value the statistics provided by the Government on that matter.
Mr. Kidney: I entirely accept that point. In so far as the hon and learned Gentleman suggests that perhaps more than a tenth of those who elect trial by jury are people of previous good character, that only goes to support another of my objections to the Bill: people should be entitled to choose trial by jury for what I regard as serious offences.
If people are committed to the Crown court for sentence by the magistrates, who have taken upon themselves the right to conduct the trial, because they decide at the end of the trial that the person should receive a greater sentence than they are capable of imposing, that will mean that one of the Home Office estimated cost savings will be lost. After all, the biggest factor in the cost savings is that people will receive shorter sentences of imprisonment from the magistrates court rather than the Crown court. If magistrates do not pass sentence and send people to the Crown court for longer sentences, that cost saving will not arise.
I am fortified in that view by a briefing from the Association of Magisterial Officers, which many of us received back in April. The association describes itself as the trade union of magistrates courts staff, so when I picked up the briefing I thought that it would favour the Government's proposal to give more work to magistrates courts and improve the reputation and prestige of its members. However, the association opposes the Bill and says that although the Government claim that it will achieve cost savings, such savings are illusory. If magistrates have to try people who wanted to be tried in the Crown court, they will send more cases to the Crown court for sentencing.
Mr. Nick Hawkins (Surrey Heath): The hon. Gentleman rightly referred to the important briefing from the Association of Magisterial Officers, but he did not say that that association is particularly important because it represents a large majority of legal staff who work in magistrates courts, up to and including those employed as
the deputy justice's clerk. The Government, if they are to be believed, give the impression that everyone involved with magistrates courts supports the Bill, but, as the hon. Gentleman has made clear, senior staff such as those clerks strongly oppose it. Does he agree that that represents a serious criticism?
Mr. Kidney: Yes. Almost three quarters of magistrates courts staff are claimed to be members of the association, so it represents a significant body of opinion. Practitioners who might have had an interest in the Bill becoming law oppose it in principle. That is compelling evidence.
The Legal Action Group opposes the "clear unfairness" of allowing magistrates to deny trial by jury and commit people to the Crown court for sentence. The new clause would prevent that. If the Bill is a matter of principle for the Government, that principle ought to be that the court that hears the trial should hand out the sentence. If the Government argue that delay is the problem and that they are solving it, surely interposing a procedure whereby a magistrate would send a defendant to the Crown court for sentence would cause delay, not remove it. If their argument rests on cost, I argue that committals for sentence would cause extra cost in themselves because of the practicalities and because sentences dished out in the Crown court would be longer than those given by the magistrates court. For all those reasons, I ask hon. Members to support the new clause.
Mr. Humfrey Malins (Woking): I shall speak briefly to support amendment No. 12, which I have tabled and which would achieve much the same as the new clause moved by the hon. Member for Stafford (Mr. Kidney). We are concerned about committing to the Crown court for sentence people who have been forced to accept trial in the magistrates court. A number of members of the judiciary and law practitioners think that it would terribly unfair to say to a defendant, "We've forced you to be tried in this court, but we reserve the right to send you to the Crown court for sentence." At present, the magistrates court tells a person charged with an either-way offence such as a theft that the offence can be tried there or in the Crown court and that he can opt for either venue. However, if the defendant consents to be tried in the magistrates court and is convicted and the magistrate then discovers that he has a string of previous convictions, the court reserves the right to send him to the Crown court for sentence. So far, so good--defendants know what is going on.
What troubles me is that, under the Bill, the court may say to the defendant, "We have considered the nature of the case and the circumstances of the offence, and we believe that the punishment that we have the power to impose for the offence is adequate, and we have come to the conclusion that you must be tried here." "Okay," says the defendant, "if that is what you say." It is a little incongruous to say at the end of a case, if the person is convicted, "Sorry about that. We're going to send you to the Crown court."
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Mr. Robert Marshall-Andrews (Medway): Does not that underline the practical absurdity of magistrates not being able to take previous convictions and character into account when deciding whether someone should be sent to the Crown court? May I ask the hon. Gentleman to
reflect on a particular example? Suppose that the defence for someone charged with possession of drugs who has previous convictions for drugs offences is that the drugs were planted because he had refused to be a police informer. That is a perfectly ordinary case. He says that he wants to go to the Crown court, but he cannot tell the magistrates that he has previous convictions. The magistrates refuse him, and he is tried in the magistrates court. When the magistrates find out about his previous convictions, they say that they wish they had sent the chap to the Crown court because he is going there anyway. Does not that illustrate the absolute absurdity of the present state of affairs, and the fact that the Bill will cause enormous delay and immense expense?
Mr. Malins: I do not think that anyone in the House could have illustrated the absurdity of the situation better than the hon. and learned Gentleman, whose record is very distinguished. He has hit upon a very good point. It seems slightly odd to me that that can be expected to happen. It also seems slightly unfair, and I should be grateful if the Government would reconsider that possibility.
Mr. Garnier: I support the thrust of new clause 3, which was so sensibly introduced by the hon. Member for Stafford (Mr. Kidney), and the amendment tabled by my hon. Friend the Member for Woking (Mr. Malins). Their concerns are abundantly sensible and, I suggest, not capable of contradiction. As my hon. Friend the Member for Woking said, they were brilliantly reinforced by the example given by the hon. and learned Member for Medway (Mr. Marshall-Andrews).
One of the further reasons why the new clause and the amendment deserve consideration is that on Second Reading the Home Secretary relied on the Scottish example to justify not allowing the criminal defendant the right of election. He said:
- Scotland is, rightly, held out to be a nation with a more effective criminal justice system than ours. There, the decision on mode of trial has never rested with the defendant, but is made by the prosecutor.--[Official Report, 7 March 2000; Vol. 345, c. 886.]
In Scotland, the prosecutor chooses the venue, but the sheriff who tries the summary case is the equivalent of a stipendiary magistrate or a circuit judge in this jurisdiction, not a bench of lay magistrates. Moreover, the maximum sentence available on summary trial in Scotland is three months, not six, and unlike in this country, the summary court has no power to commit a convicted defendant to a higher court for a more severe sentence if it feels that its powers are insufficient.
On Second Reading, the Home Secretary was trying to persuade the House of Commons that the Scottish example was of some value to us in our deliberations on the Bill. For the reasons that have been outlined by the hon. Member for Stafford in his new clause, and those outlined by my hon. Friend the Member for Woking, the Home Secretary's arguments are without merit. I invite the House to pay considerable attention to what the hon. Gentleman and my hon. Friend have just said.
Mr. Simon Hughes (Southwark, North and Bermondsey): I apologise to the hon. Member for Stafford (Mr. Kidney) for
arriving slightly late. I heard the end of his speech and all that of the hon. Member for Woking (Mr. Malins), and I understand the argument.I support in general--because it is logical--the proposition that people should know in advance the potential consequences for them of a certain plea, but I want to make a point that is slightly different from those that have been made so far. If ever there was an argument for not legislating now, it is evidenced by this debate.
We should consider the terms of reference for the Auld committee. A review is in progress: Lord Justice Auld is going around the country collecting evidence. He is also going abroad and looking at other jurisdictions, and considering the Scottish experience. He has asked some profound questions, which relate to issues such as this but which also go wider. He asks, for example, whether there should be only one form of court. Should the magistrates court and the Crown court be merged to avoid the committal process? Should there be two types of judge, a full-time professional judge and a part-time lay judge? Should the work be divided between them, but in the same court?
Should there be different rules about who might be on a jury? Many of us are disqualified from jury service. Is the way in which we form juries correct, or ought we to review the methods of selection in order to include people who may currently be excluded? Some say that juries are currently very unbalanced, because many "professional" people submit the equivalent of sick notes, with the result that juries do not represent the true balance of the community as we would wish them to.
Should there be more stipendiary magistrates, or more lay magistrates? We could have an important debate about that. Which would command more confidence among the electorate, and the public as a whole? Which would cost more?
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