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Mr. Kidney: I cannot forbear from saying that the practice of magistrates committing for sentence after the trial is as long-standing as the accused's right to choose trial in the Crown court rather than the magistrates court. However, that is by the bye. My hon. Friend said that the Scottish system was different because, in that system, it is the prosecutor who takes away the accused's right of jury trial, whereas, in the Bill, it will be the magistrates who do it. However, the principle of the two systems is the same, as the accused will not have a choice in either. What difference does it make if the prosecutor rather than the court makes the decision?

Mr. Clarke: I think that there is a qualitative difference--perhaps my hon. Friend does not share this view--between the decision on mode of trial being made by the prosecutor and the decision being made by a court with a right of appeal to the Crown court. I do not think that the two processes are the same thing at all. I think that the decisions are quite different in character and in approach, and that, therefore, there is no comparison between them. As I said, the Scottish system has an entirely different history and set of circumstances, and it deals with the matter in that way. I think that there is a difference in approach that should be reflected quite directly in our system.

Our critics have suggested that there will be many more cases in which defendants are committed for sentence because so many who opt for that route have lengthy

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criminal careers. However, it does not automatically follow that defendants have to go to the Crown court for sentence just because they have a long criminal record. We believe that magistrates are able to deal with most defendants' previous records without committing them for sentence. Nevertheless, the power to commit for sentence is an important safeguard. It ensures that the courts can impose an appropriate punishment in cases that unexpectedly turn out during the trial to be more serious than was anticipated, or in cases in which a defendant's previous conviction has seriously aggravated the offence.

Mr. Simon Hughes: Before the Government presented their proposals, did they consider the Scottish option of the prosecutor making the choice? Did they also consider the option of limiting the right to commit cases to the Crown court? Did Ministers evaluate those options, and can they present any evidence to support their conclusions?

Mr. Clarke: There was very full consideration of those issues. My hon. and learned Friend the Member for Medway has already mentioned the royal commission and all the processes surrounding it. I have to confess, however, that I do not think that very full consideration was given to the idea of going straight to the prosecutor, as the hon. Gentleman suggests, simply because most people in this country would think that that is a proposal too far. Therefore, although the option was on the agenda for discussion, I would not say that it was considered very fully. I think that most hon. Members and most members of the public would not think that using the prosecutor in that way is the right way to proceed.

Mr. Marshall-Andrews: With respect to my hon. Friend, I wonder whether he will deal with the central point. How can it be right that a magistrates court can take upon itself the responsibility to try a case, knowing nothing of the defendant's previous convictions, but then abnegate responsibility for sentencing that person when they do? Does he not understand from his experience that the two cannot be divorced and that the nature of the defendant's background impinges on the trial? What my hon. Friend is asking magistrates to do is not only wrong but impossible.

Mr. Clarke: I understand that. It is a powerful argument for the reputation clauses in the first Criminal Justice (Mode of Trial) Bill that was considered by the other place. It was a case against which he, along with many others, argued. Indeed, he argued against the whole Bill, as he is entitled to do. There is a case for bringing in reputation. It is one that the Government were prepared to consider directly, but many hon. Members, including my hon. Friend, argued that we should not do so.

I have attempted to deal with the arguments that have been made. I hope that my hon. Friend the Member for Stafford will consider withdrawing his new clause. If he decides not to do so, I will urge my colleagues to vote against it.

Mr. Kidney: I am grateful for, but not thrilled by, the support that I have received from Opposition Members. I am especially grateful for all that the hon. Member for Southwark, North and Bermondsey (Mr. Hughes) said because it accords with my view that the Bill is wrong

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in principle, that the Lord Justice Auld review ought to consider all the matters together and that we should not take this one out of context now.

As the hon. Gentleman was not here when I spoke, I should just mention that in its briefing the Association of Magisterial Officers set out a number of practical changes in the procedures of the magistrates and Crown courts which would go a long way to meeting the Government's objections to the state of affairs in those courts.

My hon. Friend the Minister found me out very early. I would be against the Bill even if he accepted the new clause. It would be a self-indulgence to insist on a vote when other important issues remain to be debated tonight; so with the leave of the House, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

Clause 1

Determination of mode of trial

Mr. Malins: I beg to move amendment No. 5, in page 1, line 12, at end insert--

'(aa) any written representations from the victim;'.

Mr. Deputy Speaker: With this it will be convenient to discuss the following amendments: No. 15, in page 1, line 13, leave out paragraph (b) and insert--

'(b) all the circumstances of the offence and of the accused including his antecedents if any; and'.

No. 6, in page 1, line 13, leave out--

'(but not of the accused)'

and insert "and of the accused".

No. 9, in page 1, line 17, leave out "paragraph (b)" and insert--

'paragraphs (a), (b) and (d)'.

No. 8, in page 1, line 19, at end insert--

(d) the antecedents of the accused.'.

No. 19, in page 1, line 19, at end insert--

'; and
(d) whether in all circumstances of the case a denial of jury trial would impinge upon the rights not only of the accused but also of the community at large to have the matter considered and adjudicated by a jury.'.

Mr. Malins: It occurs to me that we now have approximately one hour to debate not only this but other groups of amendments. That imposes on me the need to be brief because other right hon. and hon. Members want to speak.

This group of amendments relates to matters to be considered by the court when determining mode of trial. I speak initially to amendment No. 5, but I shall also speak to my amendments Nos. 6, 9 and 8. Amendment No. 5 refers to taking into account any written representations from the victim. Amendment No. 6 would make the clause read that the court shall consider

rather than

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I recall the Home Secretary saying at the beginning of our proceedings this afternoon that he could do business with the Opposition on the reputation clause, so I look to the Government tonight to take into account what they hear and to promise to do something in the spirit of what is suggested.

Mr. Charles Clarke: To clarify the terms of trade, as it were, if the Government accepted amendments on reputation, would the hon. Gentleman support the Bill, and does he believe that his Front-Bench spokesmen would?

Mr. Malins: I cannot speak for the Front-Bench spokesmen, and the nearest I have ever got to the Front Bench is to go and ask the Whip on duty what time the next vote is. I therefore have to speak for myself alone.

Much reference has been made to trial by jury, magistrates or stipendiary magistrates. I do not think that the House would wish us to talk in terms of having a better trial in one venue or another. As I said on Second Reading, a trial before a lay bench can be very good or very bad, depending on the day. The same applies to a stipendiary magistrate and to a jury. It is not so much about having a better trial, because all the venues can give a defendant a wonderful trial or not such a wonderful trial, depending on the circumstances. It is a question not of a better trial but of a different trial. We have to focus on defendants' ability and need, and hitherto their right, to ask for a jury trial because it is what they want.

The hon. and learned Member for Medway (Mr. Marshall-Andrews) is to be congratulated on everything that he has done on the general theme of taking all the factors into account--including the effect on the reputation of a defendant, when that is at stake. That is why I shall speak briefly and then hand over to other Members who want to contribute to the debate.

It is important that, when the court considers whether the offence should be tried summarily or on indictment, it should be fully informed on the case. That means everything; it does not mean holding back from the court some of the defendant's background in respect of his previous convictions. I should have much less objection to the Bill if it permitted magistrates, when hearing representations, to hear from the defence much more about the defendant--about his or her background and antecedents, his or her life style, job or reputation--or, for example, to hear what victims think and what the effect has been on them.

If one is to make a decision about punishment and mode of trial, it is important for the court in question to be fully informed as to the background. On Second Reading, the Home Secretary said, as though it were the most powerful argument:

He continued:

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Let us suppose that the Home Secretary is right. Under my amendments, what would happen? The court would hear everything about the defendant from his own lips--including his antecedent history. In the case of the person with the 63 previous, who has stolen a bottle of whisky, the court could--under my proposals--say that no, that person would be tried in the magistrates court, or the court could say yes if that was just. The Home Secretary's point would thus be completely covered. If the Minister thinks that is not so, he must tell me.

Likewise, under my proposals, the defendant who wants the court to take into account the fact that he is a person of entirely good character and would like to be tried by his peers can say that to the court. The court can then take that into account. If it decides against the defendant, that decision is subject to appeal to the Crown court.

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