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Mr. Simon Hughes: If the hon. Gentleman's proposals were accepted and magistrates courts heard the panoply of arguments, would that court have no further jurisdiction after it had decided on the mode of trial? Thereafter, would different magistrates and a different clerk have to deal with that defendant? When any such group had dealt with a defendant, those people could no longer be involved in the case.
Mr. Malins: It is common practice that one cannot try a case in a magistrates court if one has heard the bail application. It is as simple as that. When I hear bail applications, I hear all the antecedent history and am thus debarred from taking the trial. That is everyday practice in magistrates courts. There would be a fresh bench.
It is miserable not to permit a court to take into account everything about the defendant--including background, antecedent history, previous convictions and general reputation. That is wrong, unfair and unjust. If the magistrates court makes the wrong decision, the Crown court can put it right. I venture to suggest that, if my amendments were accepted, most people would think that the position was much fairer than it is at present.
Mr. Garnier: I speak to amendment No. 19, tabled by myself and other Opposition Members. It would insert in clause 1, and thereby in section 19 of the Magistrates' Court Act 1980, a further paragraph. At the moment, section 19(1) of the 1980 Act, as amended by clause 1 of the Bill, would say:
- The court--
BUSINESS OF THE HOUSE
Motion made, and Question put forthwith, pursuant to Standing Order No. 15 (Exempted business),
- That, at this day's sitting, the Local Government Bill [Lords] and the Learning and Skills Bill [Lords] may be proceeded with, though opposed, until any hour.--[Mr. Dowd.]
Criminal Justice (Mode of Trial) (No. 2) Bill
Not amended in the Standing Committee, again considered.
Question again proposed, That the amendment be made.
Mr. Garnier: The Act would say:
- (1) The court shall consider whether the offence
- (2) For the purpose of subsection (1) above the court shall consider--
(a) the nature of the case;
(b) any of the circumstances of the offence (but not of the accused) which appears to the court to be relevant; and
(c) whether, having regard to the matters to be considered under paragraph (b), the punishment which a magistrates' court would have power to impose for the offence would be adequate.
- 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.
The right to jury trial has always been regarded as central to our system of criminal justice. That is because the system, unlike many others, is adversarial. Serious criminal cases brought by the state should not be tried by the state's appointees, but should be tried by fellow citizens drawn at random. That has always been regarded as particularly important to defend the rights of minorities and dissidents who are likely to be, or could be, unpopular with judges and appointed magistrates.
The truth of that proposition--I should have thought that the contrary was unarguable--has been tested in a great many cases throughout history, but I just want to refer to two examples, in relatively recent times.
In 1975, a young, former South African, active campaigner against apartheid was charged with theft from a bank. There remains considerable suspicion that the case was a set-up by the South African security services. The case was vigorously prosecuted, but the jury at the central criminal court in London would have none of it, and the defendant was properly acquitted. He is now a Minister of State in the Foreign and Commonwealth Office. Under the terms of the Bill, there is a near certainty that he would now be denied jury trial.
The Parliamentary Secretary, Lord Chancellor's Department (Mr. David Lock) rose--
Mr. Garnier: Will the hon. Gentleman allow me to finish the paragraph?
The second example that I would like to bring to the attention of the House is that of Clive Ponting, who was tried at the central criminal court, just after the Falklands war was completed, for leaking Government documents relating to the Belgrano. Despite directions from the trial judge, in effect to--
Mr. Tam Dalyell (Linlithgow): On a point of order, Mr. Deputy Speaker. Ponting did not leak those documents. He sent them to me, and I treated them as a proceeding in Parliament.
Mr. Deputy Speaker: Order. The hon. Gentleman knows better than that. The hon. and learned Gentleman had not given way. Mr. Edward Garnier.
Mr. Edward Leigh (Gainsborough): My hon. and learned Friend the Member for Harborough (Mr. Garnier) mentioned the Belgrano.
Mr. Garnier: Let me--[Interruption.]
Mr. Garnier: Let me accept, in the spirit of cross-party co-operation, that what the hon. Member for Linlithgow (Mr. Dalyell) said is perfectly right, but I am aware of the way in which time is marching on and I do not consider that the fact that that particular detail was not included in my remarks alters the thrust of what I am attempting to say. Undeniably, the hon. Gentleman knows more about the facts of the Clive Ponting case than most of us, but the point is that Clive Ponting was acquitted despite the vigorous directions of the judge.
A further reason why we submit that paragraph (d) should be added to the section is that the ethnic minority communities, or a large number of members of those communities, have a perception that they do not receive equal treatment in front of the magistrates. No one suggests that that is a universal practice, but it is a strongly held perception in such groups.
The right to elect trial is the most valuable method of curing problems--both real and perceived. I make that point as a public supporter of the lay magistracy--I made that clear earlier--and even though I do not share the perception of ethnic minority communities that they do not receive equal treatment before lay magistrates. Magistrates will decide whether a case should remain with them or go to the Crown court. Unless they bear in mind such considerations, and bear in mind the rights of the accused and the rights of the community at large, who both have an interest in seeing that justice is done, they will arrive at what will be seen as unfair decisions.
Any number of bodies interested in criminal justice--they range from the Criminal Bar Association to the Society of Labour Lawyers--find this Bill wholly objectionable. To a small extent, their concerns might be mitigated were paragraph (d) in amendment No. 19 to be inserted into the Bill. Of more importance than the concerns of the Criminal Bar Association, the Bar Council, the Society of Labour Lawyers, the Society of Liberal Democrat Lawyers or, indeed, the Society of Conservative Lawyers are the concerns of the Society of
Black Lawyers. When such a body, speaking out of genuine interest and genuine knowledge of the fears of its community, expresses doubts about the wisdom of the Bill, the House should pay careful attention. In making those remarks, I remind the House and, in particular, this Home Secretary of the concerns of Mr. Imran Khan, the solicitor instructed on behalf of the Lawrence family to appear for them at the Macpherson inquiry.I also remind the House of the words of Mr. Peter Herbert, the chairman of the Society of Black Lawyers. He said that it feared that the Bill, without the corrections that we seek to make to it, would add to the loss of confidence in the summary justice system that many of its clients already have.
Mr. Douglas Hogg (Sleaford and North Hykeham): It would greatly assist the House, and certainly my hon. and learned Friend's colleagues, if he would tell us what his opinion of the Bill would be if the Government accepted amendment No. 15, which was tabled by my right hon. and learned Friend the Member for North-East Bedfordshire (Sir N. Lyell) and which would include the reputation and livelihood tests. Although I am against the Bill, if Ministers were to accept that amendment, I would regard the Bill as greatly improved to the point that I would probably withhold my opposition to it on Third Reading. It would help if my hon. and learned Friend would tell us the view that Opposition Front-Bench spokesmen take of amendment No. 15.
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