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Sir Nicholas Lyell (North-East Bedfordshire): I rise to commend amendment No. 15. First, however, I should make it clear that I regard the Bill as fundamentally unsound and I do not believe that the requests for a bargain made by Home Secretary and the Minister of State are appropriate. It is the duty of the Opposition to oppose and then to try to improve a Bill if they can. The Bill is a bad one, but it would be less bad if my amendment were made.
Amendment No. 15 would ensure that, in deciding where trial shall take place, the court shall be entitled to take into account all the circumstances, both of the
offence and of the accused. The Lord Chief Justice--who supported the first Bill, which I did not--recommended that provision, and the Home Secretary knew that when he introduced the current Bill; regrettably, however, the right hon. Gentleman left the impression that the Lord Chief Justice supported the Bill as it stood. The Bill would be a better Bill if it were amended as I propose.I tabled an amendment similar to amendment No. 19 in Committee, and I should like to speak in support of it now. When we are considering jury trial, it is not only the rights of an accused to be tried by jury that should be taken into account. There are the rights also of the citizens of this country as a whole, expressed through each little parliament which a jury constitutes, to set the standards of criminal justice. It is one of the great linchpins of our democracy.
This is nothing theoretical. I can say as a former Attorney-General that when we--the Director of Public Prosecutions, the director of the Serious Fraud Office, or other senior prosecutors--came to discuss cases and questions of prosecution, one of the matters that was always considered was whether a jury would be likely to convict in the circumstances of the case. That is a salutary consideration for those who have the honour to govern the country from time to time. It is not the Government who decide the criminal prosecution system. The Attorney-General and the Law Officers as a whole are Her Majesty's Law Officers and they stand independently in a quasi-judicial position. It is salutary that they should consider the views of ordinary people.
Mr. Grieve: It is all the more remarkable that little parliaments exist to deal with matters that the Government consider so trivial that they do not wish a person to have that protection.
Sir Nicholas Lyell: That is why the Government are deeply mistaken in their view. As my hon. Friend says, one of the great benefits of our system of justice is that it is largely consensual. One of the reasons for that is the huge spectrum of either-way cases where people have a right at present to choose trial by jury. If they want trial by jury, they choose it. If they do not, they accept the system. Either way, and even if they plead guilty later, they are confident and comfortable with the system of justice which we in England and Wales are proud to have and regard as second to none.
Mr. Hogg: On amendment No. 19, does my right hon. and learned Friend agree that there are cases where the prosecution might be deemed oppressive or the procedures adopted by the prosecution authorities might be deemed unreasonable? In such cases, the jury might refuse to convict. The refusal of the jury is a proper constraint on the ability of the prosecution to prosecute, or on the ability of the police to prosecute in the way that they did.
Sir Nicholas Lyell: I agree with my right hon. and learned Friend. It is a protection against tyranny; it would be a fundamental mistake to seek to remove it.
Mr. Marshall-Andrews: I say somewhat unwillingly that I cannot support the amendments, which would effectively reintroduce the livelihood and reputation clause. As much of the debate has been spent by the
occupants of the Government Front Bench telling those of us who fought against the clause, "There you are, it is all your fault", perhaps I might go into a little history, which will take not very long.Jury trial has long been in the sights of a number of people, not a million miles away from the Treasury, who believe that people going to it who are not charged with terribly serious offences are getting Rolls-Royce treatment which they do not deserve. It has long been the idea that that treatment should be taken away from them. They hit what appeared to be the immovable rock that, for some people with great reputations, livelihoods and jobs--not necessarily posh people or rich people, but people who have fought against the system and managed against all the odds to make themselves respectable and to have jobs--the loss of livelihood is far more important than it is for many others who are charged with much more serious crimes.
Thus there was a problem. It was overcome by the Runciman commission, which introduced the reputation solution. Thereafter, it was enthusiastically endorsed by a number of others. I quote:
- There will be safeguards, including a requirement on magistrates to consider the effect of conviction on a defendant's reputation and livelihood when considering the mode of trial.
What is partial justice? Is it worse than justice given to a few? The Government's solution was to take justice away from everybody. Nobody could have it. That was the result. Now, reputation cannot be taken into account at all. The crass absurdity of that position is emphasised time and again by anybody who knows anything about the criminal justice system. It will give rise to massive injustice and cause huge delay.
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The point raised by my hon. Friend the Member for Clwyd, West (Mr. Thomas) was absolutely right. Shoplifting offenders are now out of the system. They will not be able to have jury trial at all.
The position is worse than that. The example was given of Mr. Peter Hain, as he then was, before he became Minister of State. I can tell the House that his chances of getting a jury trial under the Bill would be very small, if not non-existent. Moreover, if he had been tried in front of a stipendiary magistrate in the south-western magistrates court, in the atmosphere prevailing when the anti- apartheid movement was active, his chances of acquittal would have been zero.
If that is what those on the Front Bench want to impose on people in this country, I am extremely surprised. It comes from a Government who we always believed would uphold the traditions of civil liberty.
Mr. David Taylor (North-West Leicestershire): I thank my hon. and learned Friend for giving way. No doubt he
would agree that reputation and livelihood can be central issues, but is it not the case that many offences are at present summary only, and that the charge could damage the reputation and livelihood of the accused? I cite as an example indecent exposure by a minister of religion.
Mr. Marshall-Andrews: That is right, and a line must be drawn somewhere. That line should be very low; it is probably drawn too high at present. However, it should not be extended to offences of dishonesty, which can ruin and destroy reputations and are much more prevalent than the type of offences cited by my hon. Friend.
Mr. Hogg: I am grateful to the hon. and learned Gentleman. He is opposing amendment No. 15 on the ground that it induces two classes of justice. I think that he would agree that, when it comes to sentencing, there are by his own criteria already two classes of justice, because the court, when determining whether to send to the Crown court for sentence, will necessarily have regard to the antecedents of the accused appearing before that court.
Mr. Marshall-Andrews: That is because the magistrates' powers are limited. It is not merely a question of their wanting to go further on a sliding scale. If they want to impose a sentence of more than six or 12 months, or whatever the limit is, they must commit. Before that, under the present system, they would not know about the antecedents. The explanation is perfectly reasonable.
I maintain my opposition, which is based on the partiality of justice. The Bill is rotten at its core. Everybody who practises in the criminal justice system, outside the Magistrates Association and the Police Federation, knows it in his heart. I implore the Government, while there is still time, to rethink the legislation.
Mr. Simon Hughes: I add my support, along the lines of the argument of the hon. and learned Member for Medway (Mr. Marshall-Andrews). The amendments in the present group do not solve the difficulties of the Bill. They do not make a bad Bill a good Bill.
There is one amendment in the group that has the joint support of those on the Conservative Front Bench and my hon. Friends and me. It seeks to make sure that there is a consideration of the wider public interest. That was well expressed, if I may say so, by the former Attorney- General. The central argument for jury trial is that it is the people, not the establishment, who make the decision, whereas it is, by definition, somebody on behalf of the state who makes the decision to prosecute, so the functions must be separated. Therefore, the wider interest needs to be represented.
According to the Government's figures, we are talking about never more than 5 per cent. of the cases in the past five years ending up in the Crown court, and sometimes less.
The Government put in the reputation clause, which was rightly rejected in the other place, principally because it created a two-tier system of justice. An obvious example is a that of a head teacher who would be thought to be at greater risk of damage to his or her reputation than an unemployed person entering adulthood. That is
clearly discriminatory, and, on that basis, the Lords rightly threw it out. The Government were then completely stuck about what to do.The revealing correspondence between the Home Secretary and the former Lord Chief Justice, recently retired, shows that the Government do not have a position of principle. The Government seek to take away the option of jury trial for everyone who has that option but for no other principle than that there is some vague benefit, arguably, that the resulting justice will be more efficient and cost less. There is no principle there.
The strongest argument in practice for not going into the prehistory is that, if antecedents were allowed--the circumstances of the accused--then, by definition, the person with a record would be less likely to be looked on favourably by the court. The court is more likely to think that it can try the case. However, there is a paradox, which has been well put by Justice, which says:
- The controversial provision for the court to consider reputation and livelihood, which discriminated in favour of those with apparently good character has been removed; but this is likely to lead to more cases being retained by magistrates. It should be also noted that the new criteria are likely to lead to a new, and diametrically opposite, discrimination. Sentences are likely to be higher in respect of people with previous criminal convictions, who may therefore be outside the court's sentencing powers.
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