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4 Dec 2002 : Column 962—continued

6.56 pm

Mr. Robert Marshall-Andrews (Medway): It is a pleasure to be able to welcome some limited parts of the Bill. I do not want to pick them out individually, but there is the abolition of magistrates courts' right to commit for sentence. That is long overdue and ends the

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iniquity of one court deciding on guilt and allowing another court to pass sentence. There are some parts of the Bill that are good and some that are bad, but in truth not that bad. In that I include the rules for the admission of previous convictions. It is with great trepidation that I disagree with my good and hon. Friend the Member for Hackney, South and Shoreditch (Mr. Sedgemore). If we make allowance for the deplorable drafting of clauses 84 to 92, it appears that what is postulated in the Bill is not very different from the rules that we already apply in criminal courts.

In a criminal case, it is often an enormous release to put our form in. The way in which we run a defence is often so gravely inhibited by not being able to do so that it can be a significant and positive disadvantage. To say to a jury, XYes, I've done it four times before, but I didn't do this one. I'm only here because I've done it four times before and the Old Bill picked me up," is not a bad defence, especially if there is not much else to say.

There are parts of the Bill, however, that are not just bad, but are conspicuously and dreadfully bad. The provisions that are an assault on jury trial represent the most serious infringement of fundamental liberty that has come before Parliament in recent history. They are substantially greater than the mode of trial provisions, and I shall echo what my hon.—and learned—Friend the Member for Hackney, South and Shoreditch said. There is a savage irony. When we were fighting mode of trial Bills 1 and 2 to the death, we were told repeatedly by the Home Secretary that our opposition was ill founded because they would apply only to the less serious offences in the criminal calendar. Now that the Government have been beaten to a standstill twice, they are attacking the beast from the other end. We are told that only the most serious offences in the criminal calendar will be decided by the judge. In making such provisions, I fear that the Government show a savage ignorance of the centrality and essential nature of the jury in our adversarial system. The provisions will undoubtedly bring judges into serious disrepute. In their current form they are impossible to apply in the trial process, and they will result in many cases being successfully brought in Europe. Apart from that, they are fine.

Lady Hermon (North Down): For many years, non-jury trials have taken place in the Diplock courts for serious terrorist offences. I hope that the hon. and learned Gentleman is not implying that judges have been brought into serious disrepute in Northern Ireland because of those trials?

Mr. Marshall-Andrews: No, I am not. I acknowledge immediately the special circumstances that apply in Northern Ireland. The hon. Lady will forgive me if I do not get into an argument about Diplock courts, which are a different matter.

The centrality of the jury in our system cannot be overstated. It was said recently that jury trial does not go back to Magna Carta—it has formed part of our criminal justice system since well before then. It has been suggested that it dates back to 1855. That is false and misleading. On the contrary, in 1855, people were allowed to opt for summary trial, not jury trial, and

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either-way offences were created. Jury trial, which was the only mode of trial for centuries, did not always result in acquittal. It has not been a soft option. My hon. Friend the Member for Hackney, South and Shoreditch—to whom I shall not refer again—will know, because he is named after the famous battle, that the bloody assizes in the west country were conducted by means of jury trials. Doubtless the Home Secretary would thoroughly approve of those assizes.

The great benefit of jury trial is not simply that it is fair and perceived to be fair, and that it involves the citizen in the process of justice, but that it is profoundly modern. It is one of our most ancient rights and liberties, but also the most modern. How many institutions do we seek to modernise by bringing in the ordinary citizen to participate in running them? It is our permanent aim to bring the citizen in to health, education—and, indeed, politics. Yet that has happened in the law for nearly 8,000 years. Jury trial is therefore our most modern institution. The citizen is empowered, and thereby ennobled.

Our adversarial system means that the jury is vital. We are an adversarial people. Like the court, the Chamber is an adversarial arena. That is the way we do business. The Government decree, and they are opposed—not necessarily from the Conservative Benches. Governments should be opposed. We do business in our courts in the same way. We do not have an inquisitorial system. I suspect that the judge to whom my hon. Friend the Member for Sunderland, South (Mr. Mullin) referred was really saying that we do seek the truth in our criminal justice system. In our adversarial system, the state brings its case, which it must prove. If it does not prove the case, that is the end of the matter.

How can the state bring its case in front of someone who is its agent and employee? The principle of our jury system is that the state brings its case, but must prove it in front of the citizen. To suggest that one can create an inquisitorial system by simply ripping out jury trial is the precise equivalent of claiming that one can remove the wheels from a car and thereby create a boat. The checks and balances that are implicit in an inquisitorial system are absent from the system that we operate. Judges cannot sit as judges of fact as well as of admissibility, fairness and law.

The change is unnecessary. None of us who has laboured in jury trials in serious fraud cases has the slightest doubt that juries understand perfectly well the issues involved in serious fraud. That is almost always because the question of whether serious fraud has been committed is not an issue, and the case is a therefore a whodunnit. Juries cannot be surpassed for defining who done it.

Jury tampering and nobbling are rare in our system, because it is almost impossible to corrupt an entire jury. That is the strength of the system, and the reason for having 12 people. Corrupting, bullying, bribing or intimidating 12 people is almost impossible. We have an incorruptible judiciary and we are unique in the world in being able to say that. We have the worst system in the world—except for all the others.

One of the reasons for the incorruptibility of our judges is the jury system. There is no point in attempting to bribe, bully, cajole or intimidate judges, because they

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have nothing to do with the findings of fact at the end of a trial. However, if we allow judges to sit alone, they will become the subject of bribery, bullying and intimidation. Of course, 99.9 per cent. will resist, but if one goes, the whole system that we value in this country above any other institution will be at risk. There will be strong judges, who get a reputation for permanently favouring the Crown, and weak judges, against whom the accusation will be levelled that they are buyable and bent. Before we know where we are, our whole criminal justice system will be brought into disrepute and disarray. Hon. Members must defend our system.

Of course the changes will not work. Nothing has been thought through. What happens if a judge is told that a jury has been tampered with and the prosecution places an application before him? It will be heard in secret because of the public interest immunity rules. If the judge, after hearing the application in secret, decides that there is a risk of tampering by one defendant out of, for example, 10, will all 10 lose the right to jury trial? Will we have two trials under two different systems for the same offence? The judge cannot try the case. If he does, the trial will be rendered a nullity by Europe, because the judge and the prosecution are privy to information that is not available to the defence. That applies to every application for PII in any trial.

I have reached the end of my time, and I have not yet mentioned double jeopardy. We lawyers have an odd vested interest if we are against the change to the double jeopardy rule, which will double the number of trials available for us. However, we are against it for the same reasons of liberty that I have outlined. Let me end by saying that one cannot reduce human wickedness by reducing human liberty. That has never been done in history. Totalitarian states, where liberty is completely curtailed, may reduce crime, but they do so by the immediate equation of transferring wickedness from the individual to the state.

7.8 pm

Lady Hermon (North Down): I must confess that I have lost track of the number of criminal justice measures that have come before the House in the past 10 years. I would dread being a law student who had to sit through a criminal law lecture and try to keep up to speed with what has happened. I should also hate to be a practitioner or member of a police service who was trying to keep abreast of all the criminal justice legislation.

Will the Under-Secretary confirm in his winding-up speech that that useful hard-working institution, the Law Commission for England and Wales, which has existed since 1965, has consolidation of criminal justice legislation near the top of its agenda? That would hugely benefit all of us, especially practitioners who have to apply such legislation. The Law Commission's website states:

I would therefore welcome the Under-Secretary's confirmation that codification of the criminal justice system is a top priority.

It intrigues me that criminal justice is not a devolved issue in Northern Ireland. Our Assembly is suspended at present, but criminal justice is still not a devolved issue,

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and has not been for a considerable time. It has remained here at Westminster. Will the Minister explain why the Bill does not extend to Northern Ireland—and, indeed, why the Hunting Bill that we discussed yesterday does not do so? I should perhaps put it on record that I am probably not speaking for all my colleagues when I ask for the Hunting Bill to be extended to Northern Ireland.

I am exceedingly concerned about the cost of implementing the Criminal Justice Bill. In an interview in The Times yesterday, Lord Falconer was asked what the financial costs of the Bill would be. He replied:

Fighting crime involves putting police officers on the streets of our villages, towns and cities. If even a fraction of £1.6 billion were directed towards recruiting more police officers, it would help in the fight against crime. Tinkering with our criminal justice legislation will not.

When I say Xtinkering", I am referring specifically to two aspects of the Bill that worry me considerably. The first involves double jeopardy. The Minister will be aware that schedule 4 lists 30 very serious offences which, it is proposed, should become exceptions to the double jeopardy rule. At the same time, we are considering the Extradition Bill, which is also the responsibility of the Home Secretary. I am sure that the Minister will be familiar with clause 12 of that Bill, which is headed, XRule against double jeopardy". It states:

I will not go into that subject now—

There are no exceptions to that. Will the Minister confirm that the one hand actually knows what the other hand is doing, and that either there will be 30 exceptions when it comes to extradition cases, or the double jeopardy rule will remain intact for all purposes and all reasons?

Furthermore, the 30 crimes listed in schedule 4 of the Criminal Justice Bill—including robbery, armed robbery, rape, murder and manslaughter—are all very serious. In our media-driven culture, it is inevitable that all cases involving those crimes will have been given great media attention and will be out in the public domain, particularly when the defendant has been acquitted. For the Court of Appeal to make an application for a retrial, it would have to certify that fresh evidence was both Xnew and compelling". I am extremely troubled by the definition of compelling evidence, as set out in clause 65(3)(c). The clause states that evidence is compelling if the Court of Appeal concludes that

When we couple the media attention that has been given to a high-profile case, on acquittal in the first instance, with the conclusion of the Court of Appeal that it is Xhighly probable" that the person is guilty, how in heaven's name can the Minister convince the House that the defendant can be guaranteed a fair trial?

On my second point, I am sure that the Minister will be familiar with the work of Professor Sally Lloyd-Bostock. It is a matter of regret to me that this learned academic is not a constituent of mine, but perhaps we

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can recruit her to come over to Northern Ireland. She is presently working for the university of Birmingham. Before that, she worked in the Oxford university centre for socio-legal studies. She was commissioned to carry out research for the Home Office in 1995 into the effects on magistrates and juries of the disclosure of previous convictions. In her more recent research paper, headed XThe Lord Chancellor's Department: Research 2000", Dr.—now Professor—Sally Lloyd-Bostock concluded:

Given that that learned professor is an expert in this field, it ill behoves the Government to set aside research of this quality, carried out by someone who was commissioned to carry it out by the Home Office in 1995 and, more recently, by the Lord Chancellor's Office. I ask the Minister to address the points raised in that research.

I would like to pick up a couple of points made by other hon. Members. The hon. Member for Sunderland, South (Mr. Mullin) rightly drew attention to the fact that what increases our constituents' confidence that crime is being successfully fought is the visibility of police officers on the streets. He mentioned the number of police officers on bicycles. I am not simply asking for the police to be put back on bicycles, although that would be helpful. There is no doubt that, with crime rates rising, our constituents need a sense of confidence that the Government intend to tackle crime. That involves recruiting more police officers, and the visibility of the police officers is the key.

The hon. Member for Southwark, North and Bermondsey (Simon Hughes) made the valid point that an awful lot of young people should be kept out of the court system and not put into jail, and should instead have to make restoration to the public for whatever crime they have committed. I would draw to the Minister's attention the restorative justice schemes that have now been built into Northern Ireland's criminal justice legislation. We have just had a major review, and the Justice (Northern Ireland) Act 2002 went on to the statute book in July. About one third of that important piece of legislation was dedicated to youth justice, and particularly to accredited restorative justice schemes.

Let us consider the difficulties that we have had in Northern Ireland with paramilitary violence, including the so-called punishment beatings, which, in one extreme case, involved the crucifixion of a young man. Having had his legs broken, he was nailed to a fence through both hands. We have seen appalling crimes by paramilitaries, both loyalist—I have to say that loyalists are utterly ruthless—and republican. They carry out a type of justice in their own right, in which they beat up young people for joyriding and other antisocial crimes. We have tried to deal with this by introducing restorative justice schemes. In my constituency we have an exceedingly good scheme up and running on the Kilcooley estate in Bangor. Those schemes involve the perpetrators of the crimes of vandalism, joyriding or intimidating elderly folk—I could go on and list many

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more—making reparation to the older person or other victim, and saying sorry. Those are accredited schemes, and I draw the Minister's attention to the possibility of building into future legislation, if not the Bill, restorative justice schemes, which have worked in Northern Ireland when they are accredited.

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