| Criminal Justice Bill
|
|
Mr. Malins: I shall be brief. The question of the stage at which the defendant should make an application for trial by judge alone has been raised. Can that be allowed on the first day of the trial, which would result in huge expense? I have had an idea that that might be got round by an instruction to magistrates and district judges that upon any committal or transfer of a case from the magistrates court to the Crown court, a form of words must be used by the magistrate or district judge to the effect that if the defendant wishes to opt for trial by judge alone, such application must be made at the plea and directions hearing, and no later; otherwise, it will not be entertained. That may help the Minister. Mr. Grieve: I am grateful to the Minister for his detailed response to the various amendments. At this stage of our consideration of the clause, the key issue that has emerged may be the question whether that right should be unfettered or fettered. On one hand, the Select Committee broadly welcomed the idea that people should be able to apply for and get trial by judge alone because it is their right. It said nothing to suggest that that right was to Column Number: 284 be fettered, except when considering any co-defendant's rights. On the other hand, from the Minister and the Government we have a much more complicated clause, which gives the right but sets out circumstances in which that right may be denied. That almost causes me more concern than the principle of the clause itself. A complex and hybrid system will be set up that will question and challenge the right to a judge-only trial. The defendant, as is his entitlement under our law, should be able to choose a judge-alone trial if his co-defendant does not object. Instead, there will be constant bickering and press comment on the circumstances in which a prosecutor—because that is the person who will act on behalf of the state—will argue that the right should be denied for public policy reasons. That brings into clear and immediate conflict the individual's right to choose against the public's right to perceive that justice should be done.Without betraying too many secrets, I discussed the matter with Lord Falconer when I discovered that the Bill would include exceptions. His reputation as a civil lawyer has been savaged. I explained to him that, in a funny way, although I had anxieties about giving this right in the first place I found that to include exceptions made the whole matter worse. The expression that he used, which I think I can repeat in Committee if not in the Chamber, was that he found my argument ''anal''. I disagree. My argument may be anal, but I shall continue to put forward such arguments. Simon Hughes: Are you sure that it was not ''banal''? Mr. Malins: Able. Mr. Grieve: It was not ''able''. It was not an able argument. All that I can say to the Minister is that the issue is really important. With your leave, Mr. Cran, I wish the Committee to have an opportunity to decide whether the exceptions, which give the state the power to deny the right to choose that clause 36 gives, should be included. Other amendments would be needed, but amendment No. 232 would be the significant amendment to enable that to happen. Vera Baird: My point arises from that which the hon. Member for Woking has just made about the timing for the selection. If the right cannot be withdrawn, except within the terms of subsections (6), (7) and (8), whatever rules of court say, would it be possible to deny the exercise of that right up until the last minute? I suspect that it would not be. Rules of court cannot buy the exercise of the section in the statute. Consequently, one will get what the hon. Member for Beaconsfield foreshadowed. Someone who knows the bench will wait until the judge is appointed before he decides whether he wants a judge-only trial. I would do exactly that in the same situation, although it will prove unavoidable and expensive. Mr. Grieve: I am grateful to the hon. and learned Lady. That is exactly what would happen. Indeed, if I was taking a client through the criminal justice process and wished to protect his interests as much as possible, that is exactly what I would do to keep the margin for Column Number: 285 manoeuvre as open as possible. It would be my duty to do so. When appearing before certain judges, I would say, ''We have a nice, rather weak-minded judge''—Mr. Malins: Like me. Mr. Grieve: I would not dream of saying that about my hon. Friend. I would say either, ''We have a rather weak-minded judge'' or ''We have someone quite horrible, and you had better opt for jury trial.'' I must tell the hon. and learned Lady that that goes to the principle of the clause. However, if I had a hierarchy of preference it would be that if the Government really wished to embark on that course of action, the exceptions, especially the obvious one of the co-defendant's rights, should not be included. The Government should have the courage of their convictions. I shall therefore seek to press amendment No. 232 to a Division, because it is an improvement. However, I reserve my position, because important issues need to be raised on clause stand part, and I shall seek to divide the Committee on that too. Ian Lucas: Could the hon. Gentleman help me with one point? How would he distinguish between the prosecution's role in denying jury trial to a defendant in mode of trial proceedings by making submissions to the court, and the present circumstance? Is there a major difference of principle between those two scenarios? Mr. Grieve: As matters stand, the defendant in an either-way offence has the unfettered right to go for jury trial. I always assumed that the background principle for that right was that if the defendant wished to contest the issue it was a preferable course for him to adopt, although as my hon. Friend the Member for Woking said he could opt for trial before the magistrate. However, even if the prosecution argue that the matter should go for jury trial, it is still ultimately a matter for judicial discretion by the magistrates. In some circumstances, people may be happy enough to have the matter tried by the magistrates but the prosecution will say that it is serious enough to go the Crown court. It will then be up to the tribunal to decide. It has always been thought that the option of going for trial at the Crown court has given the individual extra protection, so I have rarely had people complain that they have been forced against their will to go to the Crown court. In my experience, they usually want to stay in the magistrates courts so that they can plead guilty. I accept that there may be exceptions, but that has been my professional experience. That is rather different from what we find in the Bill. I do not want to take up more of the Committee's time. With your leave, Mr. Cran, I hope that we can put amendment No. 232 to a vote. Mr. Allen: The hon. Member for Beaconsfield has indicated why the public need protection—if only from the lawyers—so that a defendant would have publicly to state why he wanted a judge-only trial. A number of other hon. Members who are lawyers were honest enough to say the same—that the debate is more about Column Number: 286 their dealings with defendants than it is to do with the people for whom parliamentarians pass such legislation. Frankly, that has been a recurring theme throughout our proceedings. Unfortunately, one can almost see a number of colleagues making representations with a client at their side rather than a constituent.Having said that—I am sure that we shall get a lot more of it—my hon. Friend the Minister said that he could feel a letter coming on. I take that as an undertaking that a letter will be sent. He generously gave an undertaking that he would think further about the important points raised by all members of the Committee, and I hope that he will consider whether it is necessary to produce something on Report. I hope, too, that the hon. Member for Beaconsfield will not press his amendment to a Division. He will not get anywhere by doing that. I hope that he will try to achieve a consensus with the Government by trying to make sense of the clause for everyone. I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Amendment proposed: No. 232, in
Question put, That the amendment be made:— The Committee divided: Ayes 3, Noes 14.
Division No. 9]
AYES
NOES
Question proposed, That the clause stand part of the Bill. Mr. Grieve: The Committee, although I welcome its decision, has decisively rejected the possibility of giving the right to trial by judge alone, free of the Government's exceptions. Therefore, we now must consider the principle of the clause. I do not wish to take up the Committee's time, but two matters stick in my mind forcefully. We have a justice system that has always given the right to trial by jury in either-way offences, which are those that are more serious. Our justice system has also sent for trial by jury those offences that are regarded as serious. There are good reasons for that. Anyone who has practised in the criminal court and has seen the process involved in a Crown court trial derives reassurance from the fact that decisions taken by 12 jurors drawn from the community are difficult to impugn, provided—and this sometimes does not happen—the proper facts and evidence are placed before them. In my experience, miscarriages of justice are rarely the jurors' fault, but that of the prosecution or false Column Number: 287 witnesses, or whoever, who come along and present the jurors with an inaccurate or wrong set of facts.Trial by jury has very desirable social consequences. It is not seen as an adversarial system between the state, through its judicial representatives, and the defendant, but one in which members drawn from the community give the verdict. The matter is difficult to gainsay once it has been done. It therefore provides great reassurance in the way that the justice system operates. It can, very occasionally, lead to some curious decisions—that does not really apply in this instance—where the jury, for reasons that I often find thoroughly proper, sometimes goes against evidence, in favour of defendants. However, I have rarely seen the decision go the other way. I cannot think of a single occasion during my professional practice in which I have considered a jury to have wrongly convicted a defendant.
10.45 amTrial by jury is, therefore, an enormously important part of our national life. One only has to consider the number of people who do jury service in any year to see how important participation in the criminal justice system is in terms of maintaining confidence in justice and belief in its fairness and integrity. The clause drives a very big cart through that principle, and it does so for very muddled reasons. I find it difficult to understand the justification for doing it. What troubles me is that the people who will avail themselves of that protection will do so because it suits them, if the verdict goes against them, to say that it was the verdict of the judge on a technical matter, and to use that as a way out of their own responsibility. There is a big difference between being found guilty by an individual appointed by the state and being found guilty by a group from the community, which has considered the evidence. The message is different and the Minister clearly accepts that, going by the exceptions that the Government have included in the clause. Those exceptions are compelling in raising my anxieties and objections to the clause in its totality. I am, therefore, unconvinced. We have heard nothing about financial arguments or issues, so I take it that that is not a major consideration—
|
| |
| ©Parliamentary copyright 2003 | Prepared 14 January 2003 |
