| Criminal Justice Bill
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Vera Baird: I am thinking further along the lines helpfully suggested by my hon. Friend the Member for Bassetlaw and followed by others. We seem slightly to be neglecting the rights of victims. A white defendant will inevitably want to exercise his right to be tried by a white judge—there are only two black judges—whereas the main witness, the victim of the crime, is black and will want an open assessment to be made of his credibility to set against the defendant's, so he will want the case to be judged by a cross-section of the community and not by an upper-middle-class white person. I obviously bore the Committee by walking into the Room and talking constantly about rape, but one can see easily how the problem is at its highest in such cases. Rape cases raise thorny difficulties about credibility. For instance, if the complainant was a black person and the defendant a white person who, without any of these provisions applying, had elected to go for a non-jury trial, we can see that the mischief would be at its height. I wonder where victims rights are in all this. The Chairman: Order. To help the Committee, I have noticed that interventions are becoming longer and longer and I would remind hon. Members that interventions should be short and sweet. Simon Hughes: Victims' rights are on the list of issues that I wanted to raise. One of the things that I have argued for—I have lost the argument against lawyers, I have to say, in a different context—is that at the end of a trial but before sentencing, the victim, if he wishes to do so—or if, tragically, the victim is not alive, someone who can speak on his behalf—should be able to put a case to the court in person, just as the defendant can effectively put his case to the court. What we do now has always seemed to me a terrible imbalance. It is frustrating to be with families of victims watching a trial from the public gallery, as they feel entirely excluded from the process. Witness impact statements do not go quite far enough, so I share the hon. and learned Lady's view. On my list is the fact that we are going down a road that appears to give greater additional rights to the defendant than we do to witnesses for the prosecution and victims. In the previous debate, for reasons with which I am entirely happy, we did not have the opportunity to Column Number: 292 vote on clause 36(3) because I did not press my amendment on fair trial criteria. We are now dealing with issues of substance, and I wish to explain why the key reasons for going down that road leave me entirely unpersuaded.Jury trial is incredibly popular and well respected; it is more respected than any trial by judge will ever be. Judgment by lawyer will never be as popular as judgment by lay citizens. There are complex reasons for people opting to have judgment without jury in the lower courts; one is that they are the less serious cases. By definition, they must be, otherwise they would be in the higher courts. In many cases it is ordinary people who sit on the Bench. Of course there are district judges, but my perception is, although I do not have statistics to bear it out, that people will more readily choose the lower court over the higher court if there is a lay Bench than if there is a district judge—a full-time stipendiary. They do so because they think that the case-hardened judge is less likely to be sympathetic than representatives drawn from the local community. There will always be more than one, as the lay magistrates always sit with a minimum of two and normally with three. We should enhance what works, and jury trial works extremely well. It works because it is one of the ways in which the ordinary citizen shares in the process of justice. The hon. Member for Nottingham, North and others keep saying that we are losing contact with what ordinary people want and need. We must be careful to have maximum lay participation in the criminal justice process. There are only two ways in which we can do that: one is to have jury trial as often as possible—real people deciding cases—and the other is to have more lay magistrates. Interestingly—I do not attribute it directly to the Government—under the 18 years of Conservative government, the number of lay magistrates increased, while in the past five years it has fallen. I do not understand why, and I am very unhappy with it. I hope that it is a trend that we can reverse, as we need more lay magistrates, not fewer. Juries have a breadth of experience, as the hon. Member for Bassetlaw said, that judges simply do not have. Jurists come from 12 different walks of life—they come from different backgrounds—whereas the judiciary just ain't like that. A judge is less likely to gain such a breadth of experience the longer he spends in a narrow circle of people. Juries sometimes come to judgments that might technically in law be unexpected—the Ponting case comes to mind. The jury decided that the prosecution was nonsense, so they acquitted. The jury are a safeguard against the law's getting into a stupid position: they come to a common-sense view by argument. There is no evidence that people do not think that jury trial is a very important principle, so moving away from it has risks. Mr. Stinchcombe: I am struggling with the philosophy behind the arguments. As a Liberal, the hon. Gentleman normally believes in the freedom to choose. Surely, even if the Bill were passed Column Number: 293 unamended, Ponting would still have had the right to trial by jury and would still have been acquitted.Simon Hughes: Of course he would. Let me explain why a Liberal is arguing that a defendant should not have the choice: it will undermine the criminal justice system to have two types of justice in the higher courts. It will be perceived as a two-tier system. There will be a jury trial system, which will give one level of credibility to verdicts, and a lesser—and less credible—system in which people opt for a judge only trial. It will do a fundamental disservice to the criminal justice system. That is why it is in no one's interests and why we should not have the choice—the jury system is better. Why opt for a less good and less authoritative system when we already have a good one? I share with the hon. Member for Beaconsfield a strong belief that if a judge makes a decision, criticism of judges will increase. Judges are already criticised for the sentences that they impose, but this will open them to criticism for their decisions. Judges who become known for acquitting often will gain reputations that are unhelpful in that regard and those whose verdicts are decided on the facts and are overturned on appeal will be undermined in a way in which they are not undermined if there is only a variation in the sentence. The situation is different from that in civil cases, in which matters of negligence or suchlike are decided. This is about whether somebody is guilty or innocent. If the Court of Appeal says, as it will do periodically, that a judge got it wrong, the criminal justice system will be seriously unsettled. Some judges come to their jobs having been prosecutors. Inevitably, some will arrive having only ever done prosecutions, and others having only ever done defence work. Judges come with reputations that juries do not have. However much they try, they will not be able to overcome the fact that they have been known as the hammer of the Bailey or whatever, because that will be what they have done for 20 years; a jury is not like that. We know that judges are appointed to conduct particular, serious cases—sometimes they are senior judges, sometimes High Court judges. If the decision as to guilt or innocence is taken by a judge, there might be a suspicion that a particular judge has been chosen for a particular case to get a particular verdict. That cannot be helpful. Mr. Mark Simmonds (Boston and Skegness): Has the hon. Gentleman thought through the point that there might be a perception in the public mind that the separation of the powers between the executive and the judiciary might be undermined for that very reason? Simon Hughes: That is right. The fact that judges are appointed by the state, and the Lord Chancellor is a member of the Cabinet, so it is a party political appointment—some of us argue that that should not be the case—muddies the waters. It is important to keep the law and order process, both police and courts, separate from any perception of politics, so I share the hon. Gentleman's concern. Stephen Hesford: Can the hon. Gentleman name one High Court judge, currently sitting, who he thinks would fall into the trap that he has described? Column Number: 294 Simon Hughes: Even if I could, I will not, because that would be extremely unfair. There have been judges with reputations for being exceptionally tough. I remember having given evidence of character on behalf of constituents at one of my local Crown courts, where the fact that it has been judge X rather than judge Y has been highly determinative. People used to make choices according to who was the resident judge and who was on duty on a particular day. While I am not going to name names, I can think clearly of judges known to be pro-prosecution and tough, and of others who have a reputation for being in favour of the defendant. If they are considering a sentencing matter, that is one thing, but if such a person, alone, is to make a decision, we are into a different ball game. There are cases in which the defendant and others might want to make inquiries about the background of a judge before they made a decision. That will open up the prospect of judges' personal and professional lives, and their financial dealings, having to be in the public domain. That is not good for them and it is not good for the system. I shall cite one or two more cases. Imagine that the defendant was a former senior civil servant or a former or current Member of Parliament, or a former judge or senior public official, who sought trial by judge alone. If the judge acceded to that request and the trial resulted in an acquittal, that could be perceived as the establishment looking after its own. It is a very dangerous route to take and would lead to a large number of appeals. We should remember the experience in Northern Ireland. Of course, the context is different, and we understand why the Diplock courts came into being, but they caused real antagonism in the community. In those circumstances, trial by judge alone was necessary for security reasons, but they have never commanded the same public confidence as jury trials. No one ever wanted that system to continue and people have always been struggling to get back to a system of trial by jury. As the hon. Member for North Down will know from her experience both before and after she came to the House, the confidence of the whole community, across the denominational faith divides, lies in trial by jury. The imbalance in the interests of victims and defendants should properly be taken into account. Although, in a simplistic sense, it might be fair to give the defendant the right to appeal, we know in which sort of cases defendants will choose trial by judge alone. They will be high-profile cases, in which jury trial would be embarrassing, so they will be cases in which judges will be put, most spectacularly, in the dock of public opinion, because they will be sex offences and the like. I note that in other jurisdictions, such as New Zealand and Australia, where the law has been changed to allow the same choice, the law also includes qualifications of a type that we have not discussed. The most serious cases—those for offences with a higher tariff, punishable by a certain number of years' imprisonment—do not qualify for the choice. I would not buy that anyway, but I urge colleagues to be extremely cautious about moving to a system that Column Number: 295 sounds as if it will deal with cases more efficiently, shorten some trials and be popular with some defendants, but will in fact produce a two-tier justice system, in which good decisions are thought to be made by juries and decisions that are much more readily questioned are made by a judge alone. However competent judges are, such a process is not fair to them. More importantly, it will undermine the whole system. Lay participation in the justice system is central, and not something that defendants would be wise to alter or that they should be given the opportunity to alter, especially in the higher courts.
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| ©Parliamentary copyright 2003 | Prepared 14 January 2003 |
