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Lord Thomas of Gresford: My Lords, I too am grateful to the noble and learned Lord the Lord Chancellor for his introduction to this review. Like the noble Lord, Lord McIntosh of Haringey, I welcome the reference in the conclusion of the Statement to the Government seeking consultation and wishing to listen to the views of those who work in the criminal justice system. I also share the cynicism displayed by the noble Lord, Lord McIntosh, as to the reasons why the Statement is made at this particular point in the Parliament. I refer to what the noble Lord said a moment ago. If it should ever fall to the noble Lord to implement these proposals, or anything like them, we shall be as critical of his proposals as we are of these.
The beginning of the Statement refers to the fall in the Crown Court waiting list. That is true. I noted on Friday last in Birmingham Crown Court that some five courts out of 12 were empty. I also noted the long faces of junior counsel who were standing around at the time. But that has been achieved because of the plea and directions hearings implemented over a number of months which have proved successful. It is easier to get into the Crown Court today to have a case heard than it is to get into the magistrates' court and have the matter completed.
Some parts of the report are much to be welcomed. I welcome the concept of CPS staff being involved with the police at a very early stage. It is enormously helpful to the police to have the guidance and assistance of the
CPS in the preparation of the case. If that means that CPS staff work in a police station, so be it. I am sure that the CPS will not lose its independence when it does so.However, the proposal that employed solicitors in the CPS should be granted anything more than rights of audience for plea and directions hearings in the Crown Court would not be a useful addition to the powers of the CPS. It is important that we maintain an independent Bar to prosecute and to defend. It is important and desirable that those who prosecute should also have experience of defending. If the day comes that the prosecution is represented by professional prosecutors who do nothing other than prosecute and people are defended by people who do nothing more than defend, then the quality of criminal justice in this country will suffer.
The concept that the duty solicitor should be accessible to give instant and early advice, and that the person who appears in the magistrates' court should have the benefit of that service, is to be welcomed. One hopes that the necessary funds will be put into the system to pay for the additional work that will be involved.
With regard to pre-trial reviews and administrative powers being given to clerks to the justices, I consider that that is potentially an excellent reform, but it needs to be looked at with considerable care because in certain magistrates' courts half the morning can be taken up by adjournments. If that is replaced by hours and hours spent in unnecessary pre-trial reviews which are not conducted with the rigour that is required, then the system will suffer. As I say, today the delays are more in the magistrates' court than in the Crown Court.
I welcome the recommendations in relation to the youth court. It would be a considerable reform that if cautions are introduced for young offenders it should be possible to attach conditions such as compensation and reparation to the victims. A caution is not enough. If compensation can be given as well, that is highly desirable.
Where I look with great askance, however, is at the proposal to restrict, because that is what it amounts to, the right to trial by jury. The Statement says that 20 per cent. of those tried in the Crown Court insist on being tried there. It would be better phrasing to say that they exercised their right. It is an important part of the freedom of the people of this country to be tried in the Crown Court. The circumstances in which people seek trial in the Crown Court vary enormously. It is not appropriate that magistrates should make the decision as to which way the sheep go and which way the goats go. It is a person's right to have a trial by jury. It is that right which he, and no one else, should exercise. I do not believe that it leads to abuse on a large scale; it leads these days to the swift dispatch of cases.
The matter is in the hands of the professional judges of the Crown Court who ensure that trials are brought on speedily--within weeks, as they are at present. I think that I have said enough to indicate that we consider that the Statement contains many good things, but we look at any suggestion that the right to trial by jury should be restricted with considerable reserve.
The Lord Chancellor: My Lords, I am grateful to the noble Lords, Lord McIntosh of Haringey and Lord Thomas of Gresford, for what they said about the report. The report was commissioned, as I said, in the autumn of last year. For my part--my colleagues share this point of view--I believe it right that both Houses of Parliament should have the report put before them at the earliest opportunity. It would not be right for the Government to take a concluded view on these matters at this stage; rather we should set out the proposals, indicate the basis upon which they have been made, and their possible effect, and then invite consultation on them. That is what we are seeking to do.
I do not know that I should go into the detail much more at present. I know that proposals have been made by the Labour Party to deal with some of these matters. There are concerns which have been expressed from time to time. This is the reviewer's work, as a result of the task that he was set.
There are important distinctions between what the reviewer has proposed and what is proposed in the document to which the noble Lord, Lord McIntosh of Haringey, referred; for example, about the lay magistrates' jurisdiction to try cases in the youth court and other such differences. This is an important document upon which it is right that we should make full disclosure as soon as possible to your Lordships and to the other place, and then consult upon it.
A good deal has been said, in particular by the noble Lords, Lord McIntosh of Haringey and Lord Thomas of Gresford, about the present right in either-way cases, which I think was introduced when such a class of case was introduced for the first time in 1855, or so, to elect for trial at the Crown Court.
The reviewer's proposal is that the decision in that connection should be made by the magistrates with the possibility, as we say in the Statement--I do not believe that the reviewer raises this possibility--of an appeal. The noble Lord, Lord Thomas of Gresford, said that that should not be committed to the magistrates. That is an important question, but the magistrates do have the responsibility of deciding guilt or innocence in a large number of important cases. Those who are qualified to decide guilt or innocence would, I think, have a claim at least to be able to distinguish a good case for going to the Crown Court from a case that was not a good one for going to the Crown Court.
The noble Lord, Lord McIntosh of Haringey, referred to the Government's response to the Royal Commission on Criminal Justice which made a proposal similar to the one the reviewer has proposed. This report of course followed from that. It is right for the Government to be prepared to reconsider those matters in the light of this further report. As has been said, this is an important report, which is well written. I am glad to accept that compliment on behalf of the reviewer. It is one with which I happen to agree. It is clear and well written. It forms a good basis for consultation upon these matters, all of which are vitally important in the desire which we all share, I think, to make our system of criminal justice as good as we possibly can make it, not only in achieving justice but in achieving justice with reasonable expedition.
4 p.m.
Lord Ackner: My Lords, when this House is asked to consider radical proposals, should it not be informed whether there is significant material in existence which points the other way, why the Government have sought to go contrary to that material and whether it is based on research, investigation or what?
Without repeating it, we have raised the point on the Crime (Sentences) Bill that the Government White Paper of 1990 was totally inconsistent with the philosophy put forward in support of the Bill. We have drawn attention to how 20 years ago the Home Office committee under Lord Butler produced proposals for reviewable sentences and turned down the suggestion of life sentences.
There has been no mention in the context of the abolition of the right of election--I am dealing only with that--of a report of the interdepartmental committee under the right honourable Lord Justice James, again some 20-odd years ago. It relates to the distribution of criminal business between the Crown Court and the magistrates' court and it dealt in considerable depth with the question with which we are dealing. I refer only to one observation which appears at the end of paragraph 61. It states:
- "The existing right to elect trial by jury is so long established in our criminal justice system and valued so highly that its total abrogation requires very compelling reasons. We doubt whether such a radical change would be sufficiently acceptable to public and professional opinion to enable it to be implemented. We would go further. In our view there is a real danger that the total removal of the present right of election would undermine the trust and support which the criminal justice system at present commands among the general public. However that may be, on the evidence submitted to us we have reached the firm conclusion that the defendant's present right of election should not be replaced by a decision either by the prosecution or by the court".
The report deals in great detail with why it would be wrong for the court to make the decision. It opted for what the Royal Commission referred to in the course of its consideration of the subject; namely, altering the categories of cases which might feature in the either-way lists. Paragraph 16 of the Royal Commission's report states:
- "One way of removing cases from the ambit of the Crown Court would be to reclassify the less serious offences as triable summarily only. We have not regarded the task of identifying the offences concerned as falling within our remit".
There is a footnote which states:
- "Allowing relatively minor offences to be tried by magistrates would have a considerable impact on the workflow of the Crown Court. The major burden is caused by minor offences of theft (including shoplifting) and handling stolen goods".
Thus it goes on. I therefore ask that particular consideration should be given to re-evaluating that very detailed report of the interdepartmental committee presided over by Lord Justice James.
I wish to raise only one other matter on which I should like my noble and learned friend to comment. The noble Lord, Lord Thomas of Gresford, referred to rights of audience and expressed his anxiety about those rights being given to the Crown Prosecution Service in trials. I understand that the Law Society, under the Courts and
Legal Services Act, put in an application for such rights to be achieved by employed solicitors. Of course, that will rub off on to the Crown Prosecution Service.
Approximately 18 months ago, the Lord Chancellor's Advisory Committee delivered its decision, which was adverse to granting those increased rights of audience on the ground that it would be against the public interest. I have asked in Written Questions, "When is the Lord Chancellor going to decide one way or another whether he accepts that report?". If he accepts the report, that is the end of the matter. If he does not accept the report, it will then go before the designated judges. It may be that I am out of date and that that has already occurred, but since rights of audience have been referred to by the noble Lord, Lord Thomas, I thought that I ought to raise the matter.
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