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Lord Williams of Mostyn: The noble Lord is absolutely right on his first proposition. I simply say, as I did in reading out Mr. O'Brien's answer: when parliamentary time allows. In a sense I am not in a position to judge that. We have just completed the seventh day in Committee on the House of Lords Bill. This is an important and self-contained reform. Giving a hostage to fortune, it should not take too long in this House.
Lord Simon of Glaisdale: My Lords, this is a very important constitutional matter. Will the appeal be by way of re-hearing, as it was to the old Court of Session, or will it be, as the noble Lord, Lord Cope, suggested, a review of discretion, which will be interfered with only if it is plainly wrong?
Lord Williams of Mostyn: My Lords, there are two types of appeal to which I have referred. Appeal
against conviction is by way of re-hearing. Our minds are working on the precise details of the Bill, which I stress are a long way away. I believe that we need to give very careful attention to the point: is this a review of the merits or simply a review of the exercise of discretion? Whichever it turns out to be, it does not seem to me to be an exercise that need take a qualified judge very long.
Lord Elton: My Lords, as one who moved an amendment to bring in this change in regard to a rather narrow range of offences--namely, the handling of goods with a value of under £100--almost exactly nine years ago, I cannot object to the proposal as strongly, or indeed at all, as my noble friend has from the Front Bench.
I endorse the Minister's remarks about the effects on the prison system, which is what originally drew my interest. There is a very low acquittal rate among those who elect for jury trial. The waiting time in remand wings is pretty lengthy, and that time counts against the time of the sentence when awarded. Is it not therefore the case that there is a strong motivation to elect for trial by jury because a proportion, perhaps a substantial proportion, of the time served will be served with all the privileges that go with an unconvicted prisoner? Incidentally, there is a very much heavier burden per prisoner on prison officers than there is for sentence prisoners who do not have those privileges. Will not the consequence be a release of Prison Service resources to the proper care of sentence prisoners and the proper rehabilitation, aided by greater time out of cell? I ask all these questions in order to bring to the notice of my noble friend and others who have objected in the past to this proposal that there are considerable benefits to be gained in the operation, as well as the cost, of the Prison Service and in its small, but valuable, attempts to rehabilitate prisoners.
Lord Williams of Mostyn: My Lords, I agree with a significant part of the noble Lord's remarks; namely, that the Prison Service ought fundamentally to be devoted to the tasks that he identified. If the noble Lord had asked me that question 20 years ago, I would have tended to agree that there was the inducement for people to stay on remand because they had a more agreeable life than they would post-conviction. Alas, my experience these days is that for many remand prisoners, not all, life in prison is a good deal less attractive than it is for those who have been convicted, one of the points made by the noble Lord being the time spent out of cell. There is also positive fruitful activity and something by way of rehabilitation. It may well be true that to sit and languish, idle, in the remand system may be attractive to some. If it is, that is a very good reason for not allowing them to languish in the remand system. It is in my opinion, and that of many governors and members of the Prison Officers' Association, a distortion of the regime that we ought to be providing.
I apologise to the noble Lord, Lord Cope, for not dealing with the specific point regarding corpus juris. This is not related in any way to the proposals--
I underline that word--for corpus juris, which essentially deal with fraud in the context of the European Union.
Lord Ackner: My Lords, I am in no way briefed by the Lord Chief Justice, but I am bound to say that if I was I would be very irritated at the Government's picking and choosing when to use the Lord Chief Justice. At considerable cost to himself by way of time, the Lord Chief Justice attended this House on two or three occasions recently to deal with the subject of vulnerable witnesses. Having spelt out guidelines in the Court of Appeal to stop any repetition of the abuse of cross-examination of complainants in rape cases, and having supported strongly the proposal to delete from the Bill the embargo placed by the Government on cross-examination, he was ignored. The same applied in the same Bill to questions that could be asked of the complainant. He put forward the view that this was quite wrong; it was an undesirable interference with the discretion of the judge. He was ignored. But now he is produced because he happens to say what the Government wish. That is all I say on that point.
I should like to inquire about the costs which will be saved. If it is entirely a re-hearing as to whether or not the trial should take place before the justices or in the Crown Court, given that it is a re-hearing against any conviction which means a new trial--not the ordinary situation of an appeal--will there be any saving? I do not know what assumption the Government have made about the frequency of appeals against conviction to the Crown Court. I would have thought that, almost inevitably, first offenders, who now normally opt for the Crown Court, would appeal to that court if convicted. I do not know to what extent this has been considered.
As the Minister well knows, about 20 years ago an interdepartmental committee under the chairmanship of the right honourable Lord Justice James considered this very question. In paragraph 61 of its report it said:
- "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 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."
- "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".
Lord Williams of Mostyn: My Lords, I am well familiar with the report produced by the committee under
the chairmanship of Lord Justice James. I remember the fairly heated discussion at the time about his recommendations. My recollection, which may be wrong, is that in certain cases of theft he wanted the automatic right to jury trial removed altogether. There was a good deal of public disquiet, if I remember rightly. We do not suggest that in cases of theft the right should be taken away altogether but that the magistrates will hear the propositions put by the Crown in the form of the Crown Prosecution Service and representations made by or on behalf of the defendant and come to a conclusion. We then build in the safeguard of a right of appeal to the Crown Court judge on venue. I do not believe that, on whatever basis the right of appeal in the Crown Court is conducted, it needs to be a very long exercise; it is a perfectly straightforward, simple one.Things are not set in stone. Your Lordships will remember the introduction of the breathalyser provisions and the right to trial by jury. I remember that with perfect satisfaction and happiness because it kept many of us going in south and west Wales for many years running completely bogus defences--I can say this now--about whether the policeman was wearing his cap and, if not, whether it constituted full uniform. Eventually, the right to elect trial in breathalyser cases was wholly removed and transferred to the magistracy. One cannot set these matters in stone; one must take a sensible balance and build in judicial safeguards.
I do not believe it is fair to say that the Lord Chief Justice has been abused. I went to a good deal of trouble in your Lordships' House to explain why we had not ignored him but had come to a different conclusion. Am I not reasonably entitled by way of help and accurate background to point out to noble Lords who say, perfectly properly, that so and so is against it that there are others who support it, not least the Lord Chief Justice?
Viscount Colville of Culross: My Lords, the noble Lord, Lord Cope, suggested that when it came to the appeal on venue, not against conviction and sentence, the Crown Court judge might simply follow the line taken by the magistrates. Is the Minister aware of any statistics available now, or by the time the legislation is introduced, to indicate the results of what I believe to be an analogous situation? Recently, a situation was introduced whereby, against set criteria under the Bail Act, there could be an appeal to the Crown Court against the grant of bail by magistrates. The Crown Court then has to use the set down criteria in order to decide whether or not to uphold the magistrates on the matter. That seems to me an entirely similar exercise. If, by the time we reach legislation, there is any indication about how satisfactory that exercise of appellate jurisdiction has been, it may be helpful to all concerned.
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