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Lord Shore of Stepney: Perhaps I may also say a word about what my noble friend described as the jewel in the crown of our legal system. Trial by jury is indeed just that. Because it is so, we need very powerful
arguments indeed to persuade us that we should diminish access to trial by jury to our fellow citizens. I do not say that my mind is wholly made up even now. I wish to ask a question or two of my noble and learned friend who is to reply to help me and perhaps others in the Committee to reach a decision.In our history, trial by jury has contributed enormously to securing justice for our fellow citizens. It has also been a powerful agent leading to law reform. Bad laws have been exposed by jury trial and because juries refused to convict, even against the summing up of learned judges. In the case of stealing sheep and being hanged for it, the law was changed to the great benefit of this country.
Some of the proposed changes are entirely marginal. I do not wish to be over-rigid about this but we are not including possible categories of offence which, although small in themselves, nevertheless carry heavy political weight. To make the issue more urgent and contemporary than it might otherwise be, I say this. There is a flood of legislation coming, not from this House and this Parliament, but from authorities across the Channel in Brussels that affects the rights of our citizens and in respect of which they incur penalties if the legislation is disobeyed.
An almost classic case of what I consider to be abuse of legislative power by Brussels is the compulsory change of units of measurement of goods sold by fruit and vegetable retailers and butchers. They are compelled to show and sell units in metric measures from 1st January this year. Whatever the merit of that may be, it is not a proper subject for penalty and law enforcement in this country. It seems to me that the splendid butcher who has already announced that he will contest it must be assured of the right of jury trial so that the attention of the media, Parliament and everyone can be focused on this outrage to our system of self-government in this country.
Lord Alexander of Weedon: I do not see any part of this Bill as marginal. It is not only the noble Baroness, Lady Kennedy of The Shaws, who has described it as "illiberal." No less than an editorial in the Financial Times, in measured terms, said last week:
- "Jack Straw's Bill to remove the right to a trial by jury is a thoroughly illiberal measure that should be thrown out by both Houses of Parliament".
At Second Reading, government spokesmen were keen to point out the expense and anomaly involved if someone, say, with 10 previous convictions, was charged with stealing a Mars bar or a banana from a supermarket and elected trial by jury. But my noble and learned friend Lord Mayhew of Twysden, reminded us of a different position by drawing attention to the range of quite serious charges where
the right of election exists. They include serious assaults such as grievous bodily harm, indecent assault, burglary, theft, false accounting, forgery, serious drugs offences and so forth. This Bill would represent a marked and clear interference with the right of the defendant--I emphasise the word "right"--to elect trial by jury in cases of that kind.Nor am I impressed by the suggestion that there is widespread abuse that needs to be cured when we bear in mind that the defendant elects trial by jury in rather less than 5 per cent of cases triable either way. I have looked carefully at the arguments since Second Reading. The noble and learned Lord the Attorney-General, with his typical courtesy, wrote to my noble friend Lord Cope and put forward arguments in rebuttal, he suggests, of those advanced at Second Reading. He said that there would be no change to the way in which serious cases were handled. They would be directed to the Crown Court. How do we know? There is no such mandatory requirement in the Bill. Who is to judge what is serious, and what is not, to the defendant? I would prefer the present position where it is the defendant, on advice, and not magistrates, who decides whether an issue is serious enough for him or her to undergo what is the traumatic and anxious experience of a jury trial.
Since Second Reading the Government have sought to bolster their argument in a somewhat astonishing way to which my noble friend Lord Cope drew attention in moving the amendment. They point out that those who elect Crown Court trial are three times more likely to receive a custodial sentence if convicted than those tried by magistrates.
They also point out that custodial sentences imposed by the Crown Courts are two-and-a-half times as long.
In a letter from the noble Lord, Lord Bassam of Brighton, to my noble friend Lord Windlesham on 14th January, it was stated that of the resource saving of £105 million--which, it seems, is estimated with some precision--to flow from the Bill, no less than £66 million will apparently be savings in prison costs. That is because it is said that magistrates will pass less severe sentences than the Crown Courts.
If that disparity in sentencing between the magistrates' courts and the Crown Courts exists, the matter should be addressed, but in quite another way than by taking away the fundamental right of a defendant to elect trial by jury. The Government, in consultation with the judiciary, should analyse whether this, at first sight, concerning disparity is in any way justifiable and, if not, reduce apparent over-sentencing in the Crown Courts. Alternatively, perhaps with the help of their spin doctors, they could advertise the extent of the disparity as a deterrent to defendants exercising their right to trial by jury.
I return to the fundamental point. The Home Secretary is widely respected by many of us for his part, together with the noble and learned Lord the Lord Chancellor, in introducing to this country the Human Rights Act. He does himself no service by the way he
argues the Bill. He argues that the opposition comes from lawyers hunting for their fees and from those apparently living in north London and pejoratively labelled "liberal."My noble friend Lord Cope cited Cicero's axiom as to how one conducted one's case when one had no defence. The Home Secretary is a barrister. When he and I were young and at the Bar, it was not uncommon to be told, "If you have no case, have a dip at your opponent." I suggest that that is what the Home Secretary is doing in this case and that the arguments in support of the Bill are unconvincing. I agree entirely with the noble Baroness, Lady Mallalieu, that it is socially and racially divisive. I agree entirely that the right place for it to be considered is along with criminal justice issues in a wide-ranging study being conducted by Lord Justice Auld. In the meantime, as the Financial Times says and as has been said across this House, this is a thoroughly illiberal measure which should be put out of its misery today.
5 p.m.
Viscount Tenby: I did not speak at Second Reading, bowing to the, alas, increasingly rarely observed convention in this House that one does not speak in a debate if one cannot attend for the duration of the proceedings. Accordingly, with the exception of two noble Lords from the Government Benches and, of course, the noble and learned Lord the Attorney-General, there was no counter at that time to the attacks on the Bill. Fortunately, today, with the distinguished intervention of the noble and learned Lord the Lord Chief Justice, matters have been redressed slightly. There is no way that I could mistake him for the late Lord Goddard. However, from where I stand, he bears a remarkable resemblance to the US Seventh Cavalry!
A good deal of heat was generated at Second Reading, sometimes, one might think on reading Hansard, without the common sense and fairness which characterises debates in this House. I have to say that some of the speeches also displayed a certain lack of perception about what goes on in the lower courts. I do not doubt for one minute the genuine view of those, particularly on the Liberal Democrat Benches, who have been consistent in their opposition to this measure since it was first mooted by a Conservative government and for whom this is a step too far. However, some of the arguments advanced are scarcely sustainable. And since this is a wrecking amendment, which, if successful, may prevent the Bill being discussed in the other place--not a very democratic concept, one might think--I feel that it is only right to put another point of view.
Here, I must declare an interest, both as a magistrate, now on the supplementary list, and as a member of the Magistrates' Association, perhaps number 17,000. In other words, as was said at Second Reading, I would formerly have represented the landowning, mine-owning, brewery-owning class. How things have changed today. Now I can speak for the white, middle-aged, middle-class tendency. Of course, our participation in this debate, which is
perhaps permissible on the grounds that we deal with well over 90 per cent of criminal cases tried in this country, seems to have disturbed some noble Lords at Second Reading. For example, the noble Lord, Lord Thomas of Gresford--I hope that he will not mind my mentioning this; we have worked together in the past, and happily so--said in that debate:
- "If the Magistrates' Association wants to get involved in this argument on the side of the promoters of the Bill, I believe that the spotlight should be turned on that system ... It is ... an enclosed system with which magistrates on the whole are very pleased. But it is not the envy of the world".--[Official Report, 2/12/99; col. 932.]
However, I feel that I should correct for the record the noble Lord's assertion, at col. 933:
- "Advice is given in retirement and not in open court".
The noble Lord will probably now recall a practice direction from the Lord Chief Justice as long ago as 1981 expressing displeasure at that practice, which admittedly took place in the bad old days chronicled so colourfully by the noble Lord. In any event, the Human Rights Act 1998 will ensure that such practice will be illegal from 1st October this year, and, indeed, that such conduct will be dealt with retrospectively.
Throughout this debate has run the underlying theme that defendants get a better deal in the Crown Courts after a jury trial. However, that is not supported in any meaningful way by the facts, which, in any event, are very difficult to assemble. That is particularly true of defendants from ethnic minorities. Of course, I can speak only for myself, although I suspect that others would admit to similar feelings. One tended to take particular care with ethnic defendants, not only to ensure that they did not feel that the dice were loaded unfairly against them, but also, rather more shamingly from the legal point of view, one was aware that in the world outside people were waiting to pounce on the slightest slip on the part of the court.
It was also said at Second Reading that because magistrates were largely white, middle-aged and middle-class, they were unable to relate to young people, ethnic minorities and the gay community. We had representatives of all those groups on my Bench. All made, and make, substantial contributions to the work of that Bench.
I turn briefly to the substance of the Bill. In one respect at least I agree with its opponents; namely, what the Government no doubt saw as a sop--but a not very successful sop, it must be said--to stifle opposition to it. I believe to be unfortunate the right of appeal to a judge against the decision of magistrates on the grounds of reputation and livelihood. Indeed, if the
amendments are unsuccessful today, I have tabled an amendment which will seek to remove those considerations from the magistrates' responsibilities. However, I shall refer to that matter on an if-and-when basis. On the central plank of the Bill, I remain convinced that it is entirely proper and long overdue to remove the right of defendants to be able to choose the trial venue in so-called "each-way" cases.At Second Reading there was much talk of the effect of the proposal on the reputation of a defendant found guilty in a magistrates' court. But, as the noble and learned Lord the Attorney-General asked so compellingly, what about the effect on the reputation of someone not permitted that choice now, as the law stands? For example, what about a bank manager accused of indecent exposure or fiddling a car tax disc? Those are both summary offences. Is it seriously to be said that the damage to his reputation would be any less grave than if he were to be accused of the theft of a packet of elastic bands from a stationery store? I think not.
Why do those who seek to block this reform not go the logical way about it and include those so-called damaging offences in the each-way net? I shall tell the Committee why not. It is because it would cost a great deal of money, drag out the legal process even more and, in the long run, prove unworkable. So they prefer to preserve an anomaly which has existed only since Victorian times. They cloak that illogicality with scaremongering about the threat to that jewel in the crown of the English legal system--the jury.
There is no doubt that there are a number of persistent offenders who manipulate the system for all it is worth. Mention has been made of the costs involved in that malpractice, but in the totality of government expenditure it is a drop in the ocean. I suggest that far more important is the abuse of time engendered by those dishonourable practices and tactics. The phrase "Justice delayed is justice denied" has been flogged to death. But that does not make it any less of a fact. Those people clog up the system and the wait before trial becomes ever longer. The longer the postponement, the frailer the memory, the less reliable the witness. In this House at least that truth was acknowledged during our discussions on the War Crimes Bill.
What about the victims of the crime and all associated with it in one way or another? Is their anxiety to be prolonged too all because of a knee-jerk reaction to sensible change? I strongly urge Members of the Committee to think very carefully before voting against this Bill. I doubt whether those promoting it can expect much support from the serried ranks of barristers, apart from some notable exceptions among my noble friends.
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