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Lord Windlesham: Perhaps it is in order to have a voice from these Benches. We have just heard a powerful speech from a government supporter and before that one from the Cross-Benches. It might be equitable for me to speak at this stage, and I hope the noble Lord on the Cross-Benches will allow me to do so.
This is a significant moment in the short life of the reformed House. We should see it in a wider context before we turn to the details of the Bill itself. No one will doubt that the decision we take today is the most important in this Session of Parliament, and in the life of the House as it is now composed. Many thoughtful people, whatever the extent of their participation in politics, will be waiting with some interest to see what the Committee decides on this issue. Will it be a straightforward vote on party lines--the adversarial system which has proved to be so weak a restraint on government policies and actions--or will it be on the merits of an issue that bears so directly on the preservation of individual liberty and the administration of justice?
We have heard several fine speeches, notably that by the noble and learned Lord, Lord Bingham of Cornhill, who speaks with all the authority of the present holder of the high office of Lord Chief Justice of England. But to my mind the issues are not finely balanced. It is not necessary to reject the arguments put forward on the importance of reducing delays, saving money, and eliminating what has been described as the manipulation of the system by seasoned offenders, in order to identify and give priority to the interests of justice.
Ever since the introduction of either-way offences--a classification which has brought about all the present difficulties--it has been a fundamental principle that an accused person should consent to having his case tried summarily by magistrates, provided the magistrates decide that it is a suitable case for their disposal. It is quite wrong, and the Government should neither use the description nor allow their spokesmen to do so, to describe the exercise of such a well-established right as an automatic "veto". That is the term now being used; a veto on the ability of the magistrates to try a case.
The argument that many of those who exercise their right to trial by jury in the Crown Court subsequently plead guilty takes no account of the fact that often charges against them have been reduced before the trial in the Crown Court begins. The noble Earl, Lord Russell, referred to that fact in his own speech. Although the official statistics are subject to qualification, they show that in as many as 26 per cent of assault cases in the Crown Court the charge has been reduced. There are lower figures for the reduction in charges of public order and burglary offences.
I am grateful to the noble Lord, Lord Bassam, and Home Office officials, for the rapid way in which they responded to inquiries from myself and others. I accept that there are qualifications to the statistics. Nevertheless, the fact that in a substantial number of criminal cases in the Crown Court the charge is not the same as the one originally laid in the magistrates' court is of central relevance.
I should like to refer to two other matters, without speaking any longer than necessary. This debate, valuable though it is, has already continued for a length of time. The first concerns the ethnic dimensions to the mode of trial decision. Here again, some statistics have been produced, and we all look forward to hearing the noble Lord, Lord Dholakia, who spoke on this aspect at Second Reading. He has special knowledge, and is listened to with respect on this, as on other, aspects. As has already been accepted in the speech of the noble and learned Lord, Lord Bingham, it is perceptions that matter in considering the views of ethnic minorities. The crucial perception is how the institutions of justice are seen. If policies are formulated that overlook that reality, the result is bound to be flawed.
The second point is that the figures are already going down. The number of accused persons electing to go for trial in the Crown Court declined from 53 per cent in 1987 to 28 per cent in each of the two years, 1997 and 1998-- nearly half. So there is already a steady, downward path. The numbers are decreasing, and are likely to decrease still further as the impact of the plea before venue changes becomes more widespread.
I suggest to your Lordships that what we are considering today is a profound issue. It is one that cannot be resolved by differing interpretations of the statistics, or by rival calculations of cost or delay. Running through the Bill there is an undeclared assumption that bad people--meaning those who have previous convictions--should be faced by what will seem to many of them, whatever the realities may be, as a less fair and less thorough form of trial than the virtuous; namely, persons with an established reputation or livelihood. Those terms appear in the Bill, and are crucial to the proposed changes. To my mind, although there are other reasons too, that is the fundamental reason why the Bill is objectionable, and why this amendment should be accepted.
Lord Davies of Oldham: My Lords, before the noble Lord sits down, perhaps I may put a question to him. At the beginning of his contribution, the noble Lord said that he thought that this was a defining moment for this reformed House. I thought he was about to develop that argument more fully. When he said in the rest of his speech that this matter is of profound importance to our democracy, was the noble Lord contending that this Chamber should take a decision
Lord Windlesham: My Lords, it surprises me to hear the objection raised that the voice of the House of Commons would be stilled. What a remarkable comment to make! The Government are perfectly entitled to raise this issue, and individual private Members are perfectly entitled to do so in another place. Motions can be tabled, or new Bills introduced. The idea that the voice of the other place will not be heard is laughable.
Lord Donaldson of Lymington: My Lords, I am sorry if I have caused any inconvenience. I start by making a point which may not seem directly relevant, but which I believe to be so. I welcome the Bill's re-enactment or production of completely new clauses from a large section of the 1980 Act. For those who have to work with the revised form, if it is passed, it is very much easier than the more customary method of tabling amendments saying, "Insert the following words on page 5, line so and so." However, there is one great disadvantage, which I believe to be relevant. The impression is given of far wider change than is actually contemplated by the supporters of the Bill. I wish therefore to mention the respects in which there is no change.
The fundamental basis until now for choosing a particular mode of trial has been its relative suitability, taking account of the seriousness of the offence and the consequences of possible conviction for the accused. No one, apparently, is criticising that approach. It certainly does not involve the proposition that Crown Court justice is better than that of the magistrates' court. All it says is that there are relatively less serious offences for which a less elaborate mode of trial is appropriate and that there are somewhat more serious offences for which the more elaborate Crown Court trial is more appropriate. So there is no change there.
Until now, it has been the law--and if the Bill is passed the situation will not change--that magistrates should reach a conclusion as to the relative suitability of the mode of trial. If one looks at the way it is laid out in the statute, they have to form that view before the accused is asked whether he consents. In fact, under the present system, he can get up and say, "I don't consent at all", and much time would be saved. But it was the intention of Parliament and it is the intention of Parliament, even if the Bill is passed, that the magistrates shall, first, form a view.
Two paragraphs in the Bill are new. They provide that the magistrates should take account of the possible effects upon the accused of conviction in relation to his continuing livelihood and damage to his reputation. I do not know whether that is what my noble and learned friend the Lord Chief Justice had in mind when he said that he was not entirely happy with all the formulations in the Bill. Having listened to noble Lords today, I join him in that respect if he was referring to those two paragraphs. They are absolutely right, let us make no mistake about that. They are a major factor in determining the seriousness of the offence and arranging how it should be tried accordingly. But they are not new; they are new only because someone has written them down.
It has always been a legitimate argument to put to magistrates that there will be exceptional damage to reputation. I shall not give Members of the Committee any examples because, when doing so, it is extremely difficult to be comprehensive. Everyone knows that there are people with certain jobs and certain positions, such as one-man traders. If they are sentenced to imprisonment, it has a devastating effect on their business. Indeed, there are all sorts of different conditions that have to be taken into account, and are taken into account, by magistrates. I do not think that the two paragraphs provide any justification for saying that the law will no longer be treating everyone equally.
I support the Government's objection to the amendment in principle rather than on empirical grounds. It seems quite inconsistent with the main approach underlying the Bill and the 1980 Act that the mode of trial should be determined according to the degree of seriousness. Some people today have criticised accused people--I have heard this before--who decide that they will postpone the evil day by refusing consent to summary trial. I have even heard it suggested that accused people may do that as they would rather go to prison after Christmas, or because they would like to get their holidays in first. That is not a criticism of them; it is a criticism of the law. They are fully entitled to take advantage of their absolute right at present to refuse trial by magistrate. If I were counsel advising them, I would find out what they were really getting at and say to them, "It is up to you. You can achieve that result by objecting to trial by magistrate. You need not worry so much about the serious consequences of being fully tried by a Crown Court because if you express your regret that you have taken the wrong course and plead guilty in the Crown Court many people will take that at its face value". Therefore I do not criticise those people at all but I criticise a system which enables them to do that.
It is said that if they do not have the right to refuse trial by magistrate some people will be disadvantaged. Certainly my client who wanted to spend Christmas at home would be disadvantaged. However, ethnic minorities and young people are a different matter altogether. I would hope--and I believe this to be the case--that magistrates are open-minded and fair-minded in these cases. If a member of an ethnic minority, or counsel on his behalf, said in court, "My client genuinely has a fear that his defence will not receive the same careful consideration by magistrates as by the Crown Court and it is not only my client who believes that, but also many others in his ethnic group", I would expect magistrates to say, "That is a good reason for sending the case to the Crown Court because from your point of view the offence has greater seriousness than it might have for others". As regards young people, magistrates undoubtedly would think that their views were ill-founded, but the perception of the accused matters. I am sure that magistrates would take account of that.