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Baroness Kennedy of The Shaws: I hope that the noble and learned Lord will give way so that I may ask him the following question. Does he not consider it a risk that if magistrates were to take his advice and decide that if young black persons before them asked for a trial and said that they thought that they would be unfairly treated by magistrates, and that one got from that an increase in the number of black people having trials, that would set up the very thing that one would also not want, which is a feeling among white people that there was a privileged position for ethnic minorities? I should have thought one would find that ethnic minorities do not want that because they know that it would backfire on their communities. Therefore there are inherent risks in what the noble and learned Lord is suggesting. What he is pointing up is the very problem which those of us who are concerned about this Bill have sought to address.
Lord Donaldson of Lymington: Discrimination in any form always constitutes a great difficulty and a great danger. If particular ethnic minorities have equal faith in magistrate as in Crown Court trial, the problem will not arise. However, if the fear of discrimination arises in the mind of an accused, he ought to have no fear of expressing that and the magistrates ought to weigh that carefully and also take account of the matters that have just been raised.
I conclude by saying two things. It is said that jury trials give the opportunity for a representative group of people to express their abhorrence of the law as it stands. That is true. It is suggested that that may be the case as regards various parts of European law. That may well be true. I regard that as a perfectly good ground for asking for jury trial. It should not be given automatically but it should be given if some substance can be demonstrated.
Lord Dholakia: I am delighted to support the amendment. I assure the noble Lord, Lord Lipsey, that I am not a lawyer, but I have been involved in race and community relations for over 30 years. If I may say so, I found some of his comments inappropriate. I say to the noble Lord, Lord Mackenzie, that to equate the view with which he disagrees with the propaganda of Goebbels is also unacceptable.
The noble and learned Lord the Attorney-General and I have seldom disagreed during the passage of much criminal justice legislation through this Chamber. However, there is one issue on which I part company with him; namely, this Bill. Many of the arguments against the Bill have already been advanced and I shall not repeat them. However, there is one area which cannot be allowed to go unchallenged. I wish therefore to concentrate on one specific but crucial area of the argument--whether ending the right to elect jury trial will particularly disadvantage black and Asian defendants.
During the Second Reading of the Bill I commented at some length--I am grateful to the noble Lord, Lord Windlesham, for pointing that out--on the inadequacy of research in this area. The Minister and some other noble Lords have relied on the Home Office research published under Section 95 of the Criminal Justice Act 1991. I should have thought that there were ample arguments against using those statistics. I am surprised that those briefing notes have been further circulated by the noble Lord, Lord Bassam. That gives me further opportunity to say how inadequate that research is.
There is an admission in the Section 95 publication that in many of the Crown Courts and magistrates' courts covered in the pilot studies the level of missing data is at least one-quarter, thus making it impossible to identify any ethnic differences in court decisions at local level. Therefore we have information from just four pilot areas. None of those included Greater London where at least half of the ethnic minority population live.
There is a further admission that even in these areas the depth of analyses possible is limited because of the small number of cases from each ethnic group. It has not been possible to produce data by offence or age group which are known to vary among ethnic groups. In addition, other factors such as previous convictions cannot be taken into account. Therefore the figures in the briefing paper do not have much relevance to the argument. The results on which the Home Office places such emphasis are merely the outcomes and do not compare like with like. It is like clutching a straw to justify one's conclusions. No pun is intended here!
In a major study on sentencing undertaken by Dr Roger Hood of the Centre for Criminological Research at Oxford more than 80 variables were considered in the analyses and 15 were finally selected to calculate a probability of custody score. Using those variables it was demonstrated that, even when relevant factors were allowed for, there were still differences between sentencing of differing ethnic groups. The
Even if in our wildest imagination we were to accept the Home Office conclusions, there are still further arguments that we need to consider. There are two important issues here: first, whether this change will be to the disadvantage of racial minorities; and, secondly, whether black or Asian people will perceive the change to be biased against them, thereby further denting their confidence in the fairness of the criminal justice system.
There appears to be no disputing that black and Asian defendants who appear at the Crown Court are more likely to be acquitted than white defendants. Home Office figures, figures supplied to the Royal Commission on Criminal Justice and data from Crown Courts in 11 pilot areas included in the Home Office's recent Section 95 publication, Statistics on Race and the Criminal Justice System, showed that 19 per cent of black defendants and 24 per cent of Asian defendants, as compared with 16 per cent of white defendants, were acquitted. There were similar findings in the recent study Race and Crown Prosecution Decisions by Dr Bonny Mhlanga. Many black and Asian defendants feel that if their cases stay in the magistrates' court they are more likely to be convicted by what in most cases would be an all-white group of magistrates.
The Government respond by claiming that figures for sentencing in magistrates' courts show no apparent bias between different racial groups. Having been a magistrate of long standing, I am pleased to hear that. But being sentenced in an unbiased way is of limited comfort to someone who would have not been convicted at all by a jury. In any event, as I explained, when we examine the sentencing statistics closely they do not inspire us with confidence in their reliability.
It is dangerous to reach conclusions about ethnic minorities with the flimsy evidence that the Home Office has produced. Are we really expected to rely on information as partial and as unreliable as this when we are considering such a fundamental change to our criminal justice system?
When detailed studies of individual court areas have been carried out in the past, they have in some cases produced disturbing findings. For example, a study by Dr. Barbara Hudson of the Middlesex Probation Service published in 1989, Discrimination and Disparity: The Influence of Race and Sentencing, New Community. Vol. 16 No. 1, surveyed sentencing in magistrates' courts and Crown Courts in the eight Greater London boroughs. What does it show? The study was carried out over a three-year period and covered 8,000 sentencing decisions. A significantly higher proportion of Afro-Caribbean offenders received custodial sentences than did white offenders for common types of offences. For example, 50 per cent of white offenders and 75 per cent of Afro-Caribbean offenders convicted for assault causing actual bodily harm received custodial sentences; for
Local studies of magistrates' courts in the late 1980s by the West Midlands and West Yorkshire Probation Services reached similar conclusions, indicating that black offenders were more likely than white offenders to receive custodial sentences.
We require similar thorough up-to-date studies of magistrates' courts sentencing to be sure that claims of lack of racial bias are reliable--not incomplete bits and pieces of statistical data which raise more questions than they answer.
One final point. It is true that the Royal Commission on Criminal Justice recommended that defendants should not be able to elect for jury trial. However, the Royal Commission's report contained no discussion of the impact of the proposed changes on defendants from racial minorities. There is no evidence from its report that it even thought about this issue. In contrast, when the Royal Commission considered the selection of jurors, it recommended that in a case with a racial dimension the defence should be able to argue that it required a multi-racial jury containing up to three people from ethnic minority groups. If the Royal Commission could see that some black or Asian defendants might believe that they would get a fairer trial from a multi-racial jury than from an all-white jury, why is it so difficult to understand that many defendants believe that they will get a fairer trial from a multi-racial jury than from an all-white bench of magistrates?
At a time when the criminal justice system needs to take every step that it can to repair the confidence of racial minorities, abolishing the right to elect jury trial is a step in precisely the opposite direction.
A more fundamental point is that many ethnic minorities--even if it is not the reality--still perceive that there is unfairness in the criminal justice system because the law is inevitably, for reasons of history, in the hands of predominantly white people--and magistrates' courts are no exception.
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