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Lord Hardie: I hesitate to--

Lord Mishcon: Perhaps I may--

Lord Carter: I think it would be appropriate if we heard from my noble and learned friend Lord Hardie.

6.15 p.m.

Lord Hardie: I hesitate to intervene in this matter, being from a foreign jurisdiction. I apologise to the Committee for not being present at Second Reading, but I have read the report of the proceedings. I note that during the debate reference was made to Scotland. My noble friend Lady Kennedy of The Shaws did so again today. I wish to speak as head of the system of investigation and prosecution of crime in a legal system where the concept of an accused electing the mode of his trial has no place and never has.

In any system where there is either way prosecution, there are three options: the prosecutor decides; the accused decides; or the court decides. I understand some of the concerns which have been expressed by the

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Committee today. I recognise that whatever system is chosen, we must ensure that it is fair. There must be checks and balances to protect an accused person against injustice. It may assist the Committee if I briefly explain what happens in Scotland, not to suggest that the same system should be imported into England, as some have suggested, or even to suggest that there should be "cherry-picking", as my noble friend said. Rather, the purpose is to ascertain whether any issues of principle may be applied where the accused does not have the right of election of mode of trial.

I acknowledge that there are fundamental differences between the two jurisdictions, not least because the Lord Advocate is the master of the instance for all prosecutions in the public interest. That in effect means that the Crown alone decides not only whether to initiate criminal proceedings and upon what charges but also, in the absence of any legal provision to the contrary, the court in which an accused shall be prosecuted. The decision whether to take proceedings and the nature of those proceedings is made on an independent and objective assessment of the evidence available and on the Crown's assessment of the public interest.

As to the mode of trial in Scotland, as in England and Wales there are certain offences specified by statute in which the High Court has exclusive jurisdiction and which must be heard by a jury. In addition, there are some statutory offences in which solemn procedure has been expressly excluded. However, apart from such cases, the procurator fiscal, and in jury cases Crown counsel, decides what is the appropriate forum, and they have a wide discretion in making that decision.

In choosing the appropriate forum, the fiscal or Crown counsel will have regard to the gravity of the offence and whether the powers of the court are appropriate to impose an adequate sentence in the event of a conviction. The Committee will recognise the similarity with England, at least in that regard.

Regard will also be had at that stage to the criminal record of the accused. The accused has no rights at all in the decision as to which forum he should be tried in. There is no right of appeal against the decision of the Crown, although if there were oppression the court would clearly intervene.

In Scotland, it will be obvious that we have opted for the prosecution as the appropriate organ to make the decision. I accept that that would not be appropriate in England, where there is not a unified prosecution system. So in England and Wales the choice is between the accused and the court.

I venture to suggest to the Committee that in determining the appropriate forum for trial, an objective assessment founded on relevant and specified criteria would appear to be more just and equitable than one dependent on the subjective views and considerations of an accused. The objective approach balances the interests of the accused against the interests of society in general and victims and witnesses in particular.

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What is essential in any system is that the various interests are balanced; that society's interests, as represented by victims and witnesses, are balanced against the interests of the accused. But what must be ensured is that the accused is protected from the effect of arbitrary decisions. Who better to perform such a task than an independent judiciary?

In the Bill, the appropriate balance is achieved while ensuring that there are sufficient safeguards for the accused. The magistrates are obliged to have regard to the matters specified in new Section 19(3). New Section 20(4) provides the further safeguard of a right of appeal to the Crown Court against the decision of the magistrates to try the case summarily. There is thus judicial scrutiny to afford an aggrieved accused person further protection.

I invite the Committee to accept that the Bill will achieve the correct balance. By reducing delays in trial, the Bill will secure a more efficient system of justice, to the benefit of victims and witnesses alike, while at the same time protecting the interests of an accused.

Lord Taylor of Warwick: There have been a number of references to black defendants during our debate. I do not put myself forward as an expert witness on the issue simply because I have a black skin, but I have represented a number of black clients in the criminal courts over the years. What I have found is that, rather than seeking an O. J. Simpson verdict, what they seek is simply a fair trial. So I totally support the comments made by the noble Lord, Lord Dholakia, and the noble Baroness, Lady Kennedy.

Diamonds are made under pressure. Having created this jewel in the criminal justice crown, I believe it would be wrong to replace it with something which is perceived to be inferior. That is why I support the amendment put forward by the noble Lord, Lord Cope.

The moment we stop listening we stop learning. But it is difficult to gather what genuine arguments the Home Secretary has heard now to propose something which he denounced in opposition. I have tried to keep an open mind about it. Yes, of course it would be unrealistic to claim that no defendant ever chose jury trial simply to delay proceedings. In one of my earliest cases at a Crown Court I had to represent a chap accused of the burglary of a grocer's shop. It was alleged that he had stolen a crate of oranges which he dropped during the police chase after the alarm went off. You could say it was one of my first "juicy" cases. Apparently, he believed that the oranges would go rotten and perish while he awaited jury trial, so destroying the crucial evidence against him. I explained to him that exhibit A was a bundle of colour photographs of the said oranges that the prosecution were perfectly entitled to rely upon. He pleaded guilty.

However, that is not my common experience. The serious point I make is that the number of defendants electing to be tried at the Crown Court is falling--we have already heard the figures--from 52 per cent in 1987 to just under 30 per cent this year. The trend continues to fall.

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There have been a number of excellent speeches, so the remarks I make will be much briefer than would otherwise have been the case. It is claimed that the Bill will save money, and there is some dispute about that. In my opinion, the better way to save expense is to make the legal process from police to the courts more efficient. Of those charged with either-way offences, 25 per cent never get to court or are discontinued, as the prosecution offers no evidence. Most of the defendants will already have got legal aid by that time, at the taxpayer's expense. So again I totally endorse the views expressed by the noble Baroness, Lady Kennedy, on improving the efficiency of the system. In my opinion that is the better way forward.

Confidence in the criminal justice system is vital. Some black and Asian defendants choose jury trial because they fear that they will not get a fair hearing by magistrates. That is not the same as saying that they seek an O. J. Simpson verdict. It is a very different point.

To have the right to elect jury trial removed from them will only further reduce their faith in the system. At a time when the Macpherson report highlighted ways of improving race relations, the Bill could cast a shadow once more. Once the right to elect trial is lost, it will be difficult to win it back. The Government must not sail out further than they can row back. So many organisations are against this, including the Bar Council, the Law Society, the Black Lawyers Association, Liberty, Justice and the Legal Action Group. It is time the Government faced the music, even though they do not like the tune.

6.30 p.m.

Lord Mishcon: Following so many eloquent speeches, I would not dream of addressing the Committee at this hour unless I had something to say which had not been said so far. It may be that it has not been said because it is not very sensible. Nevertheless, I wish to place my dilemma before the Committee.

The matter to be decided this evening can be put in simple terms. For many years defendants in certain cases have had the right, which has been regarded as precious, to choose which court is to try him. Before a right is removed, surely the onus is upon those who seek to remove it to prove--I almost said "beyond all reasonable doubt"--certainly on the balance of probabilities, that the change should be made and that they are not perpetrating any injustice. Broadly, tonight we must decide whether this Bill justifies the withdrawal of a right. One can go on talking in parentheses. One can explain what happens in the Crown Court: for example that, unlike in the magistrates' court, one is served with copies of statements of witnesses to be called by the prosecution, which are frightfully useful. I do not go into those details. Given that there is a right vested in a number of our citizens, have we proved the need to remove it, and are there advantages in so doing?

I tried to do a little research into the claimed advantages of the Bill. I pay sincere tribute to my noble and learned friend the Attorney-General who said at

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Second Reading that he had nought but respect for those who happened to differ from the case that he then put forward. I do not believe that I am being disloyal in what I say. I am being honest when I try to examine some of the supposed advantages. First, we are told that time will be saved. Time is very valuable. I sought to discover from the Law Society the average time for cases in which there is a not guilty plea to be tried in a magistrates' court and a Crown Court in a metropolitan area. I understand that the average time is four months for both a magistrates' court and Crown Court, so it is a dead heat.

We are told that it will save costs. I do not believe that the reduction of cost is a very justifiable excuse for a Bill of any kind. However, I considered that matter in the context of this Bill. One point that has not been mentioned is that the Bill suddenly places a burden on the courts. In every case where the option arises a magistrates' court must be convened to decide which court is to try the case. That does not apply simply to those cases where the defendant wants to be tried in the Crown Court; in every case the court must judge which is the appropriate court. It must listen to any observations that may be made on behalf of the prosecution and defendant and undertake various extensive exercises, to which reference has been made--I do not repeat them--following which there is a right of appeal.

Last weekend I spoke to a very experienced Crown Court judge and asked him what he thought. He said, "Please do not add to our labours in the Crown Court. We already have enough to deal with. Do we have to hear these appeals as well?" The objector to my point will say that it is the same as a bail application. Anybody who knows anything about bail applications will be aware that they can be extremely brief or lengthy. I have sufficient confidence in my colleagues at the Bar to know that if they are allowed to go through all the matters to be dealt with under Clause 1 of the Bill they will be extremely eloquent. I am sure that that will last a long time and that, with those added burdens, costs will not be saved. Which fund is to meet those costs?

At Second Reading I took the liberty to intervene in the Attorney-General's speech. With his usual courtesy he allowed me to do so. I asked whether legal aid would be available for these exercises, and he confirmed that it would be. To be frank, I can think of better uses for legal aid funds. Nevertheless, I cannot see anything happening in regard to costs.

Next, we are told that this is a good way to deal with the situation and for that reason we should withdraw the right. The Committee will not be surprised to hear that I examined my conscience. I bear in mind the beautiful phrase "the jewel in the crown". I do not want that jewel to be scratched or to give anyone the chance to destroy it completely. Once one starts to interfere with the right to jury trial one runs the great risk that some other less just and progressive government will start to knock off other bits of that right.

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The Committee will not be surprised to learn that when I finished my deliberations--which I assure noble Lords were sincere--I came to the conclusion that in all honesty and conscience I could not support the Bill as it stood. Here comes my dilemma.

What does the amendment say? Put simply, the amendment says that there should be an absolute right vested in the defendant to election in what are called either-way cases. My noble friend Lady Kennedy made, as usual, a jolly good speech in which she admitted, as at Second Reading, that there were a number of cases--not the majority--in which people took advantage of the system. If one looks at legislation at all one must deal with that fault. People should not be allowed to make a mockery of the system. If one looks at the amendment, the absolute right is there and, with great respect to those who drafted it, no one has tried to deal with that difficulty. It can be dealt with. I say this to my noble and learned friend the Attorney-General as much as to the movers of the amendment. It may be sensible that we do not vote on the issue tonight but on Report or possibly at a later stage after consideration. I am amazed to find that my sentence has caused laughter. Dissent I can stand; mockery I cannot!

I say this sincerely. One has only to add to the amendment that the defendant has the absolute right to elect subject to the objection that may be made by the prosecutor. Then all the procedures set out in the Bill can be gone through. That is an absolute right given to the accused. The prosecutor will not interfere unless he has extremely good grounds and is able to say to the magistrate or judge on appeal, "Look at the way this defendant is behaving. It is ridiculous that the case should be transferred to the Crown Court".

I have uttered, I hope truthfully and sincerely, the dilemma in which I find myself. It is a matter for consideration--I say this most humbly and respectfully--by both the Government and those who oppose the Bill as to whether we might find some compromise of that kind which does not extend to the abolition of a right but enables us to proceed sensibly. It is a matter of grave concern to our people.

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