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I recognise that most of those who will speak tonight are my personal and professional friends and that they will feel unable to support the Bill. Even as regards those who do not have the indignity of being in that first category, I recognise that their motives are entirely honourable. It is not their motives I question but their conclusions.
It is fair to say that we have spent a substantial amount of time on this issue and I make no complaint about that. I hope that your Lordships will think me neither discourteous nor derelict in trying to keep my remarks reasonably economical tonight, bearing in mind the number wanting to speak.
The single issue here is: how do we deal with either way offences which can be tried either in the magistrates' court or the Crown Court? That is the issue. It is not Magna Carta; it is how we operate the Crown Court system in an efficient and appropriate way in modern circumstances.
Perhaps I may say by way of background that the right to an impartial trial in a reasonable period of time is one of the rights in the European convention. It is not a right that attaches only to defendants. I suggest that it is the right of the wider community that serious cases should be tried in the Crown Court with a jury within a reasonable period of time. The melancholy conclusion to which one is driven is that many cases go
The issue I would put to your Lordships is: how do we manage the system in the most appropriate, prudent and judicious way? We are therefore attending to the question: what is the proper process of decision by which that question is answered? This Bill, were it to have a successful Second Reading tonight--I think that that is a reasonable use of the subjunctive--will have the following consequence. It will give to the judiciary, whether magistrates or Crown Court judges, the power to decide whether either way cases should be tried in the Crown Court or the magistrates' court. That is to say, it will substitute the defendant's diktat with judicial discretion.
Lord Williams of Mostyn: My Lords, the noble Earl, Lord Onslow, says that that is clever. It was not intended to be; it was intended to be a purely factual description. Indeed, I shall paraphrase what the former Lord Chief Justice, Lord Bingham, said. I recognise that it is a paraphrase but I believe that it is a fair one. It was, "Should we entirely leave the decision to the defendant whose overwhelming motive may not be the securing of the interests of justice in the public community?"
Lord Tebbit: My Lords, I am grateful to the noble and learned Lord for giving way. What grated slightly with me--I am not sure whether it grated also with my noble friend Lord Onslow--was his use of the phrase "defence diktat", whereas most of us would have used the phrase "the right of the defence".
Lord Williams of Mostyn: My Lords, I take the noble Lord's point. My purpose in using that phrase was that the defendant has an absolute right to dictate. If one leaves the question to the judiciary, one has a judicial discretion imported. I take the noble Lord's point, but having done so I still believe that I put the opposition fairly and accurately between those two stances.
As I said earlier today and during our first lengthy debate, I recognise that honourable people can honourably disagree on this. I am trying to define the issue and others must come to their own informed conclusions about what their answer may be.
Perhaps it ought to be remembered that at present magistrates can and regularly do direct that an either way case should be tried in the Crown Court if they believe it is too serious for them to try. They could carry on doing that if the Bill were passed. But let us not forget that the defendant can chose a jury trial even in very minor circumstances. It is not an overstatement to say that it is not in every case that an allegation of shoplifting a jelly or a banana from Tesco ought to occupy the scarce resource of trial by judge and jury.
I shall give some examples. A women who complains that she has been raped is doubly traumatised--understandably, I believe--if she has to wait many, many months before the trial occurs. A complainant in a child abuse case is similarly harmed. The evidence is overwhelming that many child complainants believe that the system has damaged them more than the offence and that they would not complain in future.
In any event, apart from delay damaging complainants, it has a number of deficiencies from the point of view of the general community. I believe that there is a social and moral imperative that crime should be speedily investigated and promptly tried. When unworthy and unacceptable delay creeps in, that imperative becomes dissipated. The victims of crime rightly cry out that their voice is not sufficiently attended to, that their cases are taking a long time and that if the process of rebuilding their lives which have been grossly damaged is put off, that is a further injustice to them. I believe that they are right.
Witnesses' recollections fade and the quality of the evidence is diminished. The sentencing judge has a much more difficult task to carry out if a significant period of time has elapsed between the commission of the offence and the finding of guilt and ultimate sentence. I do not believe that any of the propositions that I put forward is unreasonable. That was why I began by suggesting to your Lordships that this is not simply an oppressive attempt to take away the rights of individuals in this country--far from it. We seek to balance proportionately different interests, not every one of which may be triumphant on every single occasion.
Lord Williams of Mostyn: My Lords, it is not a guess. I do not mean to put it disagreeably, but it is the product of many years' prosecuting and defending mainly in the Crown Court. I know perfectly well, as does every practitioner in the Crown Court, that time is regularly wasted. I give a statistic which may be of assistance. Sixty per cent of those who elect trial by jury plead guilty when they get to the Crown Court. I do not need to be a statistician to draw the conclusions which I offer to the noble Earl, Lord Onslow. These are facts.
I understand as well as anyone the importance of trial by jury. It is the appropriate remedy in serious instances where the state and the citizen's interests collide. Trial by jury is not suitable for election by the
How is that objective judgment to be made? I repeat what I said to your Lordships earlier. I was not willing in any circumstance to allow the decision to rest only with the magistrates. This Bill provides for an automatic and immediate right of appeal by a potentially aggrieved defendant who wishes to be tried by the Crown Court. The magistrates decide and there is an automatic right of appeal.
I do not deal with questions of cash but resource, which is a much more subtle concept. The resource of the Crown Court is limited and should be properly directed. I suggest that if we wish to have a structure of criminal justice that has something to do not only with crime but also with justice and that it become systematic, we should give these proposals an open-minded reception. That is all that I ask; I cannot seek anything more.
There are many offences--on the previous occasion the noble and learned Lord, Lord Bingham, gave the example of indecent exposure--which are not capable of election. The noble and learned Lord gave the graphic illustration of the bank manager who was charged with indecent exposure and had no right to elect trial at the Crown Court. It is not possible for the school teacher who is accused of common assault on one of her charges to elect trial by jury. Your Lordships will be well aware of the recent example in South Wales. A nursery nurse who is prosecuted for cruelty to children cannot elect trial by jury. Parliament has decided over the years that those offences can be tried only by magistrates. I do not introduce a note of levity. Today, two Bishops are present. Their lives and vocations would be wholly destroyed beyond redemption in this world if they were convicted of kerb crawling. There is no right to elect trial by jury in such a case.
Whatever may be the conclusion of noble Lords this evening--I have an unhappy presupposition that it may be adverse to me--this is not a simple point; nor should it be swept away simply by gathering around ancient totemic beliefs and thinking that they are a legitimate response to considered argument.
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