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Lord Williams of Mostyn: My Lords, I should not like anyone to be under any misapprehension. I said nothing of the kind. I said that the mode of trial in the magistrates' court at the moment is three lay magistrates or one stipendiary. That is the present position. That is not a floated reform; that is what obtains at the moment.

Lord Cope of Berkeley: My Lords, I entirely understand that. I have no wish to misrepresent the noble and learned Lord the Attorney-General. I thought I heard him refer to at least the possibility--not to recommend or agree to the possibility--that some people might wish all magistrates to be stipendiary magistrates rather than lay magistrates. If I am mistaken I shall withdraw my remarks. We shall be able to read it in Hansard tomorrow.

In any case, that is what we read in the newspapers not so long ago. If that is planned it will have serious consequences for the Bill. The transfer of the decision on the type of trial to an authority in the form of lay magistrates will damage public confidence in the system; but if it were universally a transfer of the decision to junior judges, as it were--to stipendiary magistrates--that would increase the damage to public confidence in the system.

The other way in which matters have moved on since our previous discussions is that we are now very near to the publication of the report by Lord Justice Auld on the whole matter of criminal justice in the courts. It is due at the end of the year, in three months' time. At the very least, we should wait for this authoritative report. Apart from all the other arguments on both sides--which I accept can be discussed--this is a question of sensible government. The question of jury trials for either way offences is included in the remit of Sir Robin Auld and, whatever one thinks about the issues in the Bill, we should not legislate before we have seen all his recommendations and arguments and had the chance to weigh them up. Until then it is certainly wrong to risk damaging public confidence in the system.

If it helps the noble and learned Lord the Attorney-General, he need not say today that he will drop the proposal in the Bill; he need say only that he will wait and see what the Auld report says. He used to think that this whole proposal was "madness".

Lord Williams of Mostyn: My Lords, I did not.

Lord Cope of Berkeley: Not far off, my Lords. "Madness" was the word he used when writing an article in The Times.

Lord Williams of Mostyn: My Lords, I know that the noble Lord, Lord Cope, is not a lawyer--but he soon will be one if he indulges in selective misquotation.

Lord Cope of Berkley: My Lords, being a politician, I am grateful for the indirect confirmation that lawyers indulge in selective misquotation more than politicians.

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However, the noble and learned Lord the Attorney-General wrote an article in The Times about the previous discussions. He says of course that that was before there was a right of appeal to the court--although that was discussed at the time. I shall not press the noble and learned Lord too far on that. All I want him to say is that he will wait for the Auld report.

If he cannot manage even that, then please can we hear less about the "listening Government". I realise that the refrain has now changed--I beg your pardon, the "message" has now changed--to, "Well, we have listened but we do not agree with you", but in the case of this Bill they are not willing to wait and hear the point of view of someone whom they asked for an expert opinion. There are times when it is necessary to patch a building without waiting for the surveyor's report--but this is not such a case and the surveyor's report will be with us very soon.

The basic argument for retaining the system is the acceptability of the criminal justice system. These days every kind of authority is diminished. Judges, bishops, Ministers, the police, schoolteachers, civil servants, politicians--where it was never very high in the first place--are all subject to much sharper criticism and are given much less respect for their service to our national life. In these circumstances we should not lower the acceptability of our criminal justice system for the sake of speculative possible savings.

Finally, the right honourable gentleman the Home Secretary recently said on television that it would be "profoundly undemocratic" for this House to defeat this Bill. At the time of the last election the Labour Party was firmly on record in opposition to proposals of this kind. In so far as that entered into the calculation of anyone's vote at the last general election--I do not argue that it did so very much--this Government were elected to oppose this Bill or proposals very like it.

The Home Secretary's idea of democracy is that because he has changed his mind and used the Government's temporary majority to force this through another place--against formidable opposition from all sides, including his own, and under a guillotine--this House must rubber stamp it. That is constitutional nonsense--and dangerous constitutional nonsense. This House is now composed according to the formula chosen by the Prime Minister and agreed by both Houses. We have not only the legitimate right but the duty to make up our own minds on this issue.

I recognise that some noble Lords opposite who do not feel strongly on the issue may be concerned that if they do not support the Home Secretary they will incur the wrath of the noble Lord the Government Chief Whip with his well-known terrier-like qualities. Confidentially I can reassure anyone in that frame of mind: I believe that the Chief Whip will be secretly delighted if we win today. He knows, as I do, that if the Bill is given a Second Reading today the Committee and later stages will be long and difficult, particularly as discussion was guillotined in another place. He also knows that there are five other Bills from the Home

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Office alone now before this House, either awaiting Committee stage or part-way through Committee stage--plus, no doubt, there will be some Commons amendments to other Bills to consider--all of which he is supposed to deliver in the last few days and nights of this Session.

That is in addition to the three Home Office Bills which completed their passage and became law in July. Judging by his recent record, the Home Secretary seems to be mad keen on Bills. It is no wonder that they are so badly drafted. They may be rubber stamped by the temporary majority in another place but in this House, where no party has a majority and where independence of mind is respected, we must each decide for ourselves. This Bill is wrong in principle and in detail. It would damage public confidence in the criminal justice system and we should throw it out. I beg to move.

Moved, as an amendment to the Motion that the Bill be now read a second time, to leave out ("now") and at end to insert ("this day six months").--(Lord Cope of Berkeley.)

5.19 p.m.

Lord Thomas of Gresford: My Lords, the Home Secretary, in his mad keenness to reintroduce the Bill in this form, said that it was part of the Government's programme to modernise the criminal justice system and to improve public confidence in it. It was noticeable that the Home Secretary did not have the confidence of his Back-Benchers in the other place. The government majority was reduced to 83. It was the second biggest rebellion that has taken place under this Government: 23 Labour Back-Benchers in the House of Commons voted against it, 90 abstained, and the Bill was carried by a combination of the "payroll" vote and 30 Scottish MPs for whom these provisions cannot possibly have any interest. Not a single Government Back-Bencher spoke in support of the Bill either on Report or at Third Reading. It was passed, as the noble Lord, Lord Cope, said, only by reason of a guillotine which curtailed the discussions. This is not a popular Bill.

I should like to develop the theme referred to by the noble Lord, Lord Cope, during the course of his speech, and look more deeply into the question of public confidence. I do so with obvious enthusiastic support from the Government Front Bench!

There is no doubt that confidence is the crucial factor which ensures that the criminal justice system works at all. It is not simply that people who are arrested for crime think that they will have a fair trial. Ninety-five per cent of the population rightly suppose that they will never find themselves in the dock, either in the magistrates' court or the Crown Court. But the detection of crime requires public co-operation and participation. The police cannot do their job without the support of people who come forward as independent witnesses to give evidence. Defendants also may not be able to rebut a prosecution case unless they have the support of witnesses who come from the

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public. There is no reward for being a witness. It is not fun. People do their public duty and participate in the criminal justice system because they think it is fair. It follows that every time there is a miscarriage of justice the effects on public confidence are far-reaching and have an effect on the detection and punishment of crime.

Miscarriages of justice occur not simply in the widely reported Court of Appeal decisions where expert evidence is found to be flawed, where there has not been proper disclosure, or where police methods have been questionable. They occur on a much more mundane level, every day, where a man or woman who has made a mistake finds that a court will infer dishonest motives and intentions, or maybe where an eyewitness imputes the action of one person to another and there is a misidentification.

The noble and learned Lord the Attorney-General has referred to the case of someone who is charged with shoplifting jelly from the supermarket as though it were totally trivial. I recall a case in which a friend of mine, after a rugby dinner, walked out of a public house carrying a glass of whisky, which he proceeded to consume, was charged with theft of the glass, which was valued at half-a-crown, and was convicted in a magistrates' court. That had a profound effect on him and on his standing in the community from which he came.

Whether the inference that is to be drawn from a person's conduct is a safe inference depends upon the experience of the person who makes that assessment. In judging the reactions of a youngster or of a confused and elderly person, what they say or what they do, the input of a person of a similar generation with a not dissimilar background is very important. The essential strength of a jury is that there is the collective experience of 12 people drawn by lot from the community who come together to discuss and analyse the evidence that they have heard in a case and to apply their common sense and their shared experiences to the issues that arise--issues which in each-way cases may be extremely important to the individual who is charged with the offence.

I do not believe for one moment that the public lack confidence in the fairness and impartiality of a jury. I agree with the view recently expressed by Professor Michael Zander in the New Law Journal, that,

    "There is a profound belief in jury trial as the fairest system for serious criminal cases".

If the Government want to modernise the jury, let them rename it in their own new Labour speak as a "trial focus group" or something of that sort, but let them keep the substance for what it is--the collective and shared experience of 12 people drawn from the community.

The problem is that governments across the world are not comfortable with juries. Juries are a highly democratic institution. In many of our former colonies they were the first institution that we had left behind to be abolished. Singapore is a case in point.

The problem that a jury poses to government is that government cannot control it. It comes together for one case, it makes it decision and departs. It is not

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answerable to the Lord Chancellor's Department. Its decision on the facts cannot be challenged. If a government wish to pass a repressive law, juries can and will ignore it. Indeed, there have been significant advances in human rights both in this country and elsewhere in the world brought about by the perverse verdicts of juries. If prosecutions appear to be oppressive or misguided, a jury will acquit. In recent years in this country, prosecutions for obscenity, for breaches of state secrecy, and recently for damage to government-supported GM crop experimentation have failed. A common assault is now triable only summarily. Can one really believe that a jury would have convicted the headmistress from South Wales who was recently sentenced to prison by a stipendiary magistrate? Would that case even have been brought by the CPS had it thought that it would have to justify the prosecution, not in front of the stipendiary magistrate but in front of a jury of 12 people of common sense?

The attitudes of juries are not necessarily progressive or liberal. It is my belief, for example, that the fall in the conviction rate in rape cases derives from a deep suspicion of allegations of marital rape or date rape--and the rate of convictions in that type of rape case will increase not by tinkering about with the law, as we have heard suggested by the Government, but only when public attitudes on these questions become more progressive. So I do not claim that a jury is an extension of the Liberal Democratic Party! It is not. It represents a broad cross-section of opinion throughout this country.

The free choice of venue in an each way case may be absolutely critical. Talking with colleagues recently, I was reminded that it was the diktat--the word used by the noble and learned Lord the Attorney-General--of miners during the miners' strike to be tried by juries in such cases. Equally, it was the diktat of police officers to be tried in a magistrates' court. I do not need to develop the reasons why those choices were made. It would be ironic indeed if noble Lords opposite who are veterans of that struggle--such as the noble Lord, Lord Hardy of Wath, who spoke so movingly about it immediately before this debate--were to troop through the Government Lobby on this Bill, which would have denied to the miners the opportunity of being tried by people from their community.

Because juries exist as a legitimate and constitutional check on excessive legislative power and can throw out cases where there is an unjust law or an unjust prosecution, it is tempting for government of any colour--particularly for the present Government, who until recently had an excessively good opinion of themselves--to try to interfere.

On Second Reading in another place, Mr Charles Clarke, the Minister of State, said that,

    "none of our case rests on the cost savings that may arise from the Bill"--

so they have thrown that argument away--

    "it derives entirely from the need to create a more transparent, clear and fair criminal justice system. That is why the Bill is before us, and that is its intention"".--[Official Report, Commons, 7/3/00; col. 965.]

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If one analyses and examines what the Minister said, one has to ask, where is the lack of transparency in the jury trial? Here is a well-developed system of disclosure both for the prosecution and the defence cases. All the proceedings are in public. Submissions on the law are heard and ruled on in public, even though the jury may be absent. But are magistrates' courts transparent? The justices retire and take advice in their retiring room from their clerk. They give no reasons. Indeed, not even stipendiaries are required to give reasons for the decisions that they reach. Where is the opaqueness? Where is there a lack of transparency? It is certainly not with the jury trial.

The greatest lack of transparency--

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