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Lord Williams of Mostyn: My Lords, the intention is that legal aid costs would be included among these rights when exercised as an appeal to the Crown Court. As far as I am aware, those who apply for bail to the Crown Court, having been refused, have the right to legal representation. I am always happy to give way to my noble friend Lord Mishcon. It may be helpful if I continue with my exposition of how we see things and then deal with distinct points when noble Lords have raised questions which I know trouble some minds.
I retrace one step. Therefore, the decision about venue is to entrusted to a level of the judiciary. Already the Crown Court judge, sitting alone, decides on bail or sentence in the overwhelming number of cases. That is in the context of what presently exists as a right for those tried in the magistrates' court; namely, the automatic right of appeal to the Crown Court. So there is duality: the automatic right to appeal on venue--the place of trial--and the automatic right to appeal on conviction and/or sentence, if there is a conviction in the magistrates' court.
I remind your Lordships that no such automatic right of appeal against conviction and sentence is available if one is convicted and sentenced in the Crown Court by judge and jury. I also remind your Lordships that the automatic right of appeal to a Crown Court judge sitting with magistrates involves a complete re-hearing of all the evidence. That is quite different from the circumscribed right of appeal to the Court of Appeal (Criminal Division) which essentially is based on whether or not there were deficiencies in the conduct of the trial. We believe that under this scheme, with appeal to the Crown Court judge being automatic in the context of venue, the magistrates' decisions should be careful and responsible.
For serious cases, the accepted means for defendants to be tried in our jurisdiction is by jury. It is extremely important that that should continue where the state and the citizen are engaged in matters of proportionate importance. We want to strengthen and improve the workings of the jury system in serious cases. We do not want the system to be unable to deal promptly with serious cases so that very often those accused of serious crime are remanded for too long a period in prison conditions which very often are not satisfactory. Apart from the interests of the prosecution and the defendant, I suggest that the wider community has a legitimate interest, which is not confined to that of the prosecution or the defendant in a specific case. It has a wider, sustainable interest in the
I do not believe that that system has attached to it any great public support when it discovers that thousands of pounds and hours of scarce court time--it is a very scarce resource indeed--have been devoted to what would be looked at objectively in all the circumstances as quite trivial allegations of theft. Is it right that someone, let us say, who has 10 previous convictions for shoflifting a jelly or a banana from Tesco is automatically entitled to the right to trial by jury? That is disproportionate and not part of a system that should be encouraged.
I repeat that 97 per cent of criminal cases are tried by magistrates. They are drawn from local communities. They come from a wide range of social backgrounds. They are people of different ages and ethnicity. I agree and concede that in the past some sections of our society have been under-represented on the magistracy. I know that the noble and learned Lord the Lord Chancellor is attending to that in the way he is appointing new magistrates.
Without impeaching anyone's motives perhaps I may mention that other reforms to the jury system were introduced, certainly within the living memory of quite a number of us in this Chamber. There was a dreadful outcry about majority verdicts and how the whole foundation of the criminal justice system would fall. Most independent observers--and I do not mean simply those who agree with me--believe that the majority verdict system has worked extremely well.
Peremptory challenges were taken away and there was great and bitter complaint about that. There was the proposal--objected to by the Bar Council at the time--that there should be the opportunity, with the consent of the Law Officers, to ask the Court of Appeal whether or not an unduly lenient sentence should be reviewed with the consequence that it is not academic but that the actual sentence is increased. I am very pleased to see the noble and learned Lord, Lord Mayhew of Twysden, in his place. I forgive him if he smiles. I recognise why. I was among the unreconstructed neanderthals who objected to his prudent and proportional proposals. He will remember that I complained vigorously on behalf of the Bar. In fact, as regards unduly lenient sentences, the system has worked extremely well. I estimate that in about 90 per cent of cases leave is granted and the sentence increased. Public confidence has been improved because two filters were built in by the noble and learned Lord; namely, the 28-day time limit and the requirement for the Attorney-General's consent. That reform was objected to tooth and nail. Every imaginable argument--and quite a number that were not reasonably imaginable--were deployed at the time.
There is always the danger for any of us, living in any kind of enclosed community, to believe that what is presently in operation is necessarily good in every possible respect. I simply suggest that if we look at fact and the scheme put forward, it is an appropriate reform of a criminal justice system which, despite its many virtues, has not yet achieved perfection in this world.
It is known to your Lordships that the ability to choose trial by jury was introduced in 1855 because there were great pressures and delays in the criminal justice system at that time. Jury trial is right for certain kinds of serious case. The real question appears to refine itself in mind to this: should it be available as an automatic right on demand or should it be restricted, subject to these very important safeguards, to criminal cases which objectively justify it? I suggest that the question resolves itself into that.
I know there are deep reservations. Many noble Lords having those reservations and concerns attended the meeting last night. I do not believe that agreement was to be found. But I repeat what my noble friend the Leader of the House has said on so many occasions. The door is always open after Second Reading. If any noble Lords wish to discuss these matters with or without advisers and see me, with or without officials, I am perfectly happy to hear any suggestions and to act on them if they improve the Bill and are consistent with its thrust. No serious offences will be affected in the way I have described. We are not reclassifying any offences.
A number of us have spent many happy hours at the Bar defending people--they always seemed to be farmers--who were charged with breathalyser offences. Certainly, on the Wales and Chester circuit, provided your client was not an English speaker it was quite normal to secure an acquittal. I am glad to see that my noble friend Lord Carlile nods and smiles at those memories. All those offences are no longer tried by jury; only magistrates can try them now. However, they may affect a man's livelihood. I refer to the offences of common assault, criminal damage of under £5,000 and assault of a police officer in the execution of his duty. All those offences are triable only by magistrates.
Offences of dishonesty are sometimes described as the watershed difference, but they are not. Taking a vehicle without the consent of the owner is an offence of dishonesty. You cannot elect trial by jury for that, but may it not resound in some cases in terms of a person's reputation and livelihood? As far as I am aware, the fraudulent use of an excise licence on a motor car is triable only by magistrates. Therefore I suggest--I hope carefully--that there is no fixed line in the sand which is never capable of being reviewed or revisited. What we have tried to put forward here is a proportionate response.
Obviously, financial considerations have their place. I shall not read the figures given in the explanatory memorandum because I know that your Lordships, who take such a keen interest in these matters, will have studied it. It is not simply a matter
Therefore cash is not the only resource. Judges' time and Crown Court time are also important. It is important that our fellow citizens should wish to serve as jurors in cases they regard as appropriate to the time and voluntary effort they provide. The Crown Court system is more expensive but I stress that I do not believe that that is the determinant. I suggest that within the figures I have produced there are many people who elect trial in the Crown Court to put off the evil day; to delay proceedings; to "hobble" the sentencing judge in coming to the appropriate sentence, as it is much more difficult to sentence appropriately in the minor case where time has passed; and in the hope that witnesses will not turn up or simply become so disenchanted with the system that they can no longer be bothered with it.
We have listened with great care to the views of the noble and learned Lord the Lord Chief Justice and the senior judiciary. They propose the safeguard of giving the defendant a right of appeal on venue. I have set out my own position--which was perfectly well known, in any event--which is in entire accord with what they suggested. I ask with a degree of confidence that this debate should at least address the issues. What I hope--perhaps with a lesser degree of confidence--is that I may already have persuaded some of your Lordships on this matter.