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Lord Ackner: My Lords, before the noble and learned Lord sits down--
4.24 p.m.
Lord Cope of Berkeley: My Lords, I believe that as the Question had already been put from the Woolsack we should proceed. It is good to see the noble and learned Lord the Attorney-General back helping out the Home Office after the excitement of introducing a rare Law Officer's Bill earlier this week.
However, the Home Office will certainly need some help because this Bill has generated enormous opposition from an extremely wide variety of sources. That opposition originally included the noble and learned Lord himself. When this measure was first suggested a few years ago the noble and learned Lord the Attorney-General, who was then a legal spokesman for the opposition of the day, attacked the central notion of this Bill; namely, the ending for many serious offences of the choice by the accused of a jury trial. In a Times article he called that madness. However, now he recommends the measure to us.
The other day during a debate on the loyal Address he indicated--he told us this more specifically just now--that the difference now is that there is to be an appeal on the magistrates' decision to refuse a jury trial so that the ultimate decision will rest with the Crown Court in the system that the noble and learned Lord described. We are told that it is the existence of this appeal mechanism that turns madness into sanity.
The first conclusion that I draw from that is that the noble and learned Lord thought that the original proposal was mad because he did not trust magistrates to take correct decisions. Today, however, he wants us to think that the prospect of an appeal to a sane judge saves the accused from the madness of decisions that magistrates may take. Your Lordships may think that "madness" is rather a strong word. However, as we know, the noble and learned Lord chooses his words carefully, and that is the word that he chose in the article in the Times in 1993.
In any case, the idea of an appeal being built-in is not a novel one. It has been around at least since the time that the previous government were considering the matter. However, the insertion of an appeal mechanism has two other effects. First, it damages, and probably destroys, the financial savings which were originally expected from the Bill. But it also damages, and probably destroys, the time savings which were expected from the original proposal and which are now claimed as the principal practical reason for bringing the Bill forward.
We are told that the Government's reason for bringing the Bill forward is not primarily financial. The noble and learned Lord said that it was not the determinant in this instance. The Minister in another place also said that quite specifically in May. It is true that the memorandum on the Bill claims that it will, incidentally, as it were, save some money. The sum of £105 million is suggested. I remember that some years ago a Yorkshire ministerial friend of mine mentioned a Treasury demand to save such a sum from a multi-billion pound budget with which he was involved. He asked, "Why can't they just sweep up round the safe?" It is a sum which is well within the margin of error of expenditure on these matters.
However, there is something odd about this estimate. The memorandum also states that the Bill will not cost a single job in the public service. In other words, we are expected to believe that the changes will save £105 million without saving the time of a single judge, any Crown Court official, anyone from the
Crown Prosecution Service or anyone else in the public service. It is difficult to imagine how the figures of £105 million and nil can be reconciled. The saving cannot possibly come from administrative expenses alone with no staff effect at all. One can suppose only that the two different calculations are based on different presumptions. I am sure the House would be grateful if, when he winds up, the Minister will tell us more about the way in which the financial and staff estimates in the memorandum are arrived at and why different bases have apparently been used for the two estimates.In any case, it is a good thing that the noble and learned Lord and the Government are not claiming that the Bill is primarily a money-saving operation. It would be both wrong and risky for the Home Office to put it forward on that basis. Wrong because justice should not be compromised; and risky because the savings are quite likely to prove entirely illusory once the appeal mechanism and everything else are in place.
The other thing which is likely to prove illusory is the idea that the Bill will speed up the process of justice. When the proposal for magistrates alone to decide the trial venue was put forward in 1993 by the Royal Commission, and again in the Narey report on delays in the system in early 1997, the right honourable gentleman the present Home Secretary said that he thought the reduction in delay would prove illusory. Now the new appeal provisions--the very element that makes the Bill sane in the eyes of the noble and learned Lord the Attorney-General--will increase the delays above what the Home Secretary said at that time was illusory.
The Bill makes delay and expense more likely, certainly in comparison with the proposal in its original form. Under the Bill a case would need to go to the magistrates; then to the Crown Court on appeal; and, if refused, back to the magistrates or, if granted, to be heard by the full Crown Court. As the noble and learned Lord said, it would need to go to different magistrates in case the original ones were biased by having heard about any previous convictions of the accused. It seems therefore that the chances of reducing delay by the Bill are illusory.
Of course we all want to reduce delays in the law. The previous government considered this proposal from that point of view. After due thought--and, no doubt, after studying the noble and learned Lord's article in The Times--my colleagues in the Home Office at the time took different action to reduce delays and to deal with the apparent mischief of the accused waiting until he or she got to the doors of the Crown Court and only then pleading guilty. The heavier sentences being imposed by the Crown Court for pleading guilty at a late stage in the legal process have come to the attention of criminals and they have become much more wary of that ploy, judging by the figures that I have seen.
In addition, since 1997, under the 1996 Act there began the process known as "plea before venue", whereby the accused has to enter a plea of guilty or not guilty before it is decided whether the case will be
transferred to the Crown Court. For the past two years, only those pleading not guilty have had the choice of venue. The Minister of State, Mr Paul Boateng, said in July that plea before venue had led to a considerable decrease in Crown Court cases. Presumably as a result of these two changes, we know that the number of "either way" cases going to the Crown Court fell from 35,000 a year at the time of the Royal Commission to 18,500 in the last full year for which we have figures. I think those are the facts, one of which, at least, was confirmed by the noble and learned Lord in his remarks. So apparently the delay has been much reduced already.In other words, the choice of jury trial is to be taken away in these circumstances for no good financial reason and illusory--certainly unproven--reductions in legal delays.
In any case, these practical arguments of finance on the one hand and delay on the other need to be weighed against the arguments of principle. It is said that this choice, ancient in origin--although I agree with the noble and learned Lord that it has been modified considerably over the years--is not allowed in many other countries' legal systems. "Modernisation", therefore, suggests that we should bring our system into line with those of other people. I do not accept that. What is at stake here is our people's confidence in our legal system.
English and Welsh people have been taught to expect that if they are in serious difficulty with the law they will have automatically, or be able to opt for, a trial by jury--that is to say, ordinary people deciding one's guilt or innocence; not clever lawyers or distant judges, but people like themselves. Those who practice in the courts often say how seriously jurors take their duties. Those who have been on juries recognise that this system works and take their duties seriously.
To take away this right of choice in such cases is to take the decision about venue back to the authorities. All authority is criticised these days and has to earn such respect as it can get. People can relate to a box full of jurors much more readily than to a bench of magistrates, however carefully chosen. They will trust their future to them more readily. It is essential that the criminal justice system should have the confidence of the public and this part of our traditional freedoms should not be taken away-- particularly not for the sake of copying other countries and certainly not on such flimsy evidence of advantage in terms of money or swifter decisions.
There is a substantial number of our fellow citizens whose trust in the system is already particularly low and to whom we should give particular attention. I refer, of course, to the ethnic minorities. We have the report on the Lawrence case, which set that out for us. It is perverse in the extreme for the Home Office to be setting out now to damage that precious trust by this measure. Not long ago, we agreed in all parts of the House that the criminal justice system--not just the police--should do everything possible to build up the confidence of ethnic minorities. This measure attacks
that confidence. That has been made absolutely clear in the representations made to me and, no doubt, to other noble Lords.The next point of principle concerns the nature of defence. The difference between summary jurisdiction in the magistrates' court and trial on indictment in the Crown Court is not only that the jury decide questions of fact instead of the magistrates; the whole defence arrangements are different. In the magistrates' court, the defence has to respond to the prosecution case as it develops during the trial on the hoof, as it were. In the Crown Court, the defence sees the prosecution case in full, with all the papers, before the trial and can therefore respond more fully to all the accusations that are made. It is no wonder that those concerned primarily with prosecution favour the Bill; they do not have to disclose before trial in that way. We above all people should look to the interests of the defence and the liberty of the subject. Parliament should be the champion of the rights of the individual against the state.
We shall also wish to examine the problem of how defendants are expected to argue that they should be tried in the Crown Court before they have seen the prosecution case, either when they are before the magistrates or when they are on appeal--if it goes to appeal--about venue. As the Bill stands, the defence is expected to make representations to the magistrates and, if necessary, to argue for the venue in the Crown Court on the basis of a formal charge only, without the particulars of the evidence and the witnesses that the prosecution would have to show to the defence before the Crown Court heard the case. If the magistrates are to make sound decisions about where the case should be heard, both they and the defence must have a clear idea of the case and of the evidence against the accused.
At one stage I thought that this idea might be part of a larger European-inspired move to remove the jury system and to replace it with career judges and public prosecutors trained from youth upwards. Of course, the idea emanates from the European Union proposal known as corpus juris. That is a rather grandiose name for a proposal under which, among other things, juries would be removed from cases involving financial fraud against taxpayers' money which had passed through the mechanisms of the European Commission. However, we debated that proposal last Thursday and the noble Lord, Lord Bach, who carried the Home Office flag on that occasion, was thoroughly against it. This House, reinforced by an excellent Select Committee report, was clearly in favour of keeping juries in such cases. I believe that we should all keep up the fight against corpus juris but, likewise, the Government need to explain why they are for juries in that context and against them as far as concerns this Bill.
There are some detailed points which we shall no doubt consider further at a later stage, but I believe that it is right to refer to them briefly here. The Bill states that magistrates, in deciding where a case is to be tried, would have to take into account the possible loss
of reputation or livelihood that might flow from conviction in a Crown Court rather than in a magistrates' court. Obviously, we shall want to probe those provisions but it seems to me that it would be wrong for someone with a public reputation to be treated differently in this respect from someone whose reputation extended only to their family and friends. I also believe that it would be wrong for an unemployed man or woman to have a different trial from an employed man or woman solely on the grounds that they were unemployed. Yet, if livelihood is to be the key, presumably that is how the decision would be made.Similarly, the idea that previous convictions should affect the place of trial is, on the face of it, offensive. Of course it should and, indeed, does affect the sentence if the accused is found guilty at the end of the process, but offences should always be tried solely on the merits of the case. To do otherwise is to damn someone without possibility of reform because he has been convicted a number of times. I believe that the Government will have to work hard to persuade your Lordships that it will not be unfair and potentially prejudicial to decide the place of trial on the basis of the number of previous convictions held by the accused.
For all those reasons, we are opposed to the Bill. However, I suggest to my noble friends and to other Members of your Lordships' House who are against the Bill that we should not try to stifle debate by voting it down at this first debating stage but should abstain at the end of the debate. By saying that, I do not believe and do not wish to imply that the Bill can be changed by amendment into an acceptable Bill. But I have no doubt that we can tease out in Committee and in the later stages the dangers and problems of the Bill. I hope that we can succeed, both today and in the later stages, in persuading the Government to think again and to drop this measure. They would gain only credit for that, certainly with us. The measure was not in the manifesto and the Government can drop it without trouble. Otherwise, we shall do our best to expose the unfairness of the Bill in detail as well as in principle and to expose the frailties of the arguments for it. If the Government persist with it, we shall vote against the Bill passing into law at the appropriate stage at the end of this House's deliberations.
4.44 p.m.
Lord Thomas of Gresford: My Lords, I suppose that I should declare an interest. My father was a policeman. I was born in a police house. I spent the first five years of my life living in a police station, after which it became a magistrates' court. After that, my father was the prosecuting inspector in the town of Wrexham, a job which he held for 10 or 12 years. In my teenage years I used to leave school at one o'clock and go to the police station to eat my dinner in the police canteen. So I imbibed the "canteen culture" of the police force with my sausage and mash. Since then, I have been a solicitor for five years, a junior counsel for 10 years, Queen's Counsel for 20 years and, if your
Lordships will forgive me, a Recorder of the Crown Court for 25 years. I believe that I have a lifetime experience of the criminal justice system.
It should not be necessary for me to say so, but the noble Lord, Lord Maxwell of Framwellgate, who I see is in his place, suggested in the debate on the gracious Speech that trade unions at the Bar and the Law Society opposed the wonderful new reform which is being put forward. The Home Secretary said that we were pursuing our financial interests. Although the noble and learned Lord the Attorney-General does not go that far, on Tuesday he referred to me as an "unreconstructed barrister". I am an unreconstructed solicitor, an unreconstructed son of a policeman, an unreconstructed liberal and an unreconstructed Liberal-Democrat, and I hope that there are some unreconstructed Members of the Labour Party opposite who will vote down the Bill.
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