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Earl Russell: My Lords, would the noble Lord agree that election acquired an importance it had never previously had when felony was abolished by Mr Harold Wilson in a fit of absence of mind?
Lord Borrie: My Lords, I agree, but my point relates to the types of case referred to at the beginning of the debate by the noble and learned Lord the Attorney-General--very serious cases involving considerable
loss of reputation. For those convicted, both today and yesterday, and cases where one never have had any right to choose and where it is, as a matter of course, a summary trial.Therefore the division between summary trial, either- way cases and, for that matter, indictable cases is a fuzzy one. My point is that over the centuries the lines have been drawn at different places at different times. The 1855 Act came in in the way I have described. The lines have been drawn by government and Parliament as to which cases should go to a jury and which should not. It has always been perfectly proper and indeed respectable, as I think your Lordships will agree, for the burden on the public purse of jury trial and the delays that are caused if the accused opts for trial by jury to be regarded as factors, albeit not as serious as the key factor of gravity of the offence, which divides indictable offences from others.
However, it has always been thought that those other factors I have mentioned have been perfectly proper ones to consider and the 1855 Act itself, which restricted automatically trial by jury, referred to,
- "the need to diminish expense and delay in the administration of justice".
Lord Borrie: My Lords, yes indeed, and in 1855 certain changes were made. The point I want to emphasise is that expense and delay have been very important factors as to where to draw the line. I think I follow the noble and learned Lord the Attorney-General on the points which he made earlier about delays and how they pollute the course of justice. It is not just a matter of the accused and the delays that affect him: it is the delays as they affect victims and witnesses. I would suggest that these delays also adversely affect society in general, especially if one may assume that memories may not be so good as they were after a period of time has elapsed.
Lord Carlile of Berriew: My Lords, I am grateful to the noble Lord for allowing me to intervene and apologise for being the third person to interrupt him. In the balance between delay and a fair result in a trial, does he agree that a fair result wins by a mile on every occasion?
Lord Borrie: Yes, my Lords, of course. But part of the fairness of a trial includes consideration of delay. I shall not talk about the War Crimes Act 1991 and bringing people to trial after 40 or 50 years. In more everyday cases, one can surely agree that delay is a factor in fairness. It is not just the accused who needs fairness; it is fairness to the victim and the witnesses that there is no undue delay in the timely dispatch of criminal business.
Others have already said and will say, so I do not need to repeat it, that jury trial is a splendid feature of our criminal justice system. That is particularly so because it is a partnership between lay people,
ordinary members of the public and professional judges. If we were going abroad to a conference to talk about British justice, surely it would be important to emphasise the integrity and independence of our professional judges. With respect to the noble Lord, Lord Thomas of Gresford, we would also want to stress the uniqueness of the British system of lay magistrates.There have been considerable changes since the days of police courts, to use the shorthand. The number of crimes and criminal cases over the past decades has put a heavy burden on magistrates. But it is generally accepted that, with increased resources, improved selection procedures which include ethnic minorities, improved training of magistrates--it is far better than it was 50 years ago--and greater assistance from legally qualified clerks or advisers, as they like to be called, lay magistrates have been and are a most successful and cost-effective feature of our system.
The Bill does not go into the merits of jury trial. Everyone must surely accept that jury trial must be for the more serious cases. We are dealing with a fairly narrow band of cases in the Bill which is concerned with the either-way cases. I do not need to elaborate on the detailed provisions of the Bill, they will be discussed at length on amendments when we come to the factors which the magistrates must take into account in determining whether jury trial should be available or whether the magistrates will hear the case. The important thing is that in the either-way cases, the accused person will no longer have an unfettered veto on the magistrates' decision. He will have a right of appeal to the Crown Court, in addition to the safeguards provided for by the Royal Commission in 1993 and by the Narey report in 1997.
I remind your Lordships that the Narey report quoted what it called a "senior and distinguished magistrate" as saying:
- "Inevitably the [defendants] who elect [trial by jury]"--
- "are experienced defendants, the ones who know how to play the system".
Lord Borrie: My Lords, the case-hardened magistrate is like a case-hardened barrister: very experienced.
No one would deny that the chances of acquittal are higher at a jury trial. Defendants, particularly if they are "experienced"--if I, a non-experienced magistrate, may dare to use the same phrase--know best how to work the system and which mode of trial will benefit them.
As no one else has done so, I remind your Lordships that the Royal Commission included a number of people experienced in criminal law. There was a
woman QC, experienced in criminal cases; a former president of the Law Society, also experienced in criminal cases; and Sir John May, a former judge of the High Court, later judge in the Court of Appeal. Their view had the same basis as the Bill. They commented that accused persons should be no more entitled to choose the mode of trial that will give them a better chance of acquittal than to choose the judge who is likely to give them the most lenient sentence.I go back again to the 1855 Act and the curious choice given as to mode of trial. That is the cause of the great difficulty we have today. In the past 20 years, many bodies of distinguished persons have been trying to deal with it.
Magistrates' courts conduct about 95 per cent or 97 per cent of criminal cases in the country today. They can surely be trusted to try cases fairly. If not, the changes which the noble Lord, Lord Thomas of Gresford, would like to see--and there must improvements to be made--would have to be much more substantial. Magistrates deal with huge numbers of cases.
I accept that respectable arguments for no change have been put and will be put later in the debate. That is particularly on the basis that not many cases are tried by jury at present. Juries deal with the serious cases and there is always argument as to where the line should be drawn. Perhaps it may be said that there should be no further change at present. That is the basis of it.
However, perhaps I may direct my fire not only at the noble Lord, Lord Thomas of Gresford, but also at the noble and learned Lord the Attorney-General. Both sides of the argument have a difficulty. The noble Lord, Lord Thomas, said that he would like to put a "spotlight"--that was his word--on the magistrates' courts. I should like to put a spotlight on juries. One of the difficulties for anyone, on whichever side of the argument, is our great lack of knowledge of what goes on in a jury room. Discussions about what goes on in a jury room must be conducted on the basis of assumption, speculation and belief--particularly the latter.
In the debate on the gracious Speech, my noble friend Lady Kennedy said that she believes in the jury. To a greater or lesser degree, no doubt, we all believe in the jury. It seems to me that it is time for Her Majesty's Government to consider again the serious difficulties which, because of Section 8 of the Contempt of Court Act 1981, lie in the way of research into how juries conduct their deliberations. That provision makes it a contempt of court for anyone to inquire into what is said, the opinions expressed and the arguments advanced by jurors in the course of their deliberations. There is no exception for even the most respectable and legitimate academic inquiries which would not seek to attribute views or to name names. It strikes me that not only are the Government bringing forward the proposals in this Bill, but their consultative document on serious fraud cases also contains a number of alternatives to juries because they are said not to understand serious fraud cases. The Government are
bringing forward alternative proposals for other modes of trial. It is odd to have such proposals brought forward and for us to discuss them, as with the Bill, when we do not know much about how juries work. How well do they follow such cases?
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