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Lord Hutchinson of Lullington: My Lords, I am grateful for the correction. I say straightaway that I was not aware of the two dates. The House may well feel that to change one's view on a fundamental principle such as this is a matter of some relevance in this debate. As regards the noble and learned Lord the Lord Chief Justice, we are told by the Attorney-General that he agrees and supports this curtailment of the right to trial by jury. I do not know whether that is accurate or not because among the papers we have been given is one containing a lecture given by the noble and learned Lord, Lord Bingham, which I have here. He is recorded as saying that a more fundamental point was that an important guarantee of public acceptance of the unique role and function of lay justices was that a defendant accused of other than a minor crime was not obliged against his will to be tried by justices. He said:
As we have heard, the accused person is described as having a veto on the magistrates and never having the right to choose the venue of his trial. That is a partisan choice and not a judicial one. As I have already said, it has been described as eccentric.
The truth of the matter is perfectly simple and has been so for many years. Unless Parliament has specifically legislated in regard to an offence, anyone charged with an indictable offence is entitled to trial by jury. That is the Englishman's right. Since 1855 and for centuries before that, Parliament has given the accused person the power to waive that right if he so wishes and to elect to be tried in the magistrates' court if the offence is of a minor kind and if the magistrates consider it suitable.
The noble Lord, Lord Borrie, said that the change introduced in 1855 was curious. However, it was perfectly straightforward. The defendant had that right on all indictable offences. I refer to the sensible course to be taken--which has always been taken ever since--as regards many indictable offences which can be of a quite small and unimportant nature. If the offence is of that kind, the defendant should be given the right to be tried summarily. There is nothing curious about that; there is no problem with it. When the accused appears in court, the clerk tells him that the magistrates think that the offence is one that could suitably be tried by them but only if the accused consents to their doing so. In other words, the accused has the right to jury trial, but he can waive it if he wants to. If he does not want to, he is committed to the higher court. The words, "if he consents", which have appeared in every single subsequent summary jurisdiction Act, simply express the recognition of the English law that if you have a right, it is for you to decide how you use it. There is no veto, no eccentricity or "playing the system."
When the Runciman Report states it does not think that a defendant should be able to choose the court solely on the basis of where he or she thinks that they will get a fairer hearing, I simply pose the question to the House, "Why not?", even if the course they choose is more expensive. I say to the noble and learned Lord the Attorney-General that he is cherry picking as regards the Runciman Report which he has quoted so extensively. The Runciman Report states in terms that where a conviction for a minor theft means loss of reputation, in its opinion jury trial is appropriate. Yet, in his opening speech, the noble and learned Lord said that what clutters up the courts is person after person going to trial on what appear to be trivial affairs. The Runciman Report states that those are exactly the sort of trivial offences which, on the face of it, justify jury trial.
It has also been said that the right we are discussing is not an ancient right. I do not know how far back one must go to establish that. We all know that in 1670 those eccentric Quakers, Penn and Mead, were charged with the street offence of unlawful assembly. They were preaching in public a creed that the Government did not like. They were tried by jury and the members of the jury were imprisoned and fined by the judge for sticking resolutely to their unwanted verdict of not guilty. That jury upheld the Quakers' civil liberties against the power of the state, against the establishment and against the vainglory and arrogance of Ministers, as they continue--I am glad to say--to do today, 300 years later.
In the proposed new Section 19 (2), the accused is to be permitted to make representations. He now becomes a supplicant; his ancient right is now a concession, an indulgence. But of course one must note in passing that freedom still lives in the proposed new Section 21 which states:
I do not know whether the Attorney-General realises the power he is putting into the hands of the police or the apprehension of the black community. I do not know whether he remembers the appalling miscarriages which are still with us arising from false confessions and the like. This is the very two-tier system of justice which was so roundly condemned in
It is, if I may say so, in a long professional life in the criminal courts, always a moment to savour when an accused person, whoever he may be, stands in the dock alone, with the panoply of the law lined up before him, and claims his right to be tried--not by the establishment which has put him there, but by his peers, ordinary men and women from the world outside where he lives. Now, under this proposed amendment, he is to be humiliated before the court, turned into a supplicant and forced against his will to be tried by a tribunal which he sees as part of the establishment and which, rightly or wrongly, he perceives to be weighted against him.
But, in any event, Clause 19 of the Bill blows this whole shabby edifice to smithereens. Why should reputation or loss of a job entitle a person to jury trial? Why is a jury trial appropriate only for him or her? Why should an accused's rights be restored to him or her only in those cases? There is only one answer. It has not been given to us. When it really matters, we need a better, safer and fairer system of justice, a system which brings a higher quality of justice. Is not the whole basis of our system of law that everyone is equal before the law; that everyone is entitled to the same quality of justice, with the same guarantees of fairness and the same due process?
How on earth can the representations which the accused is permitted to make be presented to the justices? "You are not perceived to be fair minded and unprejudiced; you are perceived to accept too readily police evidence. You will not understand my lifestyle; you are all white, middle-class citizens and I am black and deprived. Your clerk is not legally qualified or, if he is, he is a very poor lawyer. If you turn me down, the judge to whom I can appeal sits with you regularly on appeals; he sits with you in committees and he knows you socially." Or maybe, in the end, the immortal words of the former captain of the England rugby team, "You are a lot of old prejudiced and incompetent farts." How is one to make that submission to this court?
Finally, to what offences does the Bill apply? The noble and learned Lord, Lord Mayhew, was the first in the debate to refer to them. They have never been referred to otherwise. I shall not repeat them all, but I can add a few more to those given by the noble and learned Lord: possessing offensive weapons; false accountancy; obtaining property by deception; all forms of criminal damage; indecent assault; all drug offences; possession of indecent or obscene material; all customs offences--a whole swathe of criminal offences which deeply affect the public in their ordinary lives. Remove all those from jury trial and what is left? A rump of heinous offences, most of which hardly touch the citizen as he goes about his daily business.
Again in the same lecture, the noble and learned Lord, Lord Steyn, said that without an independent Bar and the jury, the judiciary would be unequal to its task of protecting the individual from abuses by the executive. In the Access to Justice Act the Lord Chancellor has undermined, perhaps forever, the independence of the advocate. Now the noble and learned Lord the Attorney-General--the leader of the Bar, the leader of my profession--is undermining the jury trial. This is indeed a sad day for justice, a sad day for the law and, if I may say so, a sad day for the common man.
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