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The Earl of Onslow: My Lords, I am grateful to the noble Lord for giving way. Am I not correct that if "plod" see a chap who they know has a long list of convictions, they think, quite reasonably on many occasions, that they may as well pick him up? They then find that the man has been picked up unfairly. It is that man more than anyone else who needs the protection of the court because he has been unfairly picked up. I must make another point to the noble Lord. We should stand alone because we have stood alone in the quality of our justice for 800 years.
Lord Mackenzie of Framwellgate: My Lords, the noble Earl describes a picture of the police--or "plod" as he put it--picking up someone because he has previous convictions. The noble Earl did not explain the reason and he did not explain what the evidence was. If he thinks that they simply go around looking for someone, he has a distorted sense of what the police do. They have far more important things to do than pick up petty criminals, who in many cases they will know have previous convictions. I reject that example outright.
I have mentioned the problem of undermining the system of justice. Is such a change compatible with the European Convention on Human Rights? Yes, it is. The convention guarantees the right to a fair trial; not to trial by jury. It is my submission, in spite of what the noble Lord, Lord Thomas, said, that a magistrates' court does provide the necessary legal safeguards for a fair trial.
I could go on, but time does not permit. In my judgment, justice is not diminished by giving this power to decide to a magistrate, with a right of appeal to a Crown Court judge. It will be a further step in the process of modernising the judicial system of this country.
7.21 p.m.
Lord Renton: My Lords, perhaps I may assure the noble Lord, Lord Mackenzie of Framwellgate, that for years I have had great respect for the police, based partly on my four-and-a-half years in the Home Office but also on my judicial experience, during which I had to try more than 100 jury cases over eight years. On pretty well every occasion I respected the integrity of the police and their desire to help not only to secure convictions but to ensure that justice was done. I admire the noble Lord's attempt to defend the Bill, but I have to say that the arguments that have been put against the Bill by other noble Lords have been put so fully and powerfully that I doubt whether there is an answer to them. At any rate, their speeches have enabled me to shorten mine.
I am glad that my noble and learned friend Lord Mayhew of Twysden has spoken. When I spent five years as Recorder of Rochester, he prosecuted in more cases than any other counsel. So much so that on one occasion--I hope that I am not being too frivolous--at a City banquet, when he was a junior barrister, I referred to him as "the Recorder of Rochester". I am glad, too, that my noble friend Lord Onslow is to speak, because I spent three years as Recorder of Guildford, of which he is the High Steward. There again, by the way, I had great respect for the police.
It seems to me that the responsibility given to jurors since the early 13th century for helping to achieve justice and enforce the law is a manifestation of democracy. Indeed, it was the earliest manifestation of democracy--of letting the people feel that it was they who were playing a part not only in achieving justice but in helping to govern the country by deciding whether or not someone should be prosecuted and sentenced. The jury system is democratic because it enables people at large to feel that they play a vital part. Furthermore, it has the advantage, to a greater extent in our country than anywhere else, of enabling the legal profession, especially those performing judicial functions, to feel that they can concentrate on applying the law while letting the representatives of the people decide the facts.
The Government hope that the Bill will reduce by £105 million the cost of administering justice. I think it is doubtful whether that will happen. As my noble and learned friend Lord Mayhew pointed out, although
there would be fewer jury trials, there would be more appeals of various kinds, each of which would involve an increase in costs. Therefore, the Government's principal reason in favour of the Bill is doubtfully valid. However, even if the Government were correct in estimating that costs would be reduced by £105 million, surely your Lordships and Parliament in general have to consider whether depriving the people, to the extent envisaged by the Bill, of the fundamental right of trial by jury can be justified by a reduction of costs which might be rather more modest than the Government have pointed out. My own view is that it is not justified and so I hope that the Bill does not become law.7.26 p.m.
Lord Simon of Glaisdale: My Lords, before I turn to the Bill, perhaps I may, as a long superannuated predecessor in law of the noble and learned Lord the Attorney-General, pay a tribute to the way in which he introduced the Bill. My parliamentary memory goes back to 1951, but even reviewing all the great parliamentarians that I have heard, his speech was a model of persuasiveness and perfect in tone. One can really only judge its merits when one considers how completely this Bill and all the arguments sustaining it have been torn to pieces during the subsequent debate.
Having said that--it is a genuine tribute--perhaps I may turn to the Bill, which is "short-sighted, wrong and unfair." That is not language I normally use from the Cross-Benches about any government Bill. They are the words of the Home Secretary himself when this scheme was mooted in the previous Parliament.
Having been preceded by such conclusive arguments, and as I am to be succeeded by the noble Baroness who made such an effective speech in the debate on the Address and others whom your Lordships will want to hear, I shall confine myself to only two matters. The jury is a microcosm of democratic society. It has all the advantages of the macrocosm and some of its subsidiary drawbacks. In particular, it is an unexampled way of providing for hard cases without making bad law. Of course, a bad law makes hard cases, but even the most beneficent law will throw up hard cases. That was perceived in ancient times, where it was seen that a statute which did justice in the generality of cases would almost inevitably do injustice in a minority of cases--the exceptional cases. If one tries to frame a statute to cover those hard cases, one will create an injustice in the generality of cases. That is why hard cases are said to make bad law.
But the jury can take care of that. The noble Lord, Lord Wigoder, and other noble Lords have given examples. The judge must apply the law as laid down by statute and by his predecessors. So must the magistrate, advised by the clerk. They cannot do palm tree justice. If they do, they will surely create injustice sooner rather than later. But the jury can do that. The jury, as has been shown, can meet hard cases--any hard case--by its verdict being unquestioned. The jury can do that without making bad law.
To my mind, that aspect is particularly important when we consider the representations that have been made by and on behalf of the ethnic minorities. I believe that all of us who have tried to devote our lives to justice have been deeply disturbed by the Macpherson proceedings. Now we are told in relation to this Bill that the ethnic minorities are genuinely anxious lest its implications would do them a disservice. That point was put in very measured terms by the noble Lord, Lord Ahmed, in the debate on the humble Address.
So my first point is this. We need the jury in each-way cases to meet the hard case and so that the defendant knows that he is being tried by his fellows. I believe that it was the noble and learned Lord, Lord Archer, who used the ancient phrase about the defendant putting himself on his country. That is a wonderful phrase. The defendant submits himself to the verdict of his fellow countrymen; people like himself.
The second matter with which I want to deal is the cost. The financial memorandum mentions a saving of £105 million. I am not one of those among your Lordships who say the word "Treasury" with a hiss. I believe that it is entirely necessary. If the queen is to eat bread and honey, the king should be in his counting-house. So I do not regard £105 million as a trifle. However, I should like to know how this figure was arrived at. Is it the cost at the time of the Royal Commission, or is it the cost today? I ask this because the noble Baroness, Lady Kennedy, demonstrated in her intervention, there has been a dramatic fall in the number of cases where a jury is claimed in the circumstances your Lordships are reviewing.
I should also like to know what is going to be the cost of the appeal procedures. The noble Lord, Lord Mishcon, elicited an assurance that legal aid would be available, so the costs will not be nugatory. I hope that the noble and learned Lord the Attorney-General will tell us what that figure will be, so that we can see both sides of the accounts. Of course, it is perfectly true that the system has been abused. However, it will also be abused under these provisions. Instead of simply claiming a jury trial at the outset, the defendant, in order to spin things out if he thinks it worth his while, will appeal. That will waste time and money. Such actions will involve delay and expense and are implicit in this Bill.
Finally, I wish to say this. Trial by jury, pace the noble Lord, Lord Warner, does go back in germ to Magna Carta. The noble and learned Lord, Lord Archer, traced its potency afterwards, and that has been enlarged upon by others of your Lordships. Since 1855 we have vouchsafed to those who are the concern of this Bill the right to choose trial by jury. They value it and they protest that that right is being taken away. This proposal has been made without any reference to them and they are to be deprived of it.
7.38 p.m.
Baroness Kennedy of The Shaws: My Lords, I shall start by taking noble Lords into my confidence. I have known the Secretary of State for a very long time. He did pupillage in the chambers my boyfriend was in back in the 1970s. I got to know him rather well and I am very fond of him. Indeed, when yesterday I saw him in the Palace, I clutched him to my bosom, as I always do, and I hope that I shall be able to do so again even after we have disposed of the Bill.
However, I must tell noble Lords that I am worried about my right hon. Friend because I believe that it is difficult to find an explanation for his recent rash of illiberalism and his volte-face on this subject. I can only think that he is keeping bad company. He must be spending too much time with the trimmers and the cost-cutters and those who exist without reference to principle. By way of mitigation for him I believe that this is a temporary aberration and I am sure that we shall be able to woo him back to the right path.
When we bumped into each other yesterday, my right hon. Friend said, "Helena, you're a proud Scot. They do this in Scotland". There is no election by the accused in Scotland on both-way cases; it is the procurator fiscal who is able to choose. I said that that was not a very good argument; we had just gone through the process of devolution, based on the principle that the Scots, proud of their traditions, which are distinctive in education and law, should be able to enjoy their distinctiveness. I believe that the English should be able to enjoy their distinctiveness too. I hope that the English will see that this proposal tramples on what is distinctive and precious for them and that it is an intolerable destruction of an important right.
My noble and learned friend the Attorney-General has said that there have been encroachments on the right to trial by jury on previous occasions; for example, the right to trial by jury in drink-driving cases was taken away, as it was in relation to criminal damage. It should be emphasised that the difference with this proposal is that in those cases everyone was affected, irrespective of class, or whether they were black or white or rich or poor; and no choice was being made by magistrates as to whether they were to benefit from one form of trial or another. What is especially invidious about this change is that it gives that discretion to magistrates, and we can almost invariably guess that it runs the risk of being abused on occasions. I want to emphasise the way in which the proposal is being received by the black community, whose members are very alarmed by the Bill--and they are right to be alarmed. I shall deal with that point later.
It is regrettable that the Government have embarked on such a politically controversial and unnecessary reform. A key theme underlying the Government's arguments in favour of abolition of the right of election is that many defendants are manipulative, almost malign, and that they play the system to cause unnecessary delay and to attempt to avoid the consequences of their anti-social behaviour.
Although I accept that there are such people in the system, in my experience that description does not fit most ordinary defendants. The majority of citizens say that they do not understand all that there is to understand about the criminal justice system and how it operates. I suggest that most accused people are in exactly the same position of bewilderment at the situation in which they find themselves. They are usually people with social problems rather than manipulative people. They are confused, and want above all else to escape from their immediate predicament as soon as possible, even when it may not be in their best legal interest to do so. Obviously, they want to minimise the negative consequences for themselves; but that is not the same as seeking to avoid the consequences altogether. After all, the vast majority of defendants, even those charged with the most serious either-way offences plead guilty-- 95 per cent plead guilty and are dealt with in a magistrates' court. The majority even of those who are dealt with on electable (either-way) offences ask to have them dealt with in the magistrates' court.
It seems that the findings of the Royal Commission report are the grounds most cited to justify the change. The commission reported in 1993, at a time when 34,000 cases were being taken to the Crown Court as a result of election. That number has been reduced to 18,000. The reasons are the introduction of "plea before venue" and the new legislative requirement that lawyers and the courts must advise those who are accused that credit will be given for an early plea. For those reasons, we have seen an enormous reduction in cases going for trial.
It is true that some accused, usually on legal advice, will delay their guilty plea, but often for good reason. I do not want it to be imagined that it is only those who are abusing the system who do that. Sometimes, people want to see whether the system itself will review the case against them in the light of emerging evidence. Perhaps I may quote from a letter in The Times on 25th November from Lee Bridges, the respected academic and director of the Legal Research Institute. He says:
- "It is true that many defendants who elect and subsequently plead guilty do so after the charges against them have been reduced. But there is no evidence that such reductions in charges are the result of 'pressure on the Crown', or are unjustified.
- In fact, both Home Office and independent research shows that black and Asian defendants not only have higher rates of acquittal but also have charges against them dropped or reduced more often than whites. This is consistent with a pattern of police discrimination in 'over-charging' ethnic minority suspects. When such defendants elect jury trial, this sets off a more thorough review of the evidence by the Crown, frequently leading to charges being changed.
- Denying defendants this right may well serve to reinforce police racism".
We should also do well to remember that no fewer than 25 per cent of all either-way cases end up in terminations without a formal decision of the court, usually as a result of the prosecution dropping the charges. My noble and learned friend may say that, as a result of delay, sometimes witnesses do not turn up. But sometimes dishonest witnesses decide to retract
their statements, or want to avoid being cross-examined and found wanting. Sometimes, alibis are found, and that makes all the difference. Sometimes, when the CPS has had time to review the case, evidential issues come to light to show that the case could never succeed. So there are very good reasons why cases are dropped or original charges reduced due to over-charging. If we put the right of election for jury trial into that context, we know that the vast majority of defendants--24 out of 25--given the option, choose to have their case dealt with in a magistrates' court. So we are dealing with a very small proportion of cases.It should be remembered that, in Scotland, where defendants do not have the right of election, the situation is different. It is not a case of an accused coming before a lay magistrate; the sheriff is a judge. It is also the case that, on conviction following summary trial, the sentencing powers of the sheriff are limited in similar ways to those of magistrates in England and Wales. I make that point because the Home Secretary has maintained that the sheriff in Scotland has greater powers; for instance, the power to impose a three-year sentence. Perhaps I may inform my noble and learned friend the Attorney-General of what happens in Scotland.
There are three modes of trial. There is summary trial before a sheriff (a judge), and his maximum powers are as follows. If my noble and learned friend wants confirmation, I refer him to Section 5 of the Criminal Procedure (Scotland) Act 1995. Summarily, the sheriff can impose a three-month sentence on any one complaint. If a person has previous convictions and it is a second or third offence of dishonesty or violence, the sheriff can impose a sentence of up to six months. In a very small number of cases, it is possible to impose a sentence of 12 months, but those cases are classified and are very limited. An example would be possession of a Class A drug. So there is a real limitation on the sheriff's powers at the summary level. One complaint is considered to be a set of continuous offences. So if a person breaks into a car, steals a radio and sells it, that is one complaint. The maximum power would be to impose a sentence of three months, or six months if the person has a previous conviction.
At a meeting yesterday, it was maintained that the powers include a sentence of three years. That is not true. The sheriff has that maximum power in a trial by jury. He then has the power to commit for sentencing to the High Court if he deems that his maximum power to impose a three-year sentence is not enough. Then a High Court in the Scottish courts will sentence. That tells us that in the summary jurisdiction there is a limit on the powers of the sheriff, which is not the case here. Magistrates would hear such cases and then commit for sentence to the Crown Court; so there is not even that matter of principle: that, in taking away this right, at least it is not dealing with sentencing of a very high level and there is no significant risk in terms of liberty to the accused. It is a different system, and it really is invidious to make comparisons. There are issues here which need to be untangled. I think there has been a rush to this piece of legislation. That has been unfortunate.
What about the manipulative defendant? If anything, the Government's proposals, if imple- mented, will give manipulative defendants greater opportunities to play the system than they have at present. The defendant will first be able to advance his arguments in the magistrates' court as to why he should be tried in the Crown Court. If the magistrates decide against him, he will go up to the Crown Court on appeal, and if the appeal fails, the case will go back to the magistrates' court to be scheduled for trial. The defendant would then make an application saying, "I don't want the original magistrates who heard my case because they will know about my convictions". Then you would have the problem which always exists in a magistrates' court on a trial lasting more than one day. I refer to the fact that getting people who may be bank managers, teachers and so on to come back again a month later for the next stage of the hearing, or the month after that, is always very difficult. One will certainly see delays and "spinning out" here.
On conviction, the defendant could again appeal to the Crown Court for a rehearing of the case. I really cannot imagine how you would begin to explain the yo-yo type of procedure to the general public as making sense or being an improvement. I ask your Lordships to forgive me for the time I am taking, but I want to emphasise the detail because it is in the detail that one can see the folly of this.
In my view, the most rational way of dealing with a manipulative defendant is to get a case before the Crown Court as quickly as possible. If convicted, he should be punished in line with the fullest range of penalties available under the law, taking into account the fact that he chose to avoid having the case dealt with under summary jurisdiction. This can be best achieved by sending the case to the Crown Court, whether by way of a magistrate's direction or a defendant's election, as quickly as possible. It may even be possible, if the procedures for indictable-only cases going directly to the Crown Court prove to be successful, for such procedures to be extended to these both-ways cases. I really feel that my noble and learned friend the Attorney-General must look at this again.
Finally, on the issue of race, it will be argued that the Home Office's research into sentencing--and indeed into many areas--shows that black people fare no differently from white people. Recently this was called into question. Work has recently been conducted by the Commission for Racial Equality on whether there is any discrimination against Irish people. This relates to the aftermath of a long period during which, as we know, in Northern Ireland there have been acts of terrorism. It was therefore felt that Irish people, particularly in the major cities, may have experienced discrimination. It was found that they were indeed experiencing discrimination in the courts. Certainly, they have the perception that they have experienced discrimination in the courts. A piece of research was presented at a recent conference, and if Irish people are taken out of the white component, and white people are compared with black, it will be found that there is a very real distinction between the way in which white
people and black people are dealt with in the courts at many different stages. I put that point to my noble and learned friends. I hope that they will look into this question because I feel that they are relying on very unsatisfactory research. I hope that these submissions will be accepted in the spirit in which they are intended. I have been able to draw on the assistance of Professor Lee Bridges in drawing up these submissions to this House.I do not regard myself, and I do not think that many people would regard me, as being among the forces of conservatism or as one who stands out against reform and modernisation of the legal system. I have been one of the voices most active in calling for reform of the legal system. However, I also think that it is possible to pursue reform and to achieve objectives such as efficiency in ways which are more in tune with our values and with the practical working of the system.
I heard the noble Lord, Lord Alexander, say that on occasion he has known what it is to be lonely on his Benches. I too have on occasion known what it is to feel lonely on one's own Benches; but happily it has not happened to me too often and, happily, it is not happening on this issue. There are many in the ranks of Labour Peers who are very unsettled by this Bill. There are many people in the Labour Party who are profoundly troubled and shocked by this Bill. Indeed, there are many who are sick at heart at the idea that these changes will be introduced. So I say to my noble and learned friend: think again.
I suspect that the true reason for this Bill is that the Human Rights Act is due to come into play next year and it is feared that it may take up quite a bit of time in the Crown Court. Therefore, the Government are trying to clear the way so that they are not criticised for having introduced that Act.
No one could ever think that an Act incorporating human rights provisions in this country was folly: no one with a good heart. But to start doing this in order to achieve that end is wholly inappropriate, and so I say: do think again and withdraw this Bill.
7.56 p.m.
Baroness Elles: My Lords, I would hope that all noble Lords and the noble Baroness who has just spoken would not regard this as a party political debate at all. Regardless of party politics, I think that the majority in your Lordships' House tonight agree that it is very difficult to find anything good to say about the Bill which is at present before us. The volte face, for instance, of the Home Secretary concerning this Bill is in direct contrast to his views which were stated when in Opposition. The noble and learned Lord, Lord Simon of Glaisdale, has indeed already quoted the comment made on 23rd February 1997, when shadow Home Secretary: the proposal was described as wrong, short-sighted and likely to prove ineffective.
Indeed, this is what I think the majority of your Lordships are saying tonight. That opinion is held not only by my colleagues on this side of the House but also by members of the Law Society, the Bar Council,
Liberty, Justice, the Society of Black Lawyers and others, including, I understand, the Director of Public Prosecutions. It is indeed surprising that a government which claims to be giving more freedom to the individual, less bureaucracy and less intolerance, is clamping down on a defendant's right to choose the form of trial to which he or she might be entitled under the current law, which might be helpful to his or her case: a right which has existed since 1855, as many speakers have said. That is nearly 150 years ago.It is irrelevant to claim that other countries do not give defendants an equivalent right. Those countries do not have lay magistrates to take such decisions: they are all taken by professional lawyers. That, I think, is the distinction between England and Wales and Scotland and other countries outside the traditional area of England and Wales. They do not have the lay magistrates that we have here. In Scotland, for instance, as the noble Baroness said, a decision concerning the holding of the trial is taken either by a judge or by a sheriff and a jury. Before any change might be made to deprive the defendant of his right to select a trial by jury, the lower or magistrates' court should also have stipendiary magistrates--that is, legally qualified professionals, conversant with aspects of law on which lay magistrates would almost certainly have to rely on their clerks to the court. Lay magistrates do not have, and cannot be expected to have, the experience and detailed knowledge of the judges of the Crown Courts. Figures for 1998, some of which have been mentioned by noble Lords, show, for example, that 18,500 defendants elected trial by jury, but over 47,000 cases were directed to the Crown Courts by magistrates. That comes from Hansard, Commons, for 22nd June 1999.
It is understandable that a sum of approximately £70 million might be saved annually by the hearing of more cases in the magistrates' courts. They will be heard by voluntary lay magistrates rather than by judges in the Crown Courts, but that will not ensure that justice and fairness are guaranteed. There is no guarantee that the defendants will be given the rights that they receive in the Crown Courts. Cost-cutting should be no grounds for denial of the right to jury trial, held to be a cornerstone of the British legal system.
The views expressed by Courtenay Griffiths QC of the Society of Black Lawyers also confirm the opposition to removing the right of defendants to make a choice in either-way cases. Many noble Lords have mentioned the problem for black citizens who come before the courts. Courtenay Griffiths said:
- "A fair hearing from a randomly selected panel of jurors greatly enhances the confidence that minority communities have in the justice system".
As I understand it, lay magistrates have been appointed since the 12th century. There has been some discussion as to the date, but my latest information is that they existed in the late 12th century, starting in
about 1150 or 1160. Through the years, they have performed, and still perform, an admirable and important role in the administration of justice. It may be, however, that that role should be closely examined before new powers and duties such as those in the Bill before your Lordships today are imposed upon them and before restrictions are imposed on defendants seeking a fair and just trial.8.2 p.m.
Lord Phillips of Sudbury: My Lords, at this stage of the debate I am sure it would be a mercy if I confine myself to what little bits of flesh remain on the bones of this great subject. Before I say my few words, I wish to make clear that I entirely share the sentiments of my noble colleagues in this House who have made plain their admiration for the lay magistracy. It seems to me to be the heart and backbone of our legal system. The fact that it deals with 95 per cent of all criminal cases is a measure of the huge importance of the lay magistracy. The fact that they are of the people, by the people and for the people gives them an importance and status which is not shared by other parts of the judicial system. Nothing I say tonight can be taken as reflecting ill on them.
Nevertheless, justice depends on public confidence. As many have said already tonight, there is a clear unarguable fact in all this. People choose trial by jury in either-way cases in large numbers, even though the rogues among them know full well that the sentences which would be handed out by a judge at the Crown Court will be two to three times heavier than the sentence of justices. The reason people choose trial by jury is that they have more confidence in it than in any other form of trial. It is as simple as that. It has nothing to do with whether magistrates are good or bad, it is that people believe, rightly or wrongly, whether through prejudice or enlightenment, that trial by jury is the best trial.
That public confidence and perception is made up partly of reason, partly of fact, partly of experience and partly of belief, or, some would say, prejudice. The groups who cling most strongly to that belief, who place most importance on the prospect of trial by jury are those among the poor, the socially excluded, the minority groups. They, in particular, have a perception of jury trial which makes them cling to it.
Those marginalised groups are the same groups as those from which are drawn a totally disproportionate number of accused people. They are the ones clogging our courts, the people causing trouble on our streets--not exclusively, but disproportionately. In anything that the Government seek to do, to ignore the issue of public confidence, particularly in those groups, is wholly self-defeating.
The question of reputation is of great importance. The noble and learned Lord the Attorney-General made plain that his change of heart in all this partly hinged around the fact that there would be an appeal against a refusal by magistrates of trial by jury. There has been introduced into the factors which magistrates must take into account the factor of reputation. I say
to the Government that there is subjective or private reputation and objective or public reputation. I believe that many people, precisely from the groups I mentioned, have no objective or public reputation. They are nobodies, they feel nobodies, they have little self-esteem, they cut no ice in their communities.The distinction magistrates will be called upon to make in terms of reputation, between one person before them and another, is invidious in the extreme. The noble and learned Lord, Lord Mayhew of Twysden, put it eloquently. He gave the case of his wife's inadvertence in rushing out of the supermarket and the assumption made that had she been charged she would certainly have gone for a jury trial. If under the new aegis she had gone to the magistrates and sought trial by jury and they had been considering the question of reputation, she would have gone through like a dose of salts. They would say that there was no one who had more to lose with reputation than the wife of a former Attorney-General, now a Peer of the realm.
I am sure the noble and learned Lord, Lord Mayhew, will not misunderstand me if I say that that would be complete eyewash, complete "cock", to use a good old Anglo-Saxon word. In my view, Lady Mayhew has no more right to trial by jury for shoplifting than her charlady or, even worse, the rogue and vagabond who steals apples from her apple tree. Most speakers have expressed the same view. I have absolutely no confidence in the reputation let-out.
Then there is the issue of equality before the law. We all mouth "equality before the law" endlessly. We Brits claim it as one of the great shining lights of our culture. Maybe. It is difficult to achieve equality before the law, and the noble and learned Lord the Attorney-General has the merit in this debate of knowing what he is talking about, having had a career at the Bar. It is difficult to achieve equality before the law, and most difficult with the groups I have enumerated: the poor, the socially excluded and the minorities. I shall not spend time tonight explaining why that is so; noble Lords all know that it is so. They know the problems of lack of articulateness, lack of conviction, even with their own solicitors and counsel.
I repeat; unless the system of law in this country protects those people, it will be a bad day for justice overall. To the extent to which those groups lose confidence in a system in which they already have little confidence, the problems of crime, disorder and anti-social behaviour will, in the long term, insidiously, immeasurably increase and grow.
I turn finally to abuse of process. The Government have laid great stress on the degree to which rogues exploit the system by using the either way option that currently prevails. I believe that the choice is a simple one. We must decide what is more important: to ensure that innocent men and women are not convicted or that guilty ones are. Traditionally, we have made up our minds with absolute clarity that by far the more important aim is not to convict innocent people, but the price that is attached to that is that rogues will
exploit the very bias that we have built into the judicial system. They will be good at that--and they will do it for ever.If we try to reduce the scope for potential abuse by amending the system of justice we shall end up reducing justice itself. We cannot have it both ways. If some noble Lords in this House become fed up with lawyers telling them that that is so, I believe that experience of the court system is required to understand the extent to which that crucial choice must be made. If one tailors justice to the need to frustrate the rogue one will end up with no justice.
With those few remarks--eschewing many others that I would have wished to make but knowing that they have been made eloquently by others--I revert to an earlier observation by my noble friend Lord Hutchinson. Quoting Lord Devlin, he said that the jury system was the lamp by which liberty lived. One must not always regard this as a dry, managerial measure. Justice is about feelings, convictions and beliefs. In this country our belief in the jury system is well placed. It is useless to compare us with other countries with different cultures, histories and systems--even the Scots over the Border. Clearly, in proposing this amendment the onus is on the Government. That onus is not the civil but criminal test. They must prove their case beyond reasonable doubt. I put it to the House that they have manifestly failed to do that and have not even satisfied the civil test based on the balance of probabilities.
8.12 p.m.
Earl Russell: My Lords, I never admire the noble and learned Lord, Lord Williams of Mostyn, more than when I hear him argue a bad case. He did so with great gentleness, excellent good manners and consummate skill. He put to us the proposition that this is an issue in which the wider community has an interest. I am no lawyer and speak as a member of that wider community. I therefore believe that that is the test to which I should attempt to rise.
When you hear a number of people speak in favour of this Bill, you form the suspicion that they believe it is in the wider public interest because it is not in the interest of lawyers. The noble and learned Lord himself must have been aware that he left a subliminal scintilla of thought in our minds that the wider public interest was in some way opposed to the interest of lawyers. This is where I believe we need to do a little more thinking. To my mind at least there is a presumption--rebuttable no doubt but still a presumption--that professions usually know more about how to run their own affairs than anyone else. I say "usually", but they do know a good deal more about it than other people. Even if they are in some respects wrong one cannot usually act with consummate skill when acting against one's conscience. If one believes that what one is doing is wrong, even if one is mistaken in that belief, one will tend to do it worse.
But when one comes to consider vested interests, it is not only lawyers who have a vested interest. Governments in all centuries have loved to speak as if
they spoke for the public interest and no one else did. But government also have a vested interest. Government has a collective will, culture and outlook which may on occasion operate quite as much against the public interest as the culture of any profession. That thought came into my mind when I heard the noble and learned Lord say that the Bill was intended to make the courts operate efficiently. I have been in a public service which has been made to operate efficiently. Here I declare an interest. When it comes to "work efficiently", to make the division according to Whitehall-speak, it ceases to operate effectively, because of course in Whitehall-speak these are two quite different things.For some reason in any century people have tended to love the law and hate the lawyers. As a psychological phenomenon it is of great interest and needs more learned academic study than it has yet received. I believe that this reveals two points: first, that people cannot accept the idea that justice, which they believe to be a right, must be paid for. It has a price no matter who pays it. I believe that that is a thought which people resist. Secondly, a great many people cannot accept the idea that justice may, and very often does, hang on a technicality. So I believe we should forget any thought of welcoming the Bill because the lawyers do not like it. On the whole, they are more self-critical as a profession than any other with which I have dealt while I have been here, and for that I believe that they deserve respect.
However, as a member of the public I have interests in other aspects of the criminal justice system. I like it to be cheaper and quicker whenever possible but, when I wonder whether it will be, I find the arguments of the noble Lord, Lord Cope of Berkeley, extremely persuasive. But it matters a great deal more to me to consider whether judgments reached by the criminal justice system are likely to be right; even more, whether members of the public are going to believe that those judgments are likely to be right. The belief of the public that people condemned in the courts are, or are likely to be, justly condemned is perhaps the most important asset that a criminal justice system can have.
In 1637, the Earl of Strafford, watching people feting Prynne round the pillory, remarked:
- "A prince that loseth the force and example of his punishments loseth withal the greatest part of his dominion".
We are told that acquittals in magistrates' courts and Crown Courts run at 25 per cent and 40 per cent respectively. I do not know which if either of those figures is nearer to the truth, and I shall not make an argument on that basis. The argument on which I rest is that I know which mistake I would rather make.
I must confess that, like other noble Lords, I was a little worried about the way in which the noble and learned Lord talked about a man with eight previous convictions for shop-lifting and assumed that he must be abusing the system if he elected trial by jury. At least
the noble and learned Lord gave that impression. If the noble and learned Lord wishes to say that that was unintended I shall be delighted to take his intervention and have it in the record.
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