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Lord Warner: My Lords, I am grateful to the noble and learned Lord. If he had waited a little longer, I would soon have come to that point. In some of the cases, there is a strong suspicion that the accused elected for trial by jury so that their lawyers had time to secure lesser charges to which they could plead guilty--

Noble Lords: Oh!

Lord Warner: Well, come on. They could then gain a more lenient sentence. Nine out of 10 of the convicted people who elected for trial at Crown Court had previous convictions, as my noble and learned friend the Attorney-General--

Lord Thomas of Gresford: My Lord, does not the noble Lord appreciate that often there is overcharging, particularly with the ethnic minorities in this country? People are charged with offences which are way above the conduct they have committed. What happens at the Crown Court is sensible discussion and negotiation. A basis for plea is worked out between the prosecution and the defence which enables the judge to pass a proper sentence for that which the defendant has done. I wonder whether the noble Lord has any experience at all of the courts since he talks so freely about our speaking in rhetorical terms about jobs we have done for 30 and 40 years.

Lord Warner: My Lords, I am grateful to the noble Lord. I shall turn later to the issue of defendants from the ethnic minorities. He expressed more elegantly some of the facts that I was putting more crudely. I want to put on the record that nine out of 10 convicted people who elected for trial at the Crown Court had previous convictions. That is a fact. It is not a matter of opinion; it is a fact. One third of them had more than 10 convictions.

We are talking about only 15 per cent of those who elected for trial by jury being acquitted. That is fewer than 3,000 a year. I accept that there may have been discussions which led to a lesser charge and a plea of guilty being secured. That does not alter my argument that there was a case for electing for trial by jury in

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order to secure that outcome. It seems that the noble Lord acknowledges that in his daily practice that is a feature of life in the criminal court.

Lord Thomas of Gresford: My Lords, it is a feature in the Crown Court; it is not a feature in the magistrates' court. That is the point. There are experienced counsel who can arrive at a proper conclusion.

Lord Warner: My Lords, I do not accept that the noble Lord has made a point which destroys the factual argument I have tried to put forward. Perhaps I may continue to run the argument. Many of us sat patiently while the noble Lord expressed his arguments and did not intervene quite so often. We are not in court now.

There may be some who believe that magistrates may become power-crazed under these measures and keep more and more inappropriate cases to themselves. The facts are that in 1998 magistrates directed 47,000 either-way cases to the Crown Courts, far more than elected for trial by jury. Just in case some magistrates get delusions of grandeur, the Attorney-General has explained the appeal mechanisms that will be put in place.

I want to turn to the question of whether people from ethnic minorities--

Baroness Kennedy of The Shaws: My Lords, I wonder whether I may ask the policy adviser to the Home Secretary: were you one of the people who gave this advice to the Home Secretary? Was this your idea? Am I allowed to ask that question?

Lord Warner: My Lords, I am afraid that the noble Baroness is not allowed to ask that question--

Noble Lords: She is!

Lord Warner: My Lords, she is allowed to ask it, but I do not have to answer it, if I may say so.

Lord Wigoder: My Lords, the noble Lord could elect to answer it.

Lord Warner: My Lords, I might elect to answer it, but I suggest that I am entitled to behave in exactly the same way as does the noble Baroness, Lady Kennedy, and many noble Lords in protecting client confidentiality in these matters.

I want to turn to the question of whether defendants from ethnic minorities will be disadvantaged under the legislation. I must confess that this is one aspect of the proposed change that has troubled me. I was concerned that its possible impact on defendants from ethnic minorities might cause me some problems of conscience in supporting the Bill. People whose judgment I respect have expressed concerns to me.

However, I have looked carefully into the aspect and I can find no evidence that black defendants get a raw deal in magistrates' courts. I do not believe that many of the arguments about whether the police produce

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more charges in relation to ethnic minorities is germane to the Bill. The point at issue is whether they would get a more raw deal in magistrates' courts. I suggest that there is no evidence that black and white male defendants are sentenced there any differently and there is good evidence from mid-1990s Home Office research to show that.

Baroness Kennedy of The Shaws: My Lords, I am sorry to intervene. Has the noble Lord looked at the question of whether the presence of white Irish accused might be distorting those figures?

Lord Warner: My Lords, I am well aware of that evidence, but I believe that there is an excitableness about many Members of this House who come from a criminal law background. It would be nice if one could continue the flow of the argument for a little while as some of us who do not come from that elegant background have sat patiently and listened to many of their arguments when we have not agreed with them.

I am aware of the evidence that the noble Baroness mentioned. I listened carefully to her speech. However, if I may be allowed to continue, I was about to say that I believe that the House will find that new Home Office research to be published soon will show that in magistrates' courts there is a higher conviction rate among white defendants than among those from ethnic minorities. Another so far unpublished study will show that the acquittal rate for black defendants is higher in magistrates' courts than in Crown Courts.

I have not been able to find a shred of evidence that if more either-way cases were tried in magistrates' courts as a result of the Bill, defendants from ethnic minorities would be disadvantaged. I suggest that the evidence points in the other direction. It would be helpful if my noble friends on the Front Bench could try to make some of that evidence more readily available so that we do not have the kind of scaremongering arguments about the Bill damaging the position of people from ethnic minorities if more cases were tried in magistrates' courts.

I shall not weary the House with a list of those who have spoken in support of changes akin to the proposals in the Bill. However, I want to mention the Lord Chief Justice and Sir Iain Glidewell in his review of the CPS. They are not viewpoints which, in my short time here, I have seen noble Lords lightly cast aside. It is worth recalling that Sir Iain Glidewell confessed that he had changed his mind on the issue after studying it further and looking at all the facts.

My right honourable friend the Home Secretary, in his characteristically honest way, has acknowledged frankly that he has done the same. He is entitled to be congratulated on that, as is Sir Iain Glidewell, who chaired the review into the CPS. I should encourage many noble Lords who have spoken today with great flair, energy and conviction, to show some of the same maturity as the Home Secretary and Sir Iain; to look at the facts a little more dispassionately; and to set aside some of the institutionalised behaviour so widely demonstrated today.

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8.39 p.m.

The Earl of Onslow: My Lords, if I were the noble and learned Lord, Lord Williams of Mostyn, I should be rather depressed by the quality of support I had had from my own Back Benches.

The noble Lord, Lord Warner, was bowled just about the fastest ball that has ever been bowled in this House, by the noble Baroness, Lady Kennedy. We have just introduced into the criminal law the concept that if someone refuses to give evidence, the judge may draw that to the attention of the jury to extract what conclusion they can from it. It seems to me that we should do well to draw conclusions from the eloquent silence of the noble Lord, Lord Warner, as opposed to his ineloquent speech.

Lord Warner: My Lords, I must put my position quite clearly. I refuse to say what advice I may or may not have given to the Home Secretary as a policy adviser, which is quite proper for me to do. The noble Earl is not in any position to draw the inference which he has drawn. I am not going to expand any further, but I believe that he is misleading the House by drawing the inference which he has drawn from my silence.

The Earl of Onslow: My Lords, I am not misleading the House by drawing that inference; I am simply drawing that inference. I am sorry, but that is the inference which I have drawn, and I believe that other noble Lords may have drawn exactly the same inference. It is interesting also that the noble Lord said, "I am data rational". I suggest that data rationality has no soul. Justice has soul. It is quintessential to this country.

During a Division in March 1994 I was trooping through one of the Lobbies--I cannot remember which--to vote against my right honourable friend Mr Michael Howard. I believed that he was introducing illiberal measures into the Criminal Justice and Public Order Bill, and I still believe that he was doing so. Mr Straw spoke eloquently against some of those measures, but then changed his mind. The noble and learned Lord, Lord Williams, and I came, I believe, through the same Lobby, and I said to him, "Do you know, whoever wins the next election, Michael Howard's soulmate will still be Home Secretary?" Unfortunately, that has happened.

I notice also that in the Bill, under the heading, "European Convention on Human Rights", the noble Lord, Lord Bassam of Brighton, has made the following statement:

    "In my view the provisions of the Criminal Justice (Mode of Trial) Bill [H.L.] are compatible with the Convention rights".

All I can say to that is, "Oh does he?" Taking away the right to trial by jury is not necessarily compatible with the concept of human rights.

I have immense respect and a really genuine liking for the noble and learned Lord, Lord Williams of Mostyn. I have seen him do something today which I believed was almost impossible. He made a speech which could be classed as an insincere version of

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Michael Howard. I know that the noble and learned Lord is a liberal and that he likes justice. I have heard him wax serious on the subject. What on earth has he got into with this Bill? It is taking away ancient rights from a system of justice which has done nothing but improve since Ethelred the Unready founded the jury system before the Conquest. Assizes followed; then Magna Carta, habeas corpus and quo warranto--that marvellous sweep of English liberty and justice for which we are deeply, emotionally and permanently grateful and which we should lay down our lives to protect, as people did from 1939 to 1945, because it is of such grandeur.

The Bill has been demonstrated by some of the best legal minds in the country to be a shabby, grubby reduction of the liberty of the subject. The idea that the noble and learned Lord, Lord Williams of Mostyn, should take away what Ethelred gave to us sticks in the craw.

8.44 p.m.

Lord Carlile of Berriew: My Lords, I hope that your Lordships will allow me the indulgence of the four minutes available, as I understand it, under the gap convention. As so little time is available, I shall not fall into the lawyer's habit of repeating of what other lawyers have already said.

Nor shall I criticise the noble and learned Lord the Attorney-General for changing his mind. I have known the noble and learned Lord for long enough to be able to say with admiration that, as one would expect from Ffynnongroen's most distinguished son, he can change his mind with exquisite skill and estimable frequency without for one moment needing to boost his credibility by donning the spangled pants into which my noble friend Lord Thomas tried to put him.

The right to trial by jury for specific offences is not, in my view, fixed in tablets of stone. I am genuinely open minded as to whether there might be a need for change. Having said that, in order to be persuaded, in common with other commentators, I should require evidence beyond reasonable doubt of three matters. First, I seek proof that the jury process does not provide a fairer trial than the magistrates' court. I asked a question of the noble Lord, Lord Mackenzie of Framwellgate. With great respect to the noble Lord, I believe that he knew the answer. A policeman who is putting forward a false case would far rather put that case forward to a bench of magistrates than to a jury. I suggest that that is evidence that the jury process is fairer than the magistrates' court process.

It is astonishing that the Bill has been presented to the House without any evidence or even any research whatever, save for a little which is founded on anecdote. I say to the noble Lord, Lord Warner, that as a policy adviser sitting in the Home Office he is of course entitled to keep his own counsel. However, he has chosen to come to this House this evening. Having chosen to expose himself in debate in this House, he should expose the whole of himself, warts and all. We should know and see the full monty in response to the noble Baroness's question.

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Secondly, I require proof beyond reasonable doubt that the change commands public confidence. The analogy of the noble and learned Lord the Attorney-General with the breathalyser provisions is of course completely specious for at least two reasons. First, when the right of trial by jury for Welsh farmers and others charged with breathalyser offences was removed, something which was originally regarded as a serious interference with personal liberty had come to gain wide public acceptance. Secondly, breathalyser offences required no proof of criminal intent, which is classically a jury issue. Therefore it is a quite different set of circumstances and a totally false analogy.

There is absolutely no evidence of public acceptance of the proposals. Such evidence as can be drawn from the press and the academic world is almost all to the contrary. Apparently the noble Lord, Lord Warner, is able to produce something from somewhere in a cupboard, but it certainly has not filtered into the minds of Members of this House.

A third point should be addressed. When the Government talk of savings of £105 million, it would be nice to know whether they have built in the cost of the extra miscarriages of justice. My time is up; many more points could be added. But, without proof from the Government that this is a good measure, we should not accept it.

8.49 p.m.

Lord Dholakia: My Lords, there has rarely been a difference of opinion between the Attorney-General and myself on matters relating to the criminal justice system. I have followed his distinguished career with great interest, from his early days on the Bar Council. If on this occasion I disagree with him, please remember that he has changed his mind, albeit with the provision for an appeal mechanism, while I have maintained my position.

We have heard many important speeches for which your Lordships' House is the richer. There has been a tendency to complain because lawyers have dominated the debate. We should be grateful to them because no one can speak with greater authority than lawyers because they have day-to-day experience of what happens in our courts. On that point I fully endorse the views expressed by the noble Earl, Lord Russell.

I thank the Attorney-General for facilitating the meeting yesterday with the Home Secretary.

Since 1974 the mode of trial issue has surfaced on a number of occasions in Parliament. The idea has been dropped because it has failed to command support. Today's debate is no exception. Speech after speech has confirmed that there is an informed opinion in your Lordships' House that does not accept the Government's case.

I endorse what the noble Baroness, Lady Elles, said. Quite rightly, she cited a number of warnings. The Law Society, the Bar Council, the Black Lawyer's Association, Liberty, Justice, the Legal Action Group have all expressed concern about the diminution of the defendant's rights in certain cases. When the practitioners protest we should listen with great care.

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The reality of the Government's proposal is that about 18,000 defendants a year--there is no dispute about that figure--would lose their right to a trial by jury. The Government's decision requires a number of clarifications. Unlike many, I do not object to the fact that the Home Secretary, when in opposition, said that such a reform was short-sighted and likely to prove ineffective. He is entitled to change his mind. However, are we not entitled to ask him whether he is driven by financial considerations and whether he has taken into account matters of civil liberties and the rights of individuals which have been established since 1855? Speaker after speaker has posed those particular questions. I am sure that the Attorney-General will want to deal with them. If money is the basis of our system of justice, that strikes at the heart of our democratic process.

The argument that no other country has a system similar to that in England and Wales, where in certain cases defendants can elect to be tried by a jury, does not mean that it is correct to remove that right. Scotland was cited as an example of a country where there is no ability to elect to go to trial, but the prosecution decides the venue. I am grateful to the noble Baroness, Lady Kennedy, for her contribution on that point.

I go a stage further. In Scotland the choice is between summary trial before a professional judge--the sheriff--sitting without a jury, while here the vast majority of summary trials are before lay magistrates. Also in Scotland, once a decision has been made to try a case summarily, there are strict limits on the length of sentence that can be imposed. The proposal here is to remove the right of election from defendants, but for magistrates to retain their power to commit certain defendants, once convicted, to the Crown Court where they can receive longer sentences. Recent figures show a marked increase in the use of that power by magistrates. That is unacceptable.

The argument is advanced that the change is designed to end the abuse of the system which leads to delay, a waste of resources and a prolonged wait for justice. The number of cases in which the defendants elect to have trial by jury has been falling. We have been told that again and again. That has happened over the past 10 years. It is not a growing problem. Of course, there are cases where the system is abused, but that does not mean that the right should be removed from others. That is the wrong way to go about it.

There are cases which affect the livelihood, respect and dignity of individuals. We have heard some good personal examples of such matters. How will the new appeal system work in cases where the decision of the magistrates' court not to allow trial by jury is contested? We are now told that legal aid will be available for such an appeal. Will the appeal system simply create a new bureaucratic process which will diminish the aim of simplifying the justice system? What costs will be involved in such an exercise? I can foresee 18,000 cases a year in which people could, effectively, appeal.

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I have served as a magistrate for a long time. I have also been involved in the training of magistrates and I am still invited to contribute at training courses, particularly on issues relating to race and the courts. The noble Lord, Lord Mackenzie, stated, in effect, that my noble friend Lord Thomas of Gresford had been less than kind to magistrates. As a magistrate I was comfortable with what my noble friend had to say. However, there is a perception in the community-- I speak as a magistrate and as a member of the Board of Visitors, having visited prisons again and again and met people who are serving sentences--that magistrates are more likely to believe police officers than defendants. I draw no analogy from the background of the noble Lord, who was a police officer.

The vast majority of defendants elect for trial in a magistrates' court. Nobody disputes that. I had hoped that the Government would produce evidence that the right of election for trial by jury is widely abused. It is evident that defendants and their legal advisers use the process selectively. Do we base our argument on people in prison on remand awaiting trial? What statistical information is available that the increase in the remand population is a direct result of mode of trial in either way offences? I have searched for information on that and I have found none.

Often the argument has been put forward by those who support the abolition of the right of election that the majority of those who exercise that right eventually plead guilty. Again, I have searched for statistical information on that point. Where is the evidence?

One matter that often puzzles me as a magistrate is that, despite our powers on sentencing, far more defendants--often unnecessarily--are sent to the Crown Court by magistrates than by way of defendants' elections. I am often surprised that in the majority of such cases the Crown Court ends up imposing a sentence that could have been imposed by the magistrates. Would it not be wise to carry out a proper study of that aspect before putting all the blame on the delays, the remands and the abuse often attributed to defendants?

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