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Baroness Scotland of Asthal: Just so that I understand what the noble Lord is bringing back on Report, will he confirm that he is saying that in no circumstances whatever could a decision that would include a disqualified person under the clause ever be taken?

Lord Goodhart: My view is that the chances of that are extremely remote. Although not impossible, they are so unusual that it is clearly in the public interest simply not to require applicants to set aside cases to prove an apparent lack of independence and impartiality. By far the simplest, cheapest and best course is to say that all cases that fall into the category—frankly, there will not be many—will be set aside if challenged. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 36 agreed to.

Clause 37 [Effect of Act of Settlement on existing justices of the peace]:

On Question, Whether Clause 37 shall stand part of the Bill?

Lord Donaldson of Lymington: Can the Minister tell the Committee what happened on 31st January 2002? I presume that foreigners who were made magistrates before that date are all right, but those appointed afterwards are not.

Baroness Scotland of Asthal: Prior to 31st January 2002 a number of people born outside the UK but resident here applied to become magistrates. They were appointed on the recommendation of the Lord Chancellor's advisory committee on justices of the peace. It was subsequently discovered that persons born outside the UK, the Commonwealth or the

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Republic of Ireland should not have been appointed because that would infringe limitations established in the Act of Settlement 1700 on those who would hold office under the Crown. On 31st January 2002 those magistrates were all suspended from sitting.

Lord Donaldson of Lymington: I am obliged. I thought that the situation had been put right so that foreigners could now be magistrates. Thank you very much.

Clause 37 agreed to.

Clauses 38 to 40 agreed to.

Schedule 3 [Pre-trial hearings in magistrates' courts]:

Lord Thomas of Gresford moved Amendment No. 71:

    Page 68, line 2, at end insert—

"( ) A party to the case may appeal to the Crown Court against a ruling made under this section."

The noble Lord said: We move into the third part of the Bill dealing with criminal jurisdiction and procedure in the magistrates' courts. Clause 40, upon which Schedule 3 depends, relates to rulings at pre-trial hearings in magistrates' courts.

I am not over-enamoured with pre-trial hearings as they presently exist in the Crown Court. There are two types: the preparatory hearing in which the decision of the judge stands but may be appealed to the Court of Appeal; and the pre-trial hearing in which the judge makes a ruling that he may alter in the course of the hearing on a further application being made or by reason of his own volition.

I find that there is a great waste of time, effort and expense in such pre-trial hearings. Last year I had a case for which there was a preparatory hearing: a judge ruled a video admissible; the case went to the Court of Appeal where it was considered at length; it went back for the trial with the video admitted and the defendant was acquitted. The trip to the Court of Appeal and the day spent in the preparatory hearing were a waste of time.

On Tuesday last week there was a pre-trial hearing in which an application was made by the Crown to strike out the defence as though it were a civil case. Of course, the judge had to make findings of fact that he could not make because there was no evidence before him, so there was a completely useless hearing on that.

I turn to the schedule and consider it in the light of those experiences. It extends pre-trial hearings to the magistrates' court. I believe that such a hearing is justifiable only when there are questions as to the admissibility of evidence. In a magistrates' court there has always been the problem that the justices can look at a piece of evidence, rule it inadmissible and then they hear the case, having to forget everything that they have heard in relation to the evidence that has been ruled inadmissible.

There is a case for one set of magistrates to rule on admissibility providing—as Amendment No. 72 mentions—another set of magistrates hears the case. Any other question of law relating to the case is to be the subject of a pre-trial hearing. The Government

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should consider that carefully. Any question of law may be brought before the magistrates at a pre-trial hearing. In the ordinary course of events they continue to hear the case; it is summary trial. If in the course of the case on a question of law they make a ruling that is inopportune or wrong, that can be appealed by way of case stated to the Divisional Court. If the defendant is acquitted the matter does not arise.

It appears to me that the Bill introduces into the system an unnecessary additional burden, that any other question of law can be part of the pre-trial hearing. If that is the case, before the main trial starts it is right that there should be an opportunity to appeal that original decision. Then we are back where we were in the case in which I was involved last year: one wastes time in a pre-trial hearing, one goes to the Court of Appeal and the person is acquitted in the end anyway in what is supposed to be a summary process.

I disagree with those who support Amendment No. 71A in that a ruling at a pre-trial hearing should be taken on a case stated to the Divisional Court. That is hugely expensive, a waste of time for the Divisional Court and it seems to me that if we are to adopt a procedure whereby any point of law can be the subject matter of a pre-trial hearing, and there is to be an appeal, it should go straight to the Crown Court to be dealt with. That would be much more sensible. That is why we put forward Amendment No. 71.

I must make it clear that I believe that the Government should consider carefully whether it is worth while bringing in to the magistrates' court hearing all the paraphernalia that has existed in the Crown Court and that has not, in my view, operated particularly successfully. It appears to be a good idea—let us clear everything out of the way so that when we come to trial it will not take long—but in summary procedures it is just an additional hearing. As a member of the Bar, I should not complain about that as the more satellite litigation that is passed by Parliament the better, and the more we earn. But in the interests of the public, such pre-trial hearings should not be extended on any matter of law. I beg to move.

Baroness Anelay of St Johns: In speaking to Amendment No. 71, moved by the noble Lord, Lord Thomas of Gresford, I shall speak also to amendments in the names of my noble friends, Amendments Nos. 71A and 72.

I listened carefully to what the noble Lord, Lord Thomas of Gresford, said. He has experience at the coal-face of criminal law. He has been through the mill in relation to pre-trial hearings. He is not too enamoured of them and he has given his reasons. In the light of that he is right to table his amendment.

I have problems with Amendment No. 71. It is novel. It creates the right of appeal on matters of fact and matters of law to the Crown Court prior to conviction. My questions to the noble Lord, Lord Thomas of Gresford, which I would be grateful if he would address once the Minister has spoken, are as follows: does he expect that the judge would sit alone or with justices and would there be an appeal to the

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Divisional Court thereafter? I wonder how it will work. I quarrel not with the right of appeal but with whether it should be to the Crown Court. That would not be consistent with the rest of the current legal process where the Crown Court has jurisdiction to hear an appeal from the magistrates' court only where there has been a conviction.

My Amendment No. 71A is a probing amendment to provide an alternative route to that proposed by the noble Lord, Lord Thomas. It proposes that a more appropriate route would be to the Divisional Court of the Queen's Bench Division. I heard what the noble Lord, Lord Thomas, said about that being expensive and a waste of time; it depends what one considers to be a waste of time considering the result of a case.

Surely at the preliminary hearing in a magistrates' court the matters at issue will be matters of law, not fact. The noble Lord, Lord Thomas, referred to inadmissibility of evidence. If there are contested matters of fact I could understand why the Crown Court might be seen as the more appropriate tribunal to hear the appeal.

If an appeal is to be taken from the decision of a magistrates' court on the admissibility of evidence, surely it will happen before any decision is taken as to the guilt or innocence of the accused. Since there is not yet a decision on the facts—unless we are talking about an attempt to exclude evidence on a voir dire—there are problems with Amendment No. 71. Since the decision will be on matters of law, it would be more appropriate for the appeal to go to the Divisional Court, which is the more usual court to hear an appeal on a matter of law from a magistrates' court or the Crown Court when exercising its appellate jurisdiction in relation to the decision of a magistrates' court.

The noble Lord, Lord Thomas, referred to Amendment No. 72. I tabled it to deal with admissibility of evidence, but we have got to the core of that matter so I shall not repeat what he said. But I have a worry that where the magistrates who sit in judgment on a defendant when the case is heard have knowledge of evidence that would not be admitted at the trial itself and that may be prejudicial to the defendant, it would be difficult for them to set aside their memory of that evidence.

The Minister might say that at a trial hearing the same magistrates would not be empanelled to sit on the Bench as had been empanelled to hear an application at a pre-trial hearing. If we had a 100 per cent guarantee of that, the problems we are talking about would not arise. It may be good practice in magistrates' courts administration that the same panel of magistrates would not be empanelled, but there is no guarantee of that.

That problem does not arise with pre-trial hearings in the Crown Court because the judge who hears the application is not both the jury and the dispenser of sentence in the court. The Bill has raised a novel problem; the noble Lord, Lord Thomas of Gresford,

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proposes a novel solution. I have thrown another pebble into the pond which I hope we will sort out either now or before Report stage.

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