Criminal Justice (Mode of Trial) Bill [H.L.]

Part of the debate – in the House of Lords at 4:30 pm on 20th January 2000.

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Photo of Baroness Mallalieu Baroness Mallalieu Labour 4:30 pm, 20th January 2000

I have no doubt that the motives of the Government in introducing the Bill in its present form are good. To try to save money in the criminal justice system is laudable, provided, of course, that it is not at the expense of the quality of justice which the system can deliver. It is also desirable, from everyone's point of view, that delay is reduced to the minimum for both witnesses and the accused. It is also right to try to reduce the prison population for those on remand in custody and those sentenced to longer terms than are necessary. Yet I cannot support the Government over this measure and I shall support the amendment.

As a criminal lawyer of 30 years, my day job is the conduct of criminal trials, mainly in the Crown Court, but occasionally still before magistrates. Magistrates have changed immensely for the better over the years in which I have practised. They are better trained. They are drawn from a wider range of backgrounds. They are no longer all middle class, middle aged and white. Gone, indeed, are the glaring examples of bias and unfairness which I remember from my early years, such as the chairman of one of the West London Benches who was heard to say to a defendant, "We think there is a doubt in this case but you're not having the benefit of it".

Most of those who appear before our courts today are young men. There are very few young men on the Bench. Despite every encouragement there are still relatively few representatives of the ethnic minorities on the Bench, and still fewer from poor or deprived backgrounds. Most magistrates inhabit a different world from those who appear before them. It is not surprising, therefore, that, given the choice, a defendant will say, "I want my case to be tried by people like me; people who will understand my language; people who will understand the situation I was in because they, or their families, have had similar experiences"--and that means a jury, not a stipendiary magistrate, a trained lawyer, or even lay justices.

The truth is that the jury system has the confidence of ordinary people because they believe that it is the fairest system of trial. If I were accused of an offence which I had not committed I would want to be tried by a jury if at all possible, and I would know that I would have a substantially higher chance of being found not guilty. I would want 12 minds to look at the evidence and 12 fresh minds, not one, two or three people who had already heard many similar cases. As a lawyer, that is the advice I would give in almost every case where I considered my client had a good defence.

There is also the strong public perception--I accept that it may not be true--that you are likely to get a fairer trial before a jury than before magistrates; and public perception cannot be disregarded in relation to public confidence in the judicial system.

The fundamental flaw in the Bill, as the noble Earl, Lord Onslow, said, is that it proposes to seek to award trial by jury as a prize only to those who the court decides are persons of standing, reputation, substance and in employment--in other words, only those who the court considers have a lifestyle, a history or prospects which justify it, and to award them one system of justice, and to the others, to those whom the court regards as of little or no account, a second, lesser system.

Equality before the law is a principle which I believe should never be sacrificed if we can possibly avoid it. We would all, I think, agree that one law for the rich and one for the poor is wrong. But so, surely, is one mode of trial for the deserving and another for those of little consequence. That is just as wrong.

A distinction as to the mode of trial is properly made by Parliament in accordance with the nature of the offence. Parliament has already decided that many offences--some of them, as the noble and learned Lord the Lord Chief Justice said, with serious consequences for the convicted--should not qualify for jury trial. But the Bill proposes to make that distinction, not according to the type of offence to apply equally to all those charged with it, but according to the nature of the accused person; who or what he is. That is my fundamental objection, but it is not my only concern.

Concern has rightly been expressed for witnesses, but I am troubled that witnesses, far from benefiting from the changes, may find that quite the reverse is true. At present, a witness goes to the Crown Court to give evidence only once unless there are exceptional circumstances. If the Bill became law, it would see an increase in witnesses having to go through the whole process twice because there is an automatic right of appeal by way of a complete re-hearing in the Crown Court afterwards with no leave being required, as it is on appeal from the Crown Court. As the noble Lord, Lord Cope, said, it replaces two steps, one of them a short and simple one, with four steps, two of which will undoubtedly require argument and possibly evidence, and two of which will involve a complete hearing.

A reduction in the prison population could be far more effectively brought about by strong guidelines to magistrates in relation to discounts in sentencing for those with whom they deal and, possibly, by consideration of some restrictions on the right of magistrates to commit for trial those who have either pleaded or been tried before them. It seems to me a great pity that just at a time when Lord Justice Auld is about to start on a review of the whole system of criminal justice, that matter has not as yet been included. I hope that it will be.

My noble and learned friend Lord Williams may be right in saying--as may be my noble friend Lord Lipsey--that that measure would result in a reduction in costs, but I believe that such a reduction would be at a cost to the quality of justice and public confidence in it, which is a far greater price to pay. I was sent to the House specifically that I might speak on criminal justice matters. Had I not spoken as I have today--it gives me no pleasure to speak in opposition to my Government--I feel that I should not have fulfilled the terms of the oath that I took when I came here.