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

Part of the debate – in the House of Lords at 4:45 pm on 20th January 2000.

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Photo of Earl Russell Earl Russell Liberal Democrat 4:45 pm, 20th January 2000

I listened with interested to the noble Lord, Lord Lipsey. I take the point that he makes about absolutes. I take the point the point that he makes about considering costs. Those are real questions, but when they are posed, I listen with care to hear what overwhelming argument is put into the other side of the scale; to hear what reason is given for sacrificing things to which--I believe that it is common ground--many noble Lords on all sides of the House are attached.

It is precisely on the ground of the overwhelming justification of the measure that I found the Government's arguments so far wanting. I heard an argument about cost, which is conjectural. The noble Lord, Lord Cope of Berkeley, has said many things about it which I find persuasive. I should be interested, if we are to hear more of it, to hear exactly how those costings are put together. How much is assumed to be the cost of each Crown Court case? How much is assumed to be the cost of each magistrates' court case? Like the noble Lord, Lord Lipsey, I speak as one who is not a lawyer; as one who is interested only in the conduct of justice.

I heard also an argument about delay, which again is a real argument although it is not an insuperable argument. Again, having listened to the noble Lord, Lord Cope of Berkeley, I believe that the argument about delay is at best conjectural. I have not heard in any clear form an argument that the Bill will in any way improve the quality of justice. We can make that assumption only if we assume that an increased rate of conviction involves better justice. I find that argument extremely difficult to reconcile with the presumption of innocence. I understand that many of those who at present elect for trial by jury have previous convictions. The question is on what side of the argument that evidence points. I accept that people with previous convictions may be more likely to be guilty, but they are also more likely to be wrongly accused. They too have rights and their rights must rest in a presumption of innocence until their case is heard.

The noble Lord, Lord Lipsey, touched on the point--which we have heard before--that 60 per cent of defendants who elect for trial in the Crown Court plead guilty. First, the statistical base of that study is flawed. It rests on the study of those convicted in Crown Courts--not of those tried in Crown Courts, but those convicted. Therefore, it immediately takes the 40 per cent of acquittals out of the equation. That alone changes the evidence very considerably indeed. Secondly, it leaves out all those who plead guilty on a lesser charge than that of which they were originally accused. It has been argued by many people who know much more about the criminal justice system than I do that there is, especially in relation to ethnic minorities, a consistent overcharging at many stages of the judicial process. The process of putting that right may well lead to pleas of guilty on a lesser charge, but that may actually be the doing of justice which, without the possibility of a full hearing at the Crown Court, might not have been done.

The noble Lord, Lord Lipsey, touched also on the question of whether black defendants are more likely to be convicted than white. I recently listened to Mr Imran Khan, solicitor to the Lawrence family, discussing precisely that question on "Newsnight". He was entirely certain that black defendants face a greater prospect of conviction unless they have the chance of hearing by a jury. First, Mr Imran Khan's livelihood depends on giving correct advice to his clients on precisely that question. Secondly, many of those who have disbelieved Mr Imran Khan have lived to regret it. Here we reach the point most vitally conceded by the noble and learned Lord, Lord Bingham of Cornhill, in reply to my noble friend Lord Hutchinson of Lullington. The noble and learned Lord conceded that there may be a perception that jury trial is the fairer, even if that perception may not be justified by the facts.

That was a vital concession, because we are concerned here not only with the actual doing of justice, but with what is perhaps of equal importance: the reputation of the criminal justice system itself. It is not only defendants who enjoy a reputation. If the public do not believe that most of those convicted in court are guilty, the force of the condemnation in court itself is greatly diminished. As the Earl of Strafford remarked in 1637,

"A prince that loseth the force and example of his punishments loseth withal the greatest part of his dominion".

Here I return to the point about black defendants. A great many black defendants believe that where they are heard by a jury, their own community is involved in the process. It is precisely that sense of being involved in the process which the jury system gives us. It is that which leads, in a great many cases, to a consent being given to a condemnation by a jury which would not have been given to a condemnation by a magistrate, even if that condemnation were in fact justified.

What we are dealing with in this Bill is more than simply justice, big though that is. It is the interaction between government and the governed. Since Second Reading I have received a paper prepared under the chairmanship of the noble Lord, Lord Warner. It is the paper of a committee appointed by the Government and reporting on the need to involve citizens in the activities of their community. I congratulate the noble Lord, Lord Warner. The paper is extremely impressive. I go along with the whole of its argument. The need for interaction between government and citizen and the need for involvement in the sense of community by participation are vital to government by consent. I agree with all that the noble Lord says about the need to encourage it.

But if these are our priorities, why throw away, or even diminish, an involvement of the citizen in a process of justice which is perhaps the longest lasting such form of participation we have? I shall not go on about Magna Carta. The noble and learned Lord the Attorney-General is right in saying that it has nothing to do with the present argument. But the participation of subjects in juries is a great deal older than Magna Carta; it has gone on for over a thousand years. To have continued for that length of time and to have aroused the enthusiasm shown for it by the noble and learned Lord, Lord Ackner, and the noble Baroness, Lady Kennedy of The Shaws, there must be something to be said for such a system.