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

Part of the debate – in the House of Lords at 5:00 pm on 20th January 2000.

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Photo of Viscount Tenby Viscount Tenby Crossbench 5:00 pm, 20th January 2000

I did not speak at Second Reading, bowing to the, alas, increasingly rarely observed convention in this House that one does not speak in a debate if one cannot attend for the duration of the proceedings. Accordingly, with the exception of two noble Lords from the Government Benches and, of course, the noble and learned Lord the Attorney-General, there was no counter at that time to the attacks on the Bill. Fortunately, today, with the distinguished intervention of the noble and learned Lord the Lord Chief Justice, matters have been redressed slightly. There is no way that I could mistake him for the late Lord Goddard. However, from where I stand, he bears a remarkable resemblance to the US Seventh Cavalry!

A good deal of heat was generated at Second Reading, sometimes, one might think on reading Hansard, without the common sense and fairness which characterises debates in this House. I have to say that some of the speeches also displayed a certain lack of perception about what goes on in the lower courts. I do not doubt for one minute the genuine view of those, particularly on the Liberal Democrat Benches, who have been consistent in their opposition to this measure since it was first mooted by a Conservative government and for whom this is a step too far. However, some of the arguments advanced are scarcely sustainable. And since this is a wrecking amendment, which, if successful, may prevent the Bill being discussed in the other place--not a very democratic concept, one might think--I feel that it is only right to put another point of view.

Here, I must declare an interest, both as a magistrate, now on the supplementary list, and as a member of the Magistrates' Association, perhaps number 17,000. In other words, as was said at Second Reading, I would formerly have represented the landowning, mine-owning, brewery-owning class. How things have changed today. Now I can speak for the white, middle-aged, middle-class tendency. Of course, our participation in this debate, which is perhaps permissible on the grounds that we deal with well over 90 per cent of criminal cases tried in this country, seems to have disturbed some noble Lords at Second Reading. For example, the noble Lord, Lord Thomas of Gresford--I hope that he will not mind my mentioning this; we have worked together in the past, and happily so--said in that debate:

"If the Magistrates' Association wants to get involved in this argument on the side of the promoters of the Bill, I believe that the spotlight should be turned on that system ... It is ... an enclosed system with which magistrates on the whole are very pleased. But it is not the envy of the world".--[Official Report, 2/12/99; col. 932.]

unlike, presumably, the rest of the British legal system. Well, aficionados of the annual criminal justice Bills over the past 10 years may well have formed a view that others in the legal profession qualify for that assessment as well.

However, I feel that I should correct for the record the noble Lord's assertion, at col. 933:

"Advice is given in retirement and not in open court".

I can testify from personal experience that that assertion is mistaken. In fact, if it had happened in any court with which I had been associated, all hell would have been let loose.

The noble Lord will probably now recall a practice direction from the Lord Chief Justice as long ago as 1981 expressing displeasure at that practice, which admittedly took place in the bad old days chronicled so colourfully by the noble Lord. In any event, the Human Rights Act 1998 will ensure that such practice will be illegal from 1st October this year, and, indeed, that such conduct will be dealt with retrospectively.

Throughout this debate has run the underlying theme that defendants get a better deal in the Crown Courts after a jury trial. However, that is not supported in any meaningful way by the facts, which, in any event, are very difficult to assemble. That is particularly true of defendants from ethnic minorities. Of course, I can speak only for myself, although I suspect that others would admit to similar feelings. One tended to take particular care with ethnic defendants, not only to ensure that they did not feel that the dice were loaded unfairly against them, but also, rather more shamingly from the legal point of view, one was aware that in the world outside people were waiting to pounce on the slightest slip on the part of the court.

It was also said at Second Reading that because magistrates were largely white, middle-aged and middle-class, they were unable to relate to young people, ethnic minorities and the gay community. We had representatives of all those groups on my Bench. All made, and make, substantial contributions to the work of that Bench.

I turn briefly to the substance of the Bill. In one respect at least I agree with its opponents; namely, what the Government no doubt saw as a sop--but a not very successful sop, it must be said--to stifle opposition to it. I believe to be unfortunate the right of appeal to a judge against the decision of magistrates on the grounds of reputation and livelihood. Indeed, if the amendments are unsuccessful today, I have tabled an amendment which will seek to remove those considerations from the magistrates' responsibilities. However, I shall refer to that matter on an if-and-when basis. On the central plank of the Bill, I remain convinced that it is entirely proper and long overdue to remove the right of defendants to be able to choose the trial venue in so-called "each-way" cases.

At Second Reading there was much talk of the effect of the proposal on the reputation of a defendant found guilty in a magistrates' court. But, as the noble and learned Lord the Attorney-General asked so compellingly, what about the effect on the reputation of someone not permitted that choice now, as the law stands? For example, what about a bank manager accused of indecent exposure or fiddling a car tax disc? Those are both summary offences. Is it seriously to be said that the damage to his reputation would be any less grave than if he were to be accused of the theft of a packet of elastic bands from a stationery store? I think not.

Why do those who seek to block this reform not go the logical way about it and include those so-called damaging offences in the each-way net? I shall tell the Committee why not. It is because it would cost a great deal of money, drag out the legal process even more and, in the long run, prove unworkable. So they prefer to preserve an anomaly which has existed only since Victorian times. They cloak that illogicality with scaremongering about the threat to that jewel in the crown of the English legal system--the jury.

There is no doubt that there are a number of persistent offenders who manipulate the system for all it is worth. Mention has been made of the costs involved in that malpractice, but in the totality of government expenditure it is a drop in the ocean. I suggest that far more important is the abuse of time engendered by those dishonourable practices and tactics. The phrase "Justice delayed is justice denied" has been flogged to death. But that does not make it any less of a fact. Those people clog up the system and the wait before trial becomes ever longer. The longer the postponement, the frailer the memory, the less reliable the witness. In this House at least that truth was acknowledged during our discussions on the War Crimes Bill.

What about the victims of the crime and all associated with it in one way or another? Is their anxiety to be prolonged too all because of a knee-jerk reaction to sensible change? I strongly urge Members of the Committee to think very carefully before voting against this Bill. I doubt whether those promoting it can expect much support from the serried ranks of barristers, apart from some notable exceptions among my noble friends.