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

Part of the debate – in the House of Lords at 5:30 pm on 20th January 2000.

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Photo of Lord Donaldson of Lymington Lord Donaldson of Lymington Crossbench 5:30 pm, 20th January 2000

My Lords, I am sorry if I have caused any inconvenience. I start by making a point which may not seem directly relevant, but which I believe to be so. I welcome the Bill's re-enactment or production of completely new clauses from a large section of the 1980 Act. For those who have to work with the revised form, if it is passed, it is very much easier than the more customary method of tabling amendments saying, "Insert the following words on page 5, line so and so." However, there is one great disadvantage, which I believe to be relevant. The impression is given of far wider change than is actually contemplated by the supporters of the Bill. I wish therefore to mention the respects in which there is no change.

The fundamental basis until now for choosing a particular mode of trial has been its relative suitability, taking account of the seriousness of the offence and the consequences of possible conviction for the accused. No one, apparently, is criticising that approach. It certainly does not involve the proposition that Crown Court justice is better than that of the magistrates' court. All it says is that there are relatively less serious offences for which a less elaborate mode of trial is appropriate and that there are somewhat more serious offences for which the more elaborate Crown Court trial is more appropriate. So there is no change there.

Until now, it has been the law--and if the Bill is passed the situation will not change--that magistrates should reach a conclusion as to the relative suitability of the mode of trial. If one looks at the way it is laid out in the statute, they have to form that view before the accused is asked whether he consents. In fact, under the present system, he can get up and say, "I don't consent at all", and much time would be saved. But it was the intention of Parliament and it is the intention of Parliament, even if the Bill is passed, that the magistrates shall, first, form a view.

Then we come to the matters to be taken into account by the magistrates under the 1980 Act and under the proposed amendment in the Bill. They are, first, the nature of the case; secondly, the seriousness of the case, taking into account all the circumstances; thirdly, the adequacy of the powers of magistrates; and, finally--and this really complicates everything--any other circumstances appearing to the court to be relevant. There is no change there; indeed, it is exactly the same in the Bill.

Two paragraphs in the Bill are new. They provide that the magistrates should take account of the possible effects upon the accused of conviction in relation to his continuing livelihood and damage to his reputation. I do not know whether that is what my noble and learned friend the Lord Chief Justice had in mind when he said that he was not entirely happy with all the formulations in the Bill. Having listened to noble Lords today, I join him in that respect if he was referring to those two paragraphs. They are absolutely right, let us make no mistake about that. They are a major factor in determining the seriousness of the offence and arranging how it should be tried accordingly. But they are not new; they are new only because someone has written them down.

It has always been a legitimate argument to put to magistrates that there will be exceptional damage to reputation. I shall not give Members of the Committee any examples because, when doing so, it is extremely difficult to be comprehensive. Everyone knows that there are people with certain jobs and certain positions, such as one-man traders. If they are sentenced to imprisonment, it has a devastating effect on their business. Indeed, there are all sorts of different conditions that have to be taken into account, and are taken into account, by magistrates. I do not think that the two paragraphs provide any justification for saying that the law will no longer be treating everyone equally.

I support the Government's objection to the amendment in principle rather than on empirical grounds. It seems quite inconsistent with the main approach underlying the Bill and the 1980 Act that the mode of trial should be determined according to the degree of seriousness. Some people today have criticised accused people--I have heard this before--who decide that they will postpone the evil day by refusing consent to summary trial. I have even heard it suggested that accused people may do that as they would rather go to prison after Christmas, or because they would like to get their holidays in first. That is not a criticism of them; it is a criticism of the law. They are fully entitled to take advantage of their absolute right at present to refuse trial by magistrate. If I were counsel advising them, I would find out what they were really getting at and say to them, "It is up to you. You can achieve that result by objecting to trial by magistrate. You need not worry so much about the serious consequences of being fully tried by a Crown Court because if you express your regret that you have taken the wrong course and plead guilty in the Crown Court many people will take that at its face value". Therefore I do not criticise those people at all but I criticise a system which enables them to do that.

It is said that if they do not have the right to refuse trial by magistrate some people will be disadvantaged. Certainly my client who wanted to spend Christmas at home would be disadvantaged. However, ethnic minorities and young people are a different matter altogether. I would hope--and I believe this to be the case--that magistrates are open-minded and fair-minded in these cases. If a member of an ethnic minority, or counsel on his behalf, said in court, "My client genuinely has a fear that his defence will not receive the same careful consideration by magistrates as by the Crown Court and it is not only my client who believes that, but also many others in his ethnic group", I would expect magistrates to say, "That is a good reason for sending the case to the Crown Court because from your point of view the offence has greater seriousness than it might have for others". As regards young people, magistrates undoubtedly would think that their views were ill-founded, but the perception of the accused matters. I am sure that magistrates would take account of that.

There are advantages in--