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

Part of the debate – in the House of Lords at 5:45 pm on 20th January 2000.

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Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour 5:45 pm, 20th January 2000

My Lords, perhaps I may start by saying that I support the Government. I am sure that that surprised your Lordships. That is to say, I support the Government's intentions. I think it is right that the criminal justice system should not be set in stone and that the Government should seek to make it more efficient, cost effective and more sensitive to the position of victims while protecting the rights of defendants. Those are things that I have argued for over the many long years of my practice within that system.

I also accept that steps should be taken to prevent abuse. As other noble Lords have said, there are people who delay the evil day and play the system. I do not accept that they do so in anything like the numbers that have been suggested. Some people plead guilty in the Crown Court because they have been over-charged in the first place, and it is only by then that the Crown have had the opportunity of considering all the evidence and accepting a reduced plea.

I agree that the aims of the Bill are laudable. The reason I oppose it and the reason I support the amendment--which I do with some pain in my heart--is an issue of principle. I believe that the impact of the Bill will be socially divisive and discriminatory. Other noble Lords have spoken to this and I do not intend repeating what I have said on previous occasions in the House. The Bill removes an important citizen's right.

We have not discussed today the important way in which the number of jury trials will be reduced by the Bill. Jury trials operate as a very awe-inspiring act of citizen participation. We should not underestimate how important is that engagement in the system by citizens in maintaining faith and in strengthening our society.

On 4th January I took my children to the Dome. For those of your Lordships who have not yet been there, I can inform you that there is a zone in it called "Self Portrait". It contains wonderful sculptures by Gerald Scarfe and lauds the great strength of the British people. It speaks about our creativity, our sense of humour, our inventiveness and our tolerance. It speaks about our sense of fair play; about how we invented the jury system and how that is the finest way of determining the guilt or innocence of an accused person. It also lauds the fact that we exported it to rather a large part of the world. So it is with a sad heart that I see any encroachment on that, particularly in the form taken in the Bill.

I should emphasise that this is not a denigration of magistrates. Many noble Lords have been, or are magistrates, who fulfil that role with the greatest of care and commitment. But the Bill puts magistrates into an invidious position where they, rather than the citizen, pick and choose those who are deserving of trial. Trial then becomes a privilege--and those who come before the courts have to be deemed worthy or unworthy of that privilege. It allows for subjective assessments. As soon as we have those, we know that there is a potential for prejudice to creep in and the possibility--even if it is not real--of concern by persons that they are being discriminated against.

That is the worrying aspect of this piece of legislation. That is what makes it different from every other change to the jury system which has taken place. Rich or poor, black or white, everyone was treated in the same way, not as we have here.

I wish to add two things which have not been mentioned in the debate: first, the race issue and the concern about minorities. These subjects excite much concern when I discuss them with the general public--not only with lawyers but with people in community groups and in gatherings where concerns about racism are very real. They feel that, although the research has been published, there has not been adequate consideration of other research which could be examined. For example, a long-term study is being conducted in Leicester. I am told that Leicester Magistrates' Court has completed that report. It has not been published because of a lack of resources, but the Home Office has been given the results of that work, which addresses specifically whether there are any discrepancies in the way in which black and white people are dealt with. However, we have not seen anything of that work to help us in our considerations tonight.

Work has also been done by the Commission for Racial Equality on discrimination in the Irish community. I wish to mention that because I have raised the matter in the past and I had to search for support for my concern that if you looked at Irish people, who considered that they too might be discriminated against in the system, out of the white component, you might find that the difference between black and white was much more marked. In the report published in 1997 on discrimination in the Irish community, reference was made to various different pieces of research which indicate that there might well be similar discrimination against the Irish community in relation to stop and search, search of vehicles, charges following a stop and search, bail, remand and on ultimate sentencing. If we examined that kind of research and conducted more of it, we would be better assisted in knowing whether there is no discrimination at all within the system. I should like to ask the Home Office to undertake further research before it makes a decision and puts this kind of proposal before the House.

My noble friend Lord Lipsey mentioned reform of the magistrates' court and others have mentioned discrepancies in sentencing. An important review of the criminal justice system is currently being conducted by Lord Justice Auld, a fine judge. It is likely to report later this year. The inquiry is examining both the Crown Court and the magistrates' court. Would it not be useful to wait and see the results of his inquiry before leaping to this legislation?

Other things could be done here. After the Royal Commission reported and expressed concern about the issue of hybrid offences, an administrative change was introduced which meant that there would be plea before venue. I shall explain. In the past you were asked where you wanted to be tried before you were asked whether you were pleading guilty or not guilty. As a result, people would often say, "I want to go to the Crown Court". So off they went to the Crown Court, not having been asked the second question on their plea. By simply inverting those questions, it has been found that the number of people going to the Crown Court and electing for trial by jury has halved. A very simple administrative change has brought about an extraordinary reduction. I suggest that other administrative changes could be made that would bring about the same effect for the Government.

If some people are abusing the system because they want to spend Christmas at home before going off to serve their sentences, it should be made clear to them in the magistrates' court, at the point of electing, that they will be penalised if they are found to be abusing the system. Ways can be found of creating sticks and carrots here that would achieve the same ends.

If we want to ensure that victims are well treated within the system, for which I have argued for many years, we could create a system of fast-tracking that would provide a much more effective way of having such cases heard. Soon after coming to this House, I suggested to the noble and learned Lord the Lord Chancellor that it might be worth considering the introduction of a national courts administrator--an inspector of courts--who could look at the failings of the system in the administration of justice and find ways of making it more effective. That would achieve the same end as the Government are seeking in this legislation.

Finally, speaking as a Scot, we have seen the ultimate sleight of hand in the suggestion that because Scotland has this system, why should not England? That is a strange position to take when we have just completed devolution and the Scots are proudly celebrating their distinctive cultural and legal systems. Should we not take pride in the systems practised south of the Border? Law is cultural. That is why I am concerned when discussions turn to harmonisation across the board in Europe. I would say that our system is very much our own system and we cannot cherry-pick those elements that we like of another system because each system fits together in a holistic way. In Scotland, the procurator fiscal decides whether someone will have a trial by jury, and so to look at that system and merely to say that that is how it is done there is to fail properly to examine the whole of the Scottish system and how it works. In Scotland the trial is always held before the judge--the sheriff--on these hybrid offences. He sits with or without a jury as determined by the procurator fiscal, who has full knowledge of the person's convictions. However, the judge has only limited powers when dealing with a case in a summary fashion. There is no committal for sentence and the maximum penalty for one set of complaints is three months. That is a very different system and does not compare like with like. Simply cherry-picking is not acceptable, and if we suggested such a course in Europe, it would be bitterly resented.

This is an issue of principle. It is not about trading off. The amendment has been put in this form because, although we would have wanted to find another way, there is no alternative course. The Bill is wrong in principle and that is why it is opposed even by those who are friends of the Government.