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

Part of the debate – in the House of Lords at 6:00 pm on 20th January 2000.

Alert me about debates like this

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat 6:00 pm, 20th January 2000

The matter that has most struck me in the debate this afternoon was the anecdote of the noble and learned Lord the Lord Chief Justice, Lord Bingham. He referred to his experience of going to a Crown Court and being faced with a long list of defendants who had elected for trial. He told us that most of them pleaded guilty in the face of the Lord Chief Justice. However, there was one who was, as the noble and learned Lord described, of the weakest intellect and elderly, who, in the face of the Lord Chief Justice, wanted to have his trial. What we object to in the Bill is that that is the kind of person--60 convictions before him--who the magistrate would have insisted, under the provisions of the Bill, should have his case heard before magistrates. That man, perhaps the weakest person in our society, will be the person for whom the justice of a trial will be denied.

I do not accept it, but there may be some merit in declaring that all shoplifting cases are too expensive for jury trials and so should be abolished for everyone. However, it is wrong to abolish them for the elderly person who is weak of intellect. That is not the way in which the system of justice in our country should be conducted.

The noble and learned Lord the Lord Chief Justice and the Attorney-General have entirely misconceived our fundamental objection to the Bill. Indeed, the noble Earl, Lord Onslow, struck the target absolutely accurately. The objection is not that a magistrate will make the determinative choice of venue. It makes no difference whether that is undertaken by a magistrate or a Crown Court judge. The objection is to the abolition of the right of a defendant to choose whether his case is heard before a jury, a bench of magistrates or a single stipendiary, based upon a value judgment as to his worth. The question being asked is: what kind of position in life does he need to protect? This Bill creates a new privilege to go along with the mortgage, the house, the car and the job. We should not divide our society in that way.

The noble and learned Lord the Lord Chief Justice and the noble and learned Lord the Attorney-General tell us that they have changed their minds on this issue for one reason--that there will be a right of appeal to a Crown Court judge. That makes absolutely no difference to the principle to which we are referring. The same criteria are to be applied. During the Second Reading debate, in answer to a question that I put to him, the noble and learned Lord the Attorney-General anticipated,

"something not dissimilar to the bail appeal to the Crown Court, where it is normally substantially a paper appeal, but oral representation is allowed where appropriate".--[Official Report, 2/12/99; col. 999.]

What that means, to those of us who have some experience of appeals to the Crown Court in bail applications, is that the two representatives of either side go into the judge's chambers, in private, with a file each. The defendant is not there. He does not hear what is said about his reputation and about his livelihood. It is all done away from him. It is a five minute hearing. The door then opens, the decision is made, and no doubt, in the vast majority of cases, the Government will expect that the Crown Court judge, using those same criteria of reputation and livelihood, will rubber stamp the decision previously taken by the magistrates.

So many points have been covered by your Lordships that perhaps the Committee will forgive me if I mention only one or two. Reference was made to the question of cost. The alleged savings in the Home Office flows and costs model operate on an assumption that the magistrates will take to themselves three-quarters of the 18,500 cases where the defendant currently elects to go to the Crown Court. That is the basis on which the Government say there will be a net saving of £39.5 million to the courts' budget.

It is a complete assumption. Who knows whether the magistrates will decide in three-quarters of the cases or in 95 per cent of the cases that the matter should be dealt with by magistrates and not in the Crown Court, or vice versa? One cannot compare the average cost of Crown Court trials, which reflect the costs of murder cases, fraud and conspiracy--all long cases--with the cost of average magistrates' court cases where so many cases go through that the average cost is far lower. What is happening is that the most expensive cases in the magistrates' court will be the each-way cases that are sent to them.

The second assumption is that the magistrate's decision at trial will be accepted; that is to say, if he finds the defendant guilty, that is the end of it. There will be no further appeal. But that is not the case. It may be that the defendant will be committed for sentence; it may be that he will exercise his unbounded right to have a completely new hearing in front of a Crown Court judge with two magistrates. So, as has been said in the debate, the savings are based on assumptions which simply will not be carried out.

The third assumption is that £66 million will be saved from prison costs as a result of shorter custodial sentences passed in the magistrates' court. That figure is based on research which is now 10 years out of date. I agree entirely with what was said by the noble Lord, Lord Alexander of Weedon. How can it be right in principle that there is such a disparity in sentencing between the Crown Court and the magistrates? A person should not in principle receive a higher sentence through the exercise of his right--his right--to jury trial.

If this Bill or anything like it becomes law, I can see the following happening. Just as there is pressure on magistrates to refuse applications for jury trial to come within the projected guidelines for cost savings, so there will be pressure on Parliament within a very short time to increase the sentencing powers of magistrates to avoid the expense of committing a convicted person to the Crown Court for sentencing. Within a couple of years I guarantee that the powers of the magistrates will be increased from six months to two years, or perhaps even three years in a situation like that.

Much has been made during the debate of the right to election first arising under the Criminal Justice Act 1855. That is a complete misunderstanding. Prior to that Act, all felonies were tried before a jury at assizes. The purpose of that Act may have been to ensure that magistrates dealt with the bulk of cases, but the age-old right to be tried by a jury was preserved by the requirement that the accused's consent was required to a hearing before the magistrates. The legislation did not give him the right to elect for trial by jury; he already had that right. It simply gave him the protection of consenting to a trial before magistrates where the sentence would be less. It is ironic that a provision introduced in order to give a defendant the chance of a disposal before the magistrates with a lesser sentence is now being used as a precedent for reducing costs.

It is said that defendants abuse their rights. I do not see how one can abuse a right simply by exercising it. That is a novel concept. Nor can one start from the basis that all those who choose to go for trial are guilty. That seems to be behind so much of what has been said by those who are in favour of the Bill. More abuse of lawyers comes from Mr Straw. Comments have already been made about that. I tried to think, "Am I a Hampstead liberal?" For two months in 1961, when I was studying to be a solicitor, I did live in Belsize Park. I had aspirations even there--the foothills of Hampstead. Then I wondered, "'Woolly liberals', was that in some way a reference to my Welsh ancestry?" I thought, "Surely the Home Secretary cannot mean that because he would have very much a woolly New Labour Attorney-General", who may be replying to the debate.

Those of us who have practical, hands-on, daily experience of the courts see defendants not as outcomes, not as disposals, not as statistics, but as people, sometimes with families, with very human problems in a society which so often let them down, laid them open to abuse and to deprivation, and failed to give them the skills, the training and the jobs that would enable them to survive and make something of their lives. I once thought that the Labour Party was concerned about those people. I once thought that that was what it had as a principle. But New Labour is a very different proposition. It accepts a total reverse of principle; it accepts the creation and not the abolition of privilege which we on these Benches have fought all our lives; and it accepts money before justice and the substitution of abuse for argument. It really is very sad.