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

Part of the debate – in the House of Lords at 6:15 pm on 20th January 2000.

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Photo of Lord Hardie Lord Hardie Judge 6:15 pm, 20th January 2000

I hesitate to intervene in this matter, being from a foreign jurisdiction. I apologise to the Committee for not being present at Second Reading, but I have read the report of the proceedings. I note that during the debate reference was made to Scotland. My noble friend Lady Kennedy of The Shaws did so again today. I wish to speak as head of the system of investigation and prosecution of crime in a legal system where the concept of an accused electing the mode of his trial has no place and never has.

In any system where there is either way prosecution, there are three options: the prosecutor decides; the accused decides; or the court decides. I understand some of the concerns which have been expressed by the Committee today. I recognise that whatever system is chosen, we must ensure that it is fair. There must be checks and balances to protect an accused person against injustice. It may assist the Committee if I briefly explain what happens in Scotland, not to suggest that the same system should be imported into England, as some have suggested, or even to suggest that there should be "cherry-picking", as my noble friend said. Rather, the purpose is to ascertain whether any issues of principle may be applied where the accused does not have the right of election of mode of trial.

I acknowledge that there are fundamental differences between the two jurisdictions, not least because the Lord Advocate is the master of the instance for all prosecutions in the public interest. That in effect means that the Crown alone decides not only whether to initiate criminal proceedings and upon what charges but also, in the absence of any legal provision to the contrary, the court in which an accused shall be prosecuted. The decision whether to take proceedings and the nature of those proceedings is made on an independent and objective assessment of the evidence available and on the Crown's assessment of the public interest.

As to the mode of trial in Scotland, as in England and Wales there are certain offences specified by statute in which the High Court has exclusive jurisdiction and which must be heard by a jury. In addition, there are some statutory offences in which solemn procedure has been expressly excluded. However, apart from such cases, the procurator fiscal, and in jury cases Crown counsel, decides what is the appropriate forum, and they have a wide discretion in making that decision.

In choosing the appropriate forum, the fiscal or Crown counsel will have regard to the gravity of the offence and whether the powers of the court are appropriate to impose an adequate sentence in the event of a conviction. The Committee will recognise the similarity with England, at least in that regard.

Regard will also be had at that stage to the criminal record of the accused. The accused has no rights at all in the decision as to which forum he should be tried in. There is no right of appeal against the decision of the Crown, although if there were oppression the court would clearly intervene.

In Scotland, it will be obvious that we have opted for the prosecution as the appropriate organ to make the decision. I accept that that would not be appropriate in England, where there is not a unified prosecution system. So in England and Wales the choice is between the accused and the court.

I venture to suggest to the Committee that in determining the appropriate forum for trial, an objective assessment founded on relevant and specified criteria would appear to be more just and equitable than one dependent on the subjective views and considerations of an accused. The objective approach balances the interests of the accused against the interests of society in general and victims and witnesses in particular.

What is essential in any system is that the various interests are balanced; that society's interests, as represented by victims and witnesses, are balanced against the interests of the accused. But what must be ensured is that the accused is protected from the effect of arbitrary decisions. Who better to perform such a task than an independent judiciary?

In the Bill, the appropriate balance is achieved while ensuring that there are sufficient safeguards for the accused. The magistrates are obliged to have regard to the matters specified in new Section 19(3). New Section 20(4) provides the further safeguard of a right of appeal to the Crown Court against the decision of the magistrates to try the case summarily. There is thus judicial scrutiny to afford an aggrieved accused person further protection.

I invite the Committee to accept that the Bill will achieve the correct balance. By reducing delays in trial, the Bill will secure a more efficient system of justice, to the benefit of victims and witnesses alike, while at the same time protecting the interests of an accused.