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

Part of the debate – in the House of Lords at 6:30 pm on 20th January 2000.

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Photo of Lord Mishcon Lord Mishcon Labour 6:30 pm, 20th January 2000

Following so many eloquent speeches, I would not dream of addressing the Committee at this hour unless I had something to say which had not been said so far. It may be that it has not been said because it is not very sensible. Nevertheless, I wish to place my dilemma before the Committee.

The matter to be decided this evening can be put in simple terms. For many years defendants in certain cases have had the right, which has been regarded as precious, to choose which court is to try him. Before a right is removed, surely the onus is upon those who seek to remove it to prove--I almost said "beyond all reasonable doubt"--certainly on the balance of probabilities, that the change should be made and that they are not perpetrating any injustice. Broadly, tonight we must decide whether this Bill justifies the withdrawal of a right. One can go on talking in parentheses. One can explain what happens in the Crown Court: for example that, unlike in the magistrates' court, one is served with copies of statements of witnesses to be called by the prosecution, which are frightfully useful. I do not go into those details. Given that there is a right vested in a number of our citizens, have we proved the need to remove it, and are there advantages in so doing?

I tried to do a little research into the claimed advantages of the Bill. I pay sincere tribute to my noble and learned friend the Attorney-General who said at Second Reading that he had nought but respect for those who happened to differ from the case that he then put forward. I do not believe that I am being disloyal in what I say. I am being honest when I try to examine some of the supposed advantages. First, we are told that time will be saved. Time is very valuable. I sought to discover from the Law Society the average time for cases in which there is a not guilty plea to be tried in a magistrates' court and a Crown Court in a metropolitan area. I understand that the average time is four months for both a magistrates' court and Crown Court, so it is a dead heat.

We are told that it will save costs. I do not believe that the reduction of cost is a very justifiable excuse for a Bill of any kind. However, I considered that matter in the context of this Bill. One point that has not been mentioned is that the Bill suddenly places a burden on the courts. In every case where the option arises a magistrates' court must be convened to decide which court is to try the case. That does not apply simply to those cases where the defendant wants to be tried in the Crown Court; in every case the court must judge which is the appropriate court. It must listen to any observations that may be made on behalf of the prosecution and defendant and undertake various extensive exercises, to which reference has been made--I do not repeat them--following which there is a right of appeal.

Last weekend I spoke to a very experienced Crown Court judge and asked him what he thought. He said, "Please do not add to our labours in the Crown Court. We already have enough to deal with. Do we have to hear these appeals as well?" The objector to my point will say that it is the same as a bail application. Anybody who knows anything about bail applications will be aware that they can be extremely brief or lengthy. I have sufficient confidence in my colleagues at the Bar to know that if they are allowed to go through all the matters to be dealt with under Clause 1 of the Bill they will be extremely eloquent. I am sure that that will last a long time and that, with those added burdens, costs will not be saved. Which fund is to meet those costs?

At Second Reading I took the liberty to intervene in the Attorney-General's speech. With his usual courtesy he allowed me to do so. I asked whether legal aid would be available for these exercises, and he confirmed that it would be. To be frank, I can think of better uses for legal aid funds. Nevertheless, I cannot see anything happening in regard to costs.

Next, we are told that this is a good way to deal with the situation and for that reason we should withdraw the right. The Committee will not be surprised to hear that I examined my conscience. I bear in mind the beautiful phrase "the jewel in the crown". I do not want that jewel to be scratched or to give anyone the chance to destroy it completely. Once one starts to interfere with the right to jury trial one runs the great risk that some other less just and progressive government will start to knock off other bits of that right.

The Committee will not be surprised to learn that when I finished my deliberations--which I assure noble Lords were sincere--I came to the conclusion that in all honesty and conscience I could not support the Bill as it stood. Here comes my dilemma.

What does the amendment say? Put simply, the amendment says that there should be an absolute right vested in the defendant to election in what are called either-way cases. My noble friend Lady Kennedy made, as usual, a jolly good speech in which she admitted, as at Second Reading, that there were a number of cases--not the majority--in which people took advantage of the system. If one looks at legislation at all one must deal with that fault. People should not be allowed to make a mockery of the system. If one looks at the amendment, the absolute right is there and, with great respect to those who drafted it, no one has tried to deal with that difficulty. It can be dealt with. I say this to my noble and learned friend the Attorney-General as much as to the movers of the amendment. It may be sensible that we do not vote on the issue tonight but on Report or possibly at a later stage after consideration. I am amazed to find that my sentence has caused laughter. Dissent I can stand; mockery I cannot!

I say this sincerely. One has only to add to the amendment that the defendant has the absolute right to elect subject to the objection that may be made by the prosecutor. Then all the procedures set out in the Bill can be gone through. That is an absolute right given to the accused. The prosecutor will not interfere unless he has extremely good grounds and is able to say to the magistrate or judge on appeal, "Look at the way this defendant is behaving. It is ridiculous that the case should be transferred to the Crown Court".

I have uttered, I hope truthfully and sincerely, the dilemma in which I find myself. It is a matter for consideration--I say this most humbly and respectfully--by both the Government and those who oppose the Bill as to whether we might find some compromise of that kind which does not extend to the abolition of a right but enables us to proceed sensibly. It is a matter of grave concern to our people.