Criminal Justice (Mode of Trial) (No. 2) Bill — 7 Mar 2000
Order for Second Reading read.
I beg to move, That the Bill be now read a Second time.
The Bill is part of the Government's programme to modernise the criminal justice system and to improve public confidence in it. Its purpose is to make the system more responsive to the needs of victims, witnesses and the public at large--and defendants. The proposal has been considered extensively in the past seven years. In 1993, it received the unanimous backing of the royal commission on criminal justice.
Today, it enjoys the active endorsement of the Lord Chief Justice, Lord Bingham, and of the vast majority of the High Court Bench of nearly 100 senior judges; of the Magistrates Association, representing 30,000 justices of the peace; and of all three police associations, representing more than 125,000 police officers, each of whom has to deal every day with the victims of crime and its perpetrators and who know that justice is not served, either for victim or defendant, by an antiquated and time-wasting procedure, which the Bill seeks to remedy.
The Bill is justified in its own right, but it will produce considerable savings of more than £120 million a year, representing resources which could, and will, be better used elsewhere in the criminal justice system.
I understand the concerns in the House about the effect of the Bill on the principles of trial by jury. I understand those concerns not least because, when I first considered the matter, my instincts were similar; I acknowledge that. However, as the House knows, I have changed my mind--there has never been any dubiety about that--because the more I have examined the arguments in favour of the present arrangements, the weaker they appeared to be and the stronger the case for reform.
In no sense does the Bill undermine the availability of trial by jury for appropriate offences. What it does is to ensure that there is a fairer and more objective basis than the decision of the accused for determining which cases involving the middle range of offences should be so tried. In doing so, we bring ourselves into line with the better practice of almost all comparable jurisdictions and come closer to the practice in Scotland.
Often, Scotland is, rightly, held out to be a nation with a more effective criminal justice system than ours. There, the decision on mode of trial has never rested with the defendant, but is made by the prosecutor. The Bill provides greater safeguards for the defendant by having the initial decision made by magistrates and the final one, on appeal, by an experienced Crown court judge.
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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?--[ Official Report, House of Lords , 20 January 2000; Vol. 608, c. 1287.]
in considering elections for trial I cannot remember the last time someone elected for reasons of reputation. Inevitably, the ones who elect are experienced defendants, the ones who know how to play the system.
Abuse is still rampant and there is still a pressing need for reform. Nothing has changed since the publication of the Narey report.
In the end it is plain daft to allow a persistent criminal charged with a minor theft to invoke the full panoply of a criminal trial with solicitors, barristers, court officials, jurors and judges at massive public expense.
Opponents of the reform pray in aid Magna Carta, ignoring the fact that the defendant's right to choose jury trial dates only from 1855. It is true that juries acquit more often than magistrates, but in the Royal Commission's view it is as wrong to give the defendant the right to insist on the level of court that will give him a better chance of acquittal as it would be to give him the choice of a more lenient judge.
If . . . a Member of Parliament or even a Secretary of State were charged with an offence of dishonesty, would they not insist on being tried by a jury? If that is the case, why should others be denied that right of election?--[ Official Report , 27 February 1997; Vol. 291, c. 434.]
it seems to me strange to baulk at entrusting to them the power to decide whether, subject to appeal, a case is more fitted for summary trial or trial by a judge and jury.--[ Official Report, House of Lords , 20 January 2000; Vol. 608, c. 1253.]
We do not envisage that the proposed changes will affect access of needy individuals to psychiatric assessment, defence, mitigation or treatment. It is even possible that by speeding up the process, some mentally disordered defendants may benefit.
never before in the history of Parliament has there been a provision undermining the constitution of the nation, the liberties of the people and a system of justice that, with all its faults, is the envy of the world, on less evidence, with less consideration, and with a more complete absence of reasoning in its support.--[ Official Report , 26 April 1967; Vol. 745, c. 1744.]
would result in a substantial reduction in civil liberties.--[ Official Report , 18 January 1988; Vol. 125, c. 691.]
may well be in jeopardy of losing his job, and he will certainly be in jeopardy of losing his reputation and the respect of all around him. That is much too serious a case for the defendant to be deprived of his right to trial by jury.--[ Official Report , 18 January 1988; Vol. 125, c. 719.]
if we can trust magistrates to decide guilt or innocence, why cannot we trust magistrates to decide whether cases are sufficiently serious to be tried by a jury in a Crown court?--[ Official Report , 27 February 1997; Vol. 291, c. 438.],
almost the whole High Court Bench . . . nearly 100 judges, including some former circuit judges
there seems to be a considerable unanimity of opinion on the topic.
some weight to a body of people with a close and current knowledge of the administration of criminal justice who are--
to the last man and woman, very strong supporters of jury trial in appropriate cases. There have been many occasions in the past when the judges have been united or almost so in resisting change. It is
difficult to think of cases where they have been as much of one mind in approving it.--[ Official Report, House of Lords , 20 January 2000; Vol. 608, c. 1255.]
Let me now refer to the proposal to end the right of many defendants to elect for trial by jury, even though they may face charges of dishonesty, and their reputation and their whole future may be at stake. Surely, cutting down the right to jury trial, making the system less fair, is not only wrong but short-sighted and likely to prove ineffective . . . Is it not the case that that not only is the view of the Opposition and many practitioners and jurists, but was the view of the Secretary of State, at least until today?
If a police officer, a Member of Parliament or even a Secretary of State were charged with an offence of dishonesty, would they not insist on being tried by a jury? If that is the case, why should others be denied that right of election?--[ Official Report , 27 February 1997; Vol. 291, c. 433-34.]
The serious blemish in an otherwise admirable report is the proposal that in those cases where the accused can now opt for trial by jury, this right should be removed, and in cases where the Crown Prosecution Service does not agree to trial by jury, the magistrates would have the power to decide. This would be madness. There are delays and inefficiencies at present, but the way to deal with them is to improve the mechanics, not to erode a fundamental liberty. How will a defendant feel about his case if he has failed to obtain a jury trial and has his case heard in the very magistrates court that refused him his present rights? I hope that Parliament will refuse to countenance legislation of this kind.
Section 49 of the Criminal Procedure and Investigations Act 1996 (plea before venue) has led to a decrease in the number of persons committed to the Crown Court for trial.
Ways can be found of creating sticks and carrots here that would achieve the same ends.--[ Official Report, House of Lords , 20 January 2000; Vol. 608, c. 1282.]
to the female complainant in a rape case--
Is it right that someone, let us say, who has 10 previous convictions for shoplifting a jelly or a banana from Tesco is automatically entitled to the right to trial by jury?--[ Official Report, House of Lords , 2 December 1999; Vol. 607, c. 923.]
On a relatively recent visit to a court outside London . . . I found myself trying for shoplifting an elderly man, of weak intellect, in poor health, who had more than 60 convictions for that offence. He had really no defence, as the jury concluded.--[ Official Report, House of Lords , 20 January 2000; Vol. 608, c. 1253.]
For the purpose of subsection (1) above the court shall consider--. . .
(b) any of the circumstances of the offence (but not of the accused) which appears to the court to be relevant.
whether, having regard to the matters to be considered under paragraph (b), the punishment which a magistrates' court would have power to impose for that offence would be adequate.
I beg to move, To leave out from "That" to the end of the Question, and to add instead thereof:
"this House declines to give a Second Reading to the Criminal Justice (Mode of Trial) (No. 2) Bill which, while making provision for determining the mode of trial in the case of offences triable either summarily or on indictment, fails properly to safeguard or maintain the right to trial by jury in either way offences which may result in serious punishment and loss of livelihood."
Each jury is a little Parliament. The jury sense is a parliamentary one. I cannot see the one dying and the other surviving.
The first object of any tyrant in Whitehall would be to make Parliament utterly subservient to his will, and the next to overthrow or diminish trial by jury, for no tyrant can afford to leave a subject's freedom in the hands of 12 of his countrymen.
England's attachment to jury trial is the lamp that shows that freedom lives.
Those words were uttered by Lord Devlin, who was quoted in part by my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews). Lord Devlin went on to add that if a tyrant took over our country, one of his first acts would be to diminish trials by jury because
no tyrant could leave a subject's freedom in the hands of twelve of his countrymen.
To suffer woes which Hope thinks infinite;
To forgive wrongs darker than death or night;
To defy Power, which seems omnipotent;
To love and bear; to hope till Hope creates
From its own wreck the thing it contemplates;
Neither to change, nor falter, nor repent;
This, like thy glory, Titan, is to be
Good, great and joyous, beautiful and free.
worthy people who sit on the bench.
I consider that the present arrangements as regards the right for an accused to insist upon trial by jury should not be interfered with. The right to trial by jury should not be sacrificed on the alter of expense.
I am most concerned. I do not believe that the present system is being abused. The biggest delay in getting cases into the Crown court is on the part of the prosecution preparing their committal file.
The truth is that the jury system has the confidence of ordinary people because they believe that it is the fairest system of trial.
If I were accused of an offence which I had not committed I would want to be tried by a jury if at all possible, and I would know that I would have a substantially higher chance of being found not guilty. I would want 12 minds to look at the evidence and 12 fresh minds, not one, two or three people who had already heard many similar cases. As a lawyer, that is the advice I would give in almost every case where I considered my client had a good defence.--[ Official Report, House of Lords , 20 January 2000; Vol. 608, c. 1260.]
So that the liberties of England cannot but subsist so long as this palladium--
remains sacred and inviolate; not only from all open attacks . . . but also from all secret machinations, which may sap and undermine it; by introducing new and arbitrary methods of trial; by justices of the
peace, commissioners of the revenue, and courts of conscience. And however convenient these may appear at first (as doubtless all arbitrary powers, well executed, are the most convenient), yet let it be again remembered, that delays and little inconveniences in the forms of justice, are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concern.
Question put, That the amendment be made:--
The House divided: Ayes 214, Noes 315.
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