Rt Hon Lord Lilley


    Criminal Justice Bill
    Mr. Peter Lilley (Hitchin and Harpenden): It is a great pleasure to follow the hon. Member for Hackney, South and Shoreditch (Mr. Sedgemore), who followed me when I made my maiden speech and graciously honoured the conventions of the House by congratulating me. Without any need to apply convention, I congratulate him on his speech?I agree with it very much.

    My constituents want serious and substantive measures to punish the guilty and protect the innocent, and will be as puzzled as contributors to our debate by the insubstantial nature of the Bill?s provisions on tackling crime. Those provisions appear to be the fruit of an unholy and cynical alliance between tabloid populism?which is designed to sound tough on crime but has no substantial effect on it at all?and modernising zeal, which, in practice, will undermine the liberties that have protected the innocent in this country for centuries.

    The Gracious Speech referred to safeguarding


    “the interests of victims, witnesses and communities.”

    It may be significant that no mention is made of safeguarding the innocent. Indeed, I believe that the Home Secretary recently equated wrongful conviction of the innocent with a failure to convict the guilty. My constituents to not make that equation?they recognise that the risk of convicting innocent people is not merely abhorrent but will result in the guilty remaining at large, free to go on committing crime. Ministers foster the belief that few crimes result in convictions because the courts fail to convict?that is why they want to change the court process. In fact, as we have heard, more than 95 per cent. of cases in magistrates courts result in conviction and more than 87 per cent. of cases in Crown courts result in conviction.

    The Government want to increase those conviction rates even further, but make no mention of the fact that more than an average of more than 4,000 convictions every year for the past 10 years have been quashed. Innocent people have been found to be wrongly convicted. The Government are not anxious to change that in future?they are not worried that 4,000 guilty people may be at large because 4,000 or more innocent people have been wrongly convicted. In practice, the measures introduced by the Government will undermine the protection of the innocent, which is an important principle.

    I do not necessarily oppose change to things such as jury trial or centuries-old rules on double jeopardy, but anything that has existed for a long period and has served us well should be changed only if the change can be shown to be necessary to produce a substantial improvement; if it has been well researched; and if it is clearly well motivated. A number of Government measures, I am afraid, do not pass any of those tests. As the hon. Member for Hackney, South and Shoreditch said, the Government cannot complain if we refer to their previous convictions. On the matter of jury trial, they have two serious previous convictions and have attempted to remove people?s right to choose jury trial in either-way cases.

    In the light of that attempt to restrict jury trial, we must evaluate the four measures that the Government wish to introduce, all of which would undermine the use

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    of jury trial by stealth. First, they want to increase the sentencing powers of magistrates courts from six months to 12 months, although that is accompanied by a welcome quid pro quo that magistrates will no longer be able to refer to higher courts for sentencing. The net effect, however, is to reduce the number of jury trials, the Government anticipate, by 6,000 a year.

    The remaining three measures are designed to reduce the use of jury trial in the most serious cases of indictment. The Government propose that defendants be given the option to choose not to be tried by jury. Frankly, it is bizarre of a Government who have previously justified their attempt to abolish the right to choose trial by jury instead of in a magistrates court, with the principle that it is wrong for defendants to have the right to choose jury trial, now to say that as a matter of principle they will introduce choice so that people can choose not to have jury trial in the most serious cases.

    The only unifying feature in both instances is, as I pointed out to the Home Secretary?although he did not take the point?that the Government want to move in a direction that will result in fewer jury trials. It is odd that the previous Home Secretary described our system of allowing a measure of choice in either-way cases as wrong in principle, “frankly eccentric” and almost unique in the world. It is now said that he was misleading the House. Far from the system being frankly eccentric and almost unique, we are told that it is almost universal in other common law jurisdictions for there to be an element of choice. It is proposed to introduce that element of choice in trials by indictment.

    Should we accept the conversion to choice, welcome it and say that if it works overseas we will accept it? That would be unwise. The conversion is being introduced by those who want to reduce the use of jury trial. There is the danger that once it is introduced, the same arguments that were applied to the right to elect for jury trial rather than the case appearing before a magistrates court will be used in cases where people continue to opt for jury trial rather than trial by the judge. It will be said, “They are merely using it to manipulate the system. There should be trial by judge. That would be more economic, for example.”

    All the other jurisdictions have entrenched the right to jury trial in their constitutions. They are safe from a slippery slope. According to their constitutions, there cannot be the complete erosion of jury trial. We do not have that protection. Instead, the House is that protection. The House should not start down the slippery slope.

    Another measure that the Government propose to reduce the number of jury trials is to give prosecutors the option, if they consider that a case would be too complex a burden on a jury, to ask for a trial without a jury. It seems odd that prosecutors should be made the defenders of jurors? rights and convenience. However, that is the proposal. It gives the prosecutor an incentive to make a case long and complex and the documentation excessive if he or she wants to do without a jury trial and thinks that a judge is more likely to arrive at a favourable judgment.

    That is bad because we should be trying to speed and simplify such trials. On page 17 of “Taking Liberties”, which is available on my website, a senior judge states:


    “Brevity and simplicity are the handmaidens of justice, and length and complexity are its enemies”.

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    We should not give prosecutors an incentive to make their cases long and complex, especially as in the past four years the Serious Fraud Office has achieved a 92 per cent. success rate in obtaining convictions as against a 57 per cent. success rate in contested trials before jurors generally.

    The final measure that the Government are proposing to erode the use of jury trial is to give the court the option, again on the application of the prosecution, to forgo a jury trial if there is a risk of jury tampering. As far as I can establish, the proposal was not even put forward by Lord Justice Auld. He put forward the most comprehensive proposals for reducing jury trial ever previously known short of abolishing juries, but he had not thought of the measure that the Government are putting forward. Presumably, that is because he had not found any evidence that it was needed. Nor have the Government put forward any evidence of the need for it.

    It means that effectively judges will say, “These are the sort of people who might tamper with juries. Therefore, I will not give them the protection of a jury; I will judge them myself.” That is not likely to encourage respect for the law. Would it not be better to say that if there is such a risk, let us consider the option of giving juries anonymity rather than doing without juries?

    The Government?s measures are all moving in one direction, which is the decline in the use of juries. They are mistaken in wanting to move in that direction because juries are not only the best method of trying cases but the only method that we have as citizens, apart from our vote, in participating in government and our system of justice. About 187,000 people a year participate in juries. That is a good thing and something to be encouraged and increased, not diminished. When Tocqueville was analysing democracy in America and Anglo Saxon countries and saying why it was so important, he said:


    “The jury is above all a political institution. The jury plays an incredibly important part in forming popular judgment and improving people?s natural understanding of the law.”


    I believe that we reduce its role at our peril.

    I move on to double jeopardy. The two arguments in favour of diminishing the use of the rule are that the evidence of DNA could be available and the evidence of confessions post-conviction could be used. It is important to understand that neither case will apply to any offences committed in future. Only retrospective offences will apply. In any offence committed in future, DNA will be available at the first trial. If it is not brought up then, it will not be a justification for a second trial.

    Confessions after conviction will no longer occur if we do not have the double jeopardy rule. We are talking about changing a rule to bring about convictions for offences that have already occurred and not increasing in any way the likelihood of?