Orders of the Day — Criminal Justice (Mode of Trial) (No. 2) Bill

House of Commons, 25 July 2000.

COMMITTAL FOR SENTENCE

David Kidney (Labour, Stafford)

I beg to move, That the clause be read a Second time.

Alan Haselhurst (Deputy Speaker, Saffron Walden)

With this it will be convenient to discuss amendment No. 12, in clause 1, page 2, line 5, at end insert— '( ) The court shall not, in the event of a conviction, be permitted to commit the accused to the Crown Court for sentence.'.

David Kidney (Labour, Stafford)

I call new clause 3 the Scottish amendment. In current Scots law, a class of case exists whereby the accused can be denied a trial by jury through the decision of the prosecutor, not the court. The quid pro quo is that the accused knows that, if convicted and sentenced, the maximum sentence cannot exceed three months' imprisonment. There is therefore a cap, about which the accused, the court and the prosecutor—who determines the court that will deal with the trial—know in advance. The Bill takes a step towards the Scottish system, but does not go the full distance. It proposes that magistrates should make the decision about whether the accused can be tried by jury or whether he will have to be tried in the magistrates court. However, it does not change the law that provides that the magistrates, after convicting, could send the accused to the Crown court to receive a longer sentence than that which the magistrates can impose—a maximum of six months for one case. The new clause attempts to create a closer relationship between decisions made in England and Wales and those made in Scotland about trial and sentencing occurring in the same place. I declare an interest because I am a former solicitor with 20 years' experience in criminal cases. However, I do not currently practise and I have no interest in criminal law other than that of a legislator and citizen. I fall into the category of hon. Members whom my right hon. Friend the Home Secretary described earlier as those who are opposed in principle to the Bill. In fact, I object to the entire Bill, but, in tabling the new clause, I resort to a minor principle of honesty in sentencing. I am supported in that by an editorial in The Times on 25 February. In considering the second Bill, not the original measure, it referred to the danger of people being forced to be tried in the magistrates court against their wishes and being sent to the Crown court for sentencing. The editorial states: It remains unfair for a person to risk a long sentence without benefit of a full trial. In making the change to the law, my right hon. Friend the Home Secretary enjoys the support of most of the police. I have a briefing from the Police Superintendents Association of England and Wales, which was issued in April. I presume that other hon. Members also have a copy. It states that we should all support the Home Secretary's endeavours to "cut the wastage" in the criminal justice system. I am not sure whether the Home Secretary and Home Office Ministers believe that a jury trial constitutes "wastage" in the system. However, my right hon. Friend might agree with the following claim by the association: In further restricting the right of some defendants to elect trial he will go a long way to removing the abuse of the system that many criminals, and some in the legal profession, perpetrate daily in our courts. I could stomach such prejudice if abuses such as overcharging the accused, dropping cases and reducing charges at the last minute were also mentioned. Nevertheless, I refer to that briefing because, at the end, it states: As we see in other jurisdictions, such as Scotland, injustice will not ensue from the removal of the right to elect trial for what amount to relatively minor crimes. In that briefing, the police also rely on the Scottish system as being an exemplar of how the system in England and Wales should be. I would argue that, as a matter of principle, the trial court should deal with the sentence in most cases. The rationale for giving defendants in either-way cases a right to elect is that, if they are at risk of receiving a sentence that is higher than the magistrates can impose, they should at least be given the opportunity to choose to be tried in the Crown court. It is one thing for a defendant, who has voluntarily waived his or her right to jury trial, having been warned of possible consequences, to be committed on conviction to the Crown court to receive a more severe sentence, but if that right is removed the logic should be to limit the power of the magistrates to commit those whom they convict of either-way offences to the Crown court for sentence. My right hon. Friend the Home Secretary and other Home Office Ministers might say that the difference is that they are not going the whole hog on the Scottish system, where the procurator fiscal decides whether there should be a trial by jury. The procurator fiscal has access to the accused person's previous convictions, whereas under the Bill, as we shall hear at great length later tonight when the relevant amendments are debated, magistrates courts will not have access to previous convictions when taking decisions about the place for the trial. My worry is that, in England and Wales, those accused who are denied the right to trial in Crown court will have no guarantee that they will not up end in the Crown court and receive a longer sentence than the magistrates could have imposed. As well as undermining much of the Government's projected cost saving, that is bound to result in justifiable feelings of unfairness among the defendants concerned, given that the magistrates will have told them that their cases are not deserving enough to be tried in the Crown court, but that they are still serious enough to require being sentenced there. The Home Office has conducted various research. One of its research projects suggests that most people who elect to be tried in the Crown court have many similar characteristics to those whom the magistrates send to the Crown court for a sentence beyond their powers. For example. 90 per cent. of those who elect to be tried in the Crown court have previous convictions. Therefore, it is easy to suggest that, if magistrates determine the place of trial in future, they might decide to commit many more people to the Crown court for sentence after conviction than the Home Office currently estimates will happen.

Edward Garnier (Conservative, Harborough)

It is very easy to be misled by statistics, especially those provided by the Government. The figure for those appearing before the Crown court with the records that the hon. Gentleman describes relates to all defendants in all trials. It relates not only to those who elect trial by jury, but to those who have no choice in the matter who are sent to the Crown court either by the magistrates on committal or because the matter for which they are being tried must go before the Crown court. I am sure that the hon. Gentleman would not wish to take at face value the statistics provided by the Government on that matter.

David Kidney (Labour, Stafford)

I entirely accept that point. In so far as the hon and learned Gentleman suggests that perhaps more than a tenth of those who elect trial by jury are people of previous good character, that only goes to support another of my objections to the Bill: people should be entitled to choose trial by jury for what I regard as serious offences. If people are committed to the Crown court for sentence by the magistrates, who have taken upon themselves the right to conduct the trial, because they decide at the end of the trial that the person should receive a greater sentence than they are capable of imposing, that will mean that one of the Home Office estimated cost savings will be lost. After all, the biggest factor in the cost savings is that people will receive shorter sentences of imprisonment from the magistrates court rather than the Crown court. If magistrates do not pass sentence and send people to the Crown court for longer sentences, that cost saving will not arise. I am fortified in that view by a briefing from the Association of Magisterial Officers, which many of us received back in April. The association describes itself as the trade union of magistrates courts staff, so when I picked up the briefing I thought that it would favour the Government's proposal to give more work to magistrates courts and improve the reputation and prestige of its members. However, the association opposes the Bill and says that although the Government claim that it will achieve cost savings, such savings are illusory. If magistrates have to try people who wanted to be tried in the Crown court, they will send more cases to the Crown court for sentencing.

Nick Hawkins (Conservative, Surrey Heath)

The hon. Gentleman rightly referred to the important briefing from the Association of Magisterial Officers, but he did not say that that association is particularly important because it represents a large majority of legal staff who work in magistrates courts, up to and including those employed as the deputy justice's clerk. The Government, if they are to be believed, give the impression that everyone involved with magistrates courts supports the Bill, but, as the hon. Gentleman has made clear, senior staff such as those clerks strongly oppose it. Does he agree that that represents a serious criticism?

David Kidney (Labour, Stafford)

Yes. Almost three quarters of magistrates courts staff are claimed to be members of the association, so it represents a significant body of opinion. Practitioners who might have had an interest in the Bill becoming law oppose it in principle. That is compelling evidence. The Legal Action Group opposes the "clear unfairness" of allowing magistrates to deny trial by jury and commit people to the Crown court for sentence. The new clause would prevent that. If the Bill is a matter of principle for the Government, that principle ought to be that the court that hears the trial should hand out the sentence. If the Government argue that delay is the problem and that they are solving it, surely interposing a procedure whereby a magistrate would send a defendant to the Crown court for sentence would cause delay, not remove it. If their argument rests on cost, I argue that committals for sentence would cause extra cost in themselves because of the practicalities and because sentences dished out in the Crown court would be longer than those given by the magistrates court. For all those reasons, I ask hon. Members to support the new clause.

Humfrey Malins (Conservative, Woking)

I shall speak briefly to support amendment No. 12, which I have tabled and which would achieve much the same as the new clause moved by the hon. Member for Stafford (Mr. Kidney). We are concerned about committing to the Crown court for sentence people who have been forced to accept trial in the magistrates court. A number of members of the judiciary and law practitioners think that it would terribly unfair to say to a defendant, "We've forced you to be tried in this court, but we reserve the right to send you to the Crown court for sentence." At present, the magistrates court tells a person charged with an either-way offence such as a theft that the offence can be tried there or in the Crown court and that he can opt for either venue. However, if the defendant consents to be tried in the magistrates court and is convicted and the magistrate then discovers that he has a string of previous convictions, the court reserves the right to send him to the Crown court for sentence. So far, so good—defendants know what is going on. What troubles me is that, under the Bill, the court may say to the defendant, "We have considered the nature of the case and the circumstances of the offence, and we believe that the punishment that we have the power to impose for the offence is adequate, and we have come to the conclusion that you must be tried here." "Okay, " says the defendant, "if that is what you say." It is a little incongruous to say at the end of a case, if the person is convicted, "Sorry about that. We're going to send you to the Crown court."

Robert Marshall-Andrews (Labour, Medway)

Does not that underline the practical absurdity of magistrates not being able to take previous convictions and character into account when deciding whether someone should be sent to the Crown court? May I ask the hon. Gentleman to reflect on a particular example? Suppose that the defence for someone charged with possession of drugs who has previous convictions for drugs offences is that the drugs were planted because he had refused to be a police informer. That is a perfectly ordinary case. He says that he wants to go to the Crown court, but he cannot tell the magistrates that he has previous convictions. The magistrates refuse him, and he is tried in the magistrates court. When the magistrates find out about his previous convictions, they say that they wish they had sent the chap to the Crown court because he is going there anyway. Does not that illustrate the absolute absurdity of the present state of affairs, and the fact that the Bill will cause enormous delay and immense expense?

Humfrey Malins (Conservative, Woking)

I do not think that anyone in the House could have illustrated the absurdity of the situation better than the hon. and learned Gentleman, whose record is very distinguished. He has hit upon a very good point. It seems slightly odd to me that that can be expected to happen. It also seems slightly unfair, and I should be grateful if the Government would reconsider that possibility.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I apologise to the hon. Member for Stafford (Mr. Kidney) for arriving slightly late. I heard the end of his speech and all that of the hon. Member for Woking (Mr. Malins), and I understand the argument. I support in general—because it is logical—the proposition that people should know in advance the potential consequences for them of a certain plea, but I want to make a point that is slightly different from those that have been made so far. If ever there was an argument for not legislating now, it is evidenced by this debate. We should consider the terms of reference for the Auld committee. A review is in progress: Lord Justice Auld is going around the country collecting evidence. He is also going abroad and looking at other jurisdictions, and considering the Scottish experience. He has asked some profound questions, which relate to issues such as this but which also go wider. He asks, for example, whether there should be only one form of court. Should the magistrates court and the Crown court be merged to avoid the committal process? Should there be two types of judge, a full-time professional judge and a part-time lay judge? Should the work be divided between them, but in the same court? Should there be different rules about who might be on a jury? Many of us are disqualified from jury service. Is the way in which we form juries correct, or ought we to review the methods of selection in order to include people who may currently be excluded? Some say that juries are currently very unbalanced, because many "professional" people submit the equivalent of sick notes, with the result that juries do not represent the true balance of the community as we would wish them to. Should there be more stipendiary magistrates, or more lay magistrates? We could have an important debate about that. Which would command more confidence among the electorate, and the public as a whole? Which would cost more?

Alan Haselhurst (Deputy Speaker, Saffron Walden)

Order. May I invite the hon. Member to home in on the new clause? He is buzzing around it rather too much.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I am trying not to do that, Mr. Deputy Speaker. I am trying to make the point that the question whether a limit should be placed on the sentencing power of the lower court is one of a set of interrelated questions that ought to be considered together. We could say, "Yes, this is logical in itself", but many earlier questions should be answered before we answer the question posed by the hon. Member for Stafford. I shall be interested to hear the Government's reply, but I would be far more interested to hear that an up-to-date objective assessment will be available to us by December this year. Lord Justice Auld has said that he expects to report in December, that he is on time, and that he expects to have the evidence. It would be good for the parties to have an opportunity, in the run-up to the general election, to decide how to respond. We could each submit our views in our manifestos: we could have considered internal party debates, and could go to the electorate with our views. We could have a real debate about the best criminal justice system. That debate might include a view about whether the sentencing power of the lower court—assuming that the two-tier court structure is retained—should accord with the Scottish system. In Scotland, once someone knows that he will be dealt with in the lower court—whether he has chosen that, or has been told that it will happen—he knows that the tariff cannot be changed, that the possible sentence cannot be upped, and that there is no risk of a complete change in the balance of prejudice or disadvantage. Finally, let me make a practical point. Like others, I speak from experience. As anyone who has been in court will know, an important consideration for defendants is what the potential sentence will be. That consideration is bound to influence a plea. People sometimes plead guilty although they are not guilty, for all sorts of reasons. If they think the sentence will be limited, they may feel that the risk is worth taking. It should be borne in mind that taking away a right will also take away a power, and may disadvantage a person further. My colleagues and I are unhappy about taking away that right: we have already argued our case. We will not support the Bill on Third Reading, however it may have been amended, because we think that the process has been dealt with in the wrong way. However, both the hon. Member for Stafford and the hon. and learned Member for Harborough (Mr. Garnier) ask perfectly proper questions. This should be one of a series of interconnected considerations, on which we should reach a comprehensive and serious view

Charles Clarke (Labour, Norwich South)

My hon. Friend the Member for Stafford (Mr. Kidney), with whom I have served on the Select Committee on the Treasury, has a strong and genuine view, which he has held throughout. I pay tribute to the integrity with which he consistently makes his case. I think I am right in saying—he will correct me if I am wrong—that his fundamental objection is to the approach taken throughout the Bill as a whole and that, even if the new clause were accepted, that would not change his view about the matter as a whole.

David Kidney (Labour, Stafford)

indicated assent.

Charles Clarke (Labour, Norwich South)

My hon. Friend confirms that that is his view. [Interruption.] The Whips suggest that I was trying to bargain, but there was no doing business there. However, joking aside, I appreciate his confirming that. I am glad that he has made the position clear. I will deal with my hon. Friend's points in reverse order. On the illusory savings point, I addressed that at great length in Committee. The Government rest their case on the Bill being a modernisation of the criminal justice system, which is justified in its own terms. We are required under the law of the land to set out our estimate of the savings. We must set out in a memorandum our estimate of the savings, which we have done honestly and directly, but the Bill does not rest on the accuracy of those assumptions or, indeed, on the fact of there being savings at all. It is possible that the assumptions that we have made will not, in practice, turn out to be exactly as we predict. That is entirely understandable, but that does not, in our view, change the case for or against the Bill in any respect, because it is about modernisation of the criminal justice system. My hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) raised points about the reputation issue, which, if he permits me, I shall deal with in the discussion on the next group of amendments—which addresses that point directly—rather than reiterate my points now. The hon. Member for Southwark, North and Bermondsey (Mr. Hughes) advances the argument for delaying all this—again, we discussed the matter in Committee at some length—to wait for Auld, as it were. I accept that there is a perfectly coherent argument for that, although I do not accept—I have not accepted it with any process of commission change, inquiry or review of any part of the Government's work—that that inquiry or review, whatever form it takes, should prevent reform as we go forward; in this case, it takes the form of the Auld inquiry. There is a case for looking at it in the way he suggests, but I do not accept that case. 1 do not think that it is right.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Can the Minister explain why the Government commissioned a senior Lord Justice to conduct an inquiry, specifically asking him to address that question, if, in the meantime and since he was asked to do it, they have been determined to legislate when they have not had any answer? I do not understand the logic. They did not do it on fox hunting—they set up a commission, got the inquiry and then announced how they were going to proceed.

Charles Clarke (Labour, Norwich South)

The terms of reference of the Auld inquiry go far wider than simply the mode of trial issue. By the way, the first mode of trial Bill was presented before Mr. Justice Auld was appointed. We embarked on that course of action because we thought that the reform was justified in its own terms. As I say, there is a perfectly respectable argument that says that we should not do anything about any of these things until Auld reports, but I do not accept that argument and nor do the Government.

Edward Garnier (Conservative, Harborough)

The point I wish to make follows on from what from the hon. Member for Southwark, North and Bermondsey (Mr. Hughes) said. Let us assume that the Bill becomes law, but that, none the less, Sir Robin Auld in his inquiry reaches a completely different conclusion about the value of the jury. What will the Government do then?

Charles Clarke (Labour, Norwich South)

We will look at all Sir Robin Auld's recommendations. I do not think the issue is about a verdict on the value of the jury. There is no issue about the value of the jury. I was going to address a point made by my hon. Friend the Member for Stafford on the matter. I do not share the view that jury trial is wasteful, in the wording of the briefing from which my hon. Friend read. I do not think that is a correct way to look at it. I do think that aspects of the way the criminal justice system works are inefficient and ineffective, and it is reasonable to look at that from a wide range of points of view. That is what the Bill is about, but the word "wasteful"—I agree with my hon. Friend—is wrong. In the same way, I do not think that anything we do in the Bill prevents us from looking carefully at precisely what Sir Robin Auld recommends when he comes to do so, but the core point was raised by my hon. Friend when he described the measure as the Scottish amendment. He talks of the trade-off between the sentencing powers and the prosecutor taking the decision. Much was made by the hon. and learned Member for Harborough (Mr. Garnier) about what my right hon. Friend the Home Secretary said about the Scottish example. The point of that example is that in the Scottish system—a completely different system, as is acknowledged by all parties in the debate—the prosecutor takes the decision as to the mode of trial. We are not proposing that. That is simply not the proposal in the Bill and before the House. We propose that a magistrates court—a magistrate—takes that decision, not that the prosecutor takes it, so the trade in the proposal is simply not appropriate to this situation. example that my hon. and learned Friend the Member for Medway gave, and to which the hon. and learned Member for Harborough referred, was just that—an example. The defence's ability to choose in these circumstances is not absolute. 9.45 pm The fact is that this group of amendments would remove the ability of the magistrates court to commit a case to the Crown court for sentence if there has been a mode of trial hearing. It has long been a feature of our criminal justice system in England and Wales that the magistrates have a power to commit a case for sentence if the circumstances of the offence suggest that the punishment that the court would have to impose following a conviction would be inadequate. We believe that there is nothing inherently unfair with that procedure, as a defendant will generally be committed to the higher court for sentence only because his previous criminal record has aggravated the offence. Our estimate is that, as a result of the Bill, about 8 per cent. of formally electing cases will be committed to the Crown court for sentence.

David Kidney (Labour, Stafford)

I cannot forbear from saying that the practice of magistrates committing for sentence after the trial is as long-standing as the accused's right to choose trial in the Crown court rather than the magistrates court. However, that is by the bye. My hon. Friend said that the Scottish system was different because, in that system, it is the prosecutor who takes away the accused's right of jury trial, whereas, in the Bill, it will be the magistrates who do it. However, the principle of the two systems is the same, as the accused will not have a choice in either. What difference does it make if the prosecutor rather than the court makes the decision?

Charles Clarke (Labour, Norwich South)

I think that there is a qualitative difference—perhaps my hon. Friend does not share this view—between the decision on mode of trial being made by the prosecutor and the decision being made by a court with a right of appeal to the Crown court. l do not think that the two processes are the same thing at all. I think that the decisions are quite different in character and in approach, and that, therefore, there is no comparison between them. As I said, the Scottish system has an entirely different history and set of circumstances, and it deals with the matter in that way. I think that there is a difference in approach that should be reflected quite directly in our system. Our critics have suggested that there will be many more cases in which defendants are committed for sentence because so many who opt for that route have lengthy criminal careers. However, it does not automatically follow that defendants have to go to the Crown court for sentence just because they have a long criminal record. We believe that magistrates are able to deal with most defendants' previous records without committing them for sentence. Nevertheless, the power to commit for sentence is an important safeguard. It ensures that the courts can impose an appropriate punishment in cases that unexpectedly turn out during the trial to be more serious than was anticipated, or in cases in which a defendant's previous conviction has seriously aggravated the offence

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Before the Government presented their proposals, did they consider the Scottish option of the prosecutor making the choice? Did they also consider the option of limiting the right to commit cases to the Crown court? Did Ministers evaluate those options, and can they present any evidence to support their conclusions?

Charles Clarke (Labour, Norwich South)

There was very full consideration of those issues. My hon. and learned Friend the Member for Medway has already mentioned the royal commission and all the processes surrounding it. I have to confess, however, that I do not think that very full consideration was given to the idea of going straight to the prosecutor, as the hon. Gentleman suggests, simply because most people in this country would think that that is a proposal too far. Therefore, although the option was on the agenda for discussion, I would not say that it was considered very fully. I think that most hon. Members and most members of the public would not think that using the prosecutor in that way is the right way to proceed.

Robert Marshall-Andrews (Labour, Medway)

With respect to my hon. Friend, I wonder whether he will deal with the central point. How can it be right that a magistrates court can take upon itself the responsibility to try a case, knowing nothing of the defendant's previous convictions, but then abnegate responsibility for sentencing that person when they do? Does he not understand from his experience that the two cannot be divorced and that the nature of the defendant's background impinges on the trial? What my hon. Friend is asking magistrates to do is not only wrong but impossible.

Charles Clarke (Labour, Norwich South)

I understand that. It is a powerful argument for the reputation clauses in the first Criminal Justice (Mode of Trial) Bill that was considered by the other place. It was a case against which he, along with many others, argued. Indeed, he argued against the whole Bill, as he is entitled to do. There is a case for bringing in reputation. It is one that the Government were prepared to consider directly, but many hon. Members, including my hon. Friend, argued that we should not do so. I have attempted to deal with the arguments that have been made. I hope that my hon. Friend the Member for Stafford will consider withdrawing his new clause. If he decides not to do so, I will urge my colleagues to vote against it.

David Kidney (Labour, Stafford)

I am grateful for, but not thrilled by, the support that I have received from Opposition Members. I am especially grateful for all that the hon. Member for Southwark, North and Bermondsey (Mr. Hughes) said because it accords with my view that the Bill is wrong in principle, that the Lord Justice Auld review ought to consider all the matters together and that we should not take this one out of context now. As the hon. Gentleman was not here when I spoke, I should just mention that in its briefing the Association of Magisterial Officers set out a number of practical changes in the procedures of the magistrates and Crown courts which would go a long way to meeting the Government's objections to the state of affairs in those courts. My hon. Friend the Minister found me out very early. I would be against the Bill even if he accepted the new clause. It would be a self-indulgence to insist on a vote when other important issues remain to be debated tonight; so with the leave of the House, I beg to ask leave to withdraw the motion.

DETERMINATION OF MODE OF TRIAL

Humfrey Malins (Conservative, Woking)

It occurs to me that we now have approximately one hour to debate not only this but other groups of amendments. That imposes on me the need to be brief because other right hon. and hon. Members want to speak. This group of amendments relates to matters to be considered by the court when determining mode of trial. I speak initially to amendment No. 5, but I shall also speak to my amendments Nos. 6, 9 and 8. Amendment No. 5 refers to taking into account any written representations from the victim. Amendment No. 6 would make the clause read that the court shall consider any of the circumstances of the offence and of the accused rather than but not of the accused. Amendment No. 8 entitles the court to take into account the antecedents of the accused in reaching its decision. Amendment No. 9 is merely a tidying up. I recall the Home Secretary saying at the beginning of our proceedings this afternoon that he could do business with the Opposition on the reputation clause, so I look to the Government tonight to take into account what they hear and to promise to do something in the spirit of what is suggested.

Charles Clarke (Labour, Norwich South)

To clarify the terms of trade, as it were, if the Government accepted amendments on reputation, would the hon. Gentleman support the Bill, and does he believe that his Front-Bench spokesmen would?

Humfrey Malins (Conservative, Woking)

I cannot speak for the Front-Bench spokesmen, and the nearest I have ever got to the Front Bench is to go and ask the Whip on duty what time the next vote is. I therefore have to speak for myself alone. Much reference has been made to trial by jury, magistrates or stipendiary magistrates. I do not think that the House would wish us to talk in terms of having a better trial in one venue or another. As I said on Second Reading, a trial before a lay bench can be very good or very bad, depending on the day. The same applies to a stipendiary magistrate and to a jury. It is not so much about having a better trial, because all the venues can give a defendant a wonderful trial or not such a wonderful trial, depending on the circumstances. It is a question not of a better trial but of a different trial. We have to focus on defendants' ability and need, and hitherto their right, to ask for a jury trial because it is what they want. The hon. and learned Member for Medway (Mr. Marshall-Andrews) is to be congratulated on everything that he has done on the general theme of taking all the factors into account—including the effect on the reputation of a defendant, when that is at stake. That is why I shall speak briefly and then hand over to other Members who want to contribute to the debate. It is important that, when the court considers whether the offence should be tried summarily or on indictment, it should be fully informed on the case. That means everything; it does not mean holding back from the court some of the defendant's background in respect of his previous convictions. I should have much less objection to the Bill if it permitted magistrates, when hearing representations, to hear from the defence much more about the defendant—about his or her background and antecedents, his or her life style, job or reputation—or, for example, to hear what victims think and what the effect has been on them. If one is to make a decision about punishment and mode of trial, it is important for the court in question to be fully informed as to the background. On Second Reading, the Home Secretary said, as though it were the most powerful argument: It cannot be right that we continue to allow repeat offenders with strings of previous convictions to demand full Crown court trials for trivial offences that can and should be heard in magistrates courts. He continued: A 26-year-old man with 15 previous convictions covering a total of 63 offences, including 36 offences of theft, elected trial for the offence of stealing one bottle of champagne. I ask the House whether it is sensible to have a system that allows that kind of election for trial.—[Official Report, 7 March 2000: Vol. 345,c. 888-95.] Let us suppose that the Home Secretary is right. Under my amendments, what would happen? The court would hear everything about the defendant from his own lips—including his antecedent history. In the case of the person with the 63 previous, who has stolen a bottle of whisky, the court could—under my proposals—say that no, that person would be tried in the magistrates court, or the court could say yes if that was just. The Home Secretary's point would thus be completely covered. If the Minister thinks that is not so, he must tell me. Likewise, under my proposals, the defendant who wants the court to take into account the fact that he is a person of entirely good character and would like to be tried by his peers can say that to the court. The court can then take that into account. If it decides against the defendant, that decision is subject to appeal to the Crown court.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

If the hon. Gentleman's proposals were accepted and magistrates courts heard the panoply of arguments, would that court have no further jurisdiction after it had decided on the mode of trial? Thereafter, would different magistrates and a different clerk have to deal with that defendant? When any such group had dealt with a defendant, those people could no longer be involved in the case.

Humfrey Malins (Conservative, Woking)

It is common practice that one cannot try a case in a magistrates court if one has heard the bail application. It is as simple as that. When I hear bail applications, I hear all the antecedent history and am thus debarred from taking the trial. That is everyday practice in magistrates courts. There would be a fresh bench. It is miserable not to permit a court to take into account everything about the defendant—including background, antecedent history, previous convictions and general reputation. That is wrong, unfair and unjust. If the magistrates court makes the wrong decision, the Crown court can put it right. I venture to suggest that, if my amendments were accepted, most people would think that the position was much fairer than it is at present.

Edward Garnier (Conservative, Harborough)

I speak to amendment No. 19, tabled by myself and other Opposition Members. It would insert in clause 1, and thereby in section 19 of the Magistrates' Court Act 1980, a further paragraph. At the moment, section 19(1) of the 1980 Act, as amended by clause 1 of the Bill, would say:

BUSINESS OF THE HOUSE

Edward Garnier (Conservative, Harborough)

The Act would say: (1) The court shall consider whether the offence ought to be tried summarily or on indictment. (2) For the purpose of subsection (I) above the court shall consider— (a) the nature of the case; (b) any of the circumstances of the offence (but not of the accused) which appears to the court to be relevant; and (c) whether, having regard to the matters to be considered under paragraph (b), the punishment which a magistrates' court would have power to impose for the offence would be adequate. We ask that there should be a further paragraph (d) which reads: whether in all circumstances of the case a denial of jury trial would impinge upon the rights not only of the accused but also of the community at large to have the matter considered and adjudicated by a jury. I make it clear at the outset that my arguments, and those of my party, against the Bill as a whole do not depend on attacking or denigrating the lay magistracy. Magistrates do a magnificent job, for no pay and mean expenses. Over 90 per cent. of all cases that fall within the criminal or quasi-criminal jurisdiction go before magistrates. That includes parking and motoring matters, licensing applications and cases that we would all recognise as criminal. Magistrates form a vital part of the jigsaw of local justice, which the official Opposition want to strengthen and enhance. Our argument is not that magistrates cannot do the job that the Bill gives them, but that, as a matter of justice and fairness, they should not have to. The right to jury trial has always been regarded as central to our system of criminal justice. That is because the system, unlike many others, is adversarial. Serious criminal cases brought by the state should not be tried by the state's appointees, but should be tried by fellow citizens drawn at random. That has always been regarded as particularly important to defend the rights of minorities and dissidents who are likely to be, or could be, unpopular with judges and appointed magistrates. The truth of that proposition—I should have thought that the contrary was unarguable—has been tested in a great many cases throughout history, but I just want to refer to two examples, in relatively recent times. In 1975, a young, former South African, active campaigner against apartheid was charged with theft from a bank. There remains considerable suspicion that the case was a set-up by the South African security services. The case was vigorously prosecuted, but the jury at the central criminal court in London would have none of it, and the defendant was properly acquitted. He is now a Minister of State in the Foreign and Commonwealth Office. Under the terms of the Bill, there is a near certainty that he would now be denied jury trial.

David Lock (Labour, Wyre Forest)

rose—

Edward Garnier (Conservative, Harborough)

Will the hon. Gentleman allow me to finish the paragraph? The second example that I would like to bring to the attention of the House is that of Clive Ponting, who was tried at the central criminal court, just after the Falklands war was completed, for leaking Government documents relating to the Belgrano. Despite directions from the trial judge, in effect to—

Tam Dalyell (Labour, Linlithgow)

On a point of order, Mr. Deputy Speaker. Ponting did not leak those documents. He sent them to me, and I treated them as a proceeding in Parliament.

Edward Leigh (Conservative, Gainsborough)

My hon. and learned Friend the Member for Harborough (Mr. Garnier) mentioned the Belgrano.

Edward Garnier (Conservative, Harborough)

Let me—[Interruption.]

Edward Garnier (Conservative, Harborough)

Let me accept, in the spirit of cross-party co-operation, that what the hon. Member for Linlithgow (Mr. Dalyell) said is perfectly right, but I am aware of the way in which time is marching on and I do not consider that the fact that that particular detail was not included in my remarks alters the thrust of what I am attempting to say. Undeniably, the hon. Gentleman knows more about the facts of the Clive Ponting case than most of us, but the point is that Clive Ponting was acquitted despite the vigorous directions of the judge. A further reason why we submit that paragraph (d) should be added to the section is that the ethnic minority communities, or a large number of members of those communities, have a perception that they do not receive equal treatment in front of the magistrates. No one suggests that that is a universal practice, but it is a strongly held perception in such groups. The right to elect trial is the most valuable method of curing problems—both real and perceived. I make that point as a public supporter of the lay magistracy—I made that clear earlier—and even though I do not share the perception of ethnic minority communities that they do not receive equal treatment before lay magistrates. Magistrates will decide whether a case should remain with them or go to the Crown court. Unless they bear in mind such considerations, and bear in mind the rights of the accused and the rights of the community at large, who both have an interest in seeing that justice is done, they will arrive at what will be seen as unfair decisions. Any number of bodies interested in criminal justice—they range from the Criminal Bar Association to the Society of Labour Lawyers—find this Bill wholly objectionable. To a small extent, their concerns might be mitigated were paragraph (d) in amendment No. 19 to be inserted into the Bill. Of more importance than the concerns of the Criminal Bar Association, the Bar Council, the Society of Labour Lawyers, the Society of Liberal Democrat Lawyers or, indeed, the Society of Conservative Lawyers are the concerns of the Society of Black Lawyers. When such a body, speaking out of genuine interest and genuine knowledge of the fears of its community, expresses doubts about the wisdom of the Bill, the House should pay careful attention. In making those remarks, I remind the House and, in particular, this Home Secretary of the concerns of Mr. Imran Khan, the solicitor instructed on behalf of the Lawrence family to appear for them at the Macpherson inquiry. I also remind the House of the words of Mr. Peter Herbert, the chairman of the Society of Black Lawyers. He said that it feared that the Bill, without the corrections that we seek to make to it, would add to the loss of confidence in the summary justice system that many of its clients already have.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

It would greatly assist the House, and certainly my hon. and learned Friend's colleagues, if he would tell us what his opinion of the Bill would be if the Government accepted amendment No. 15, which was tabled by my right hon. and learned Friend the Member for North-East Bedfordshire (Sir N. Lyell) and which would include the reputation and livelihood tests. Although 1 am against the Bill, if Ministers were to accept that amendment, I would regard the Bill as greatly improved to the point that I would probably withhold my opposition to it on Third Reading. It would help if my hon. and learned Friend would tell us the view that Opposition Front-Bench spokesmen take of amendment No. 15.

Edward Garnier (Conservative, Harborough)

I am happy to do that. In my view, the Bill is fundamentally flawed from top to bottom and I do not believe that the House should give it passage. I am not as charitable as my right hon. and learned Friend in thinking that even an amendment tabled by my right hon. and learned Friend the Member for North-East Bedfordshire (Sir N. Lyell) would cure the fundamental objections that the official Opposition have to the Bill. I made my views on what the future of the Bill should be clear on Second Reading. I have heard and learned nothing from the Government to persuade me that the view that I took then was wrong. The principle that I supported on Second Reading in opposition to the Bill is one that should honourably be maintained. I am not persuaded that any tinkering—even if it might mitigate some of the worst effects of this bad Bill—would overcome my overall principled objections.

Charles Clarke (Labour, Norwich South)

This point is similar to that made by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg). Am I correct in my understanding that the Opposition Front-Bench position will not change, whatever amendments we may pass this evening?

Edward Garnier (Conservative, Harborough)

The position is entirely clear—this is a bad Bill in principle. We spoke and voted against it on Second Reading. Although I understand the practicalities of the voting arithmetic and I know that the Bill will move to another place, I am happy to say that this is a bicameral Parliament and it is up to the other House to add their views to those of this House before the Bill becomes an Act.

Edward Leigh (Conservative, Gainsborough)

The point made by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) is very important. Towards the end of the Committee proceedings, it was clear to me that the Government were considering making a concession on this point. I see the Minister nodding. I hope that further discussions can take place on amendment No. 15, which is vital because it would greatly improve the Bill if magistrates could take into account someone's good character.

Edward Garnier (Conservative, Harborough)

Further discussions may well take place, but I will not negotiate with the Government across the Dispatch Box. I repeat that this is a bad Bill in principle, and, as the Opposition spokesman, it is my job to argue—cogently, I hope, and with some persuasion—against the principle. I think that I have the support of the Opposition and of the Liberal Democrats. If the Government want to table amendments, we will consider them. As I said a moment ago, I cannot control the destiny of the Bill. The Government have the majority, and we are merely interested bystanders.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

Participating bystanders.

Edward Garnier (Conservative, Harborough)

We are interested and participating bystanders, but, to the extent that this is a joint enterprise in the sense of the criminal law, I can acquit myself of having been guilty of supporting the Bill.

Dominic Grieve (Conservative, Beaconsfield)

Does my hon. and learned Friend agree that the Minister's questions are rather strange? Either the Bill will be improved by such an amendment, and the Minister thinks so, or it will not be. If it will be improved, the Minister should be ready to accept that without giving the impression that it is a concession in return for something else.

Edward Garnier (Conservative, Harborough)

That is a fair point and it was well made. If the Government want to make the Bill less bad, let them do so—they have the power to do so—but it is not my job, on behalf of the official Opposition, to tear up my principles and my principled objection to the Bill simply because the Minister and the Home Secretary have been embarrassed this afternoon. I am sure that Liberal Democrat Members agree.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I certainly associate myself with that view. Does the hon. and learned Gentleman agree that if we were to introduce a means to decide the venue by requiring the defendant to provide information on his antecedents, there would be greater prejudice against someone with a criminal history, even though that history might be irrelevant to the offence that they had been charged with?

Edward Garnier (Conservative, Harborough)

The Government have introduced into this debate and earlier debates many points that do not address the serious problems that we are having to face as a consequence of the Bill's introduction. If the Government want to make suggestions about how they can mitigate the Bill's worst consequences, that is a matter for them. I am not prepared to allow them to amend the Bill on the hoof this evening. I shall conclude because I know that other Members want to contribute to our limited discussions. I have made the point about the ethnic minority communities, and there is a valid point that the public interest would be served if the interests of the community at large could be considered by the court in deciding venue. I hope that the House will agree. The criminal justice system is largely consensual. We do not have—I know from experience as a recorder—armed guards and prisoners in shackles, restrained in the dock. Indeed, a number of defendants in court before me have sat not in the dock, but in the lawyers' seats just a little way from the judge's bench. The reason why defendants are left in court by themselves almost, on trust, is that, guilty men are sentenced—perhaps unfortunately, from their point of view, to a long term of imprisonment—knowing that they have been justly convicted by their fellow citizens who have heard the evidence during a trial. The Government are putting in danger the consensual nature of our criminal justice system. It is all the more important that the consensual issue is reflected through the addition of amendment No. 19. I appreciate that my overriding objection to the Bill is one of principle, of which I spoke on Second Reading. Nothing that the Government have said or done since has tempted me to move from that position. If we are to have an appalling Bill, let us do our best to mitigate its appalling consequences

Gareth Thomas (Labour, Clwyd West)

I speak as someone who has grave reservations about the wisdom of proceeding with the Bill, especially in the light of the fact that the Auld commission has been charged with the task of comprehensively reviewing the criminal justice system. Incidentally, I also speak as a member of the Bar. I tend to support the Government on the amendments. Although many hon. Members have raised valid points concerning the reputation clause, I take the view that, logically, it is right, in order to avoid the possible charge that a reputation clause is socially divisive, for the Government to have moved—they take the view that the venue should be determined judicially and not left to the defendant—to a neutral position on the antecedents of the defendant, having clearly been stung by criticism levelled against the Bill in the other place. I see the force in the argument that allowing weight to be given to reputation and antecedents would create the danger of a socially divisive system—a Rolls-Royce system for those with an unblemished character and a summary trial system for those, perhaps including very many members of ethnic communities, who have records.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

It is difficult for the court to form a view of whether punishment would be adequate, as it is directed to do under proposed new section 19(2)(c), without knowing the antecedents of the accused. In the absence of knowledge, it is difficult to determine an appropriate penalty.

Gareth Thomas (Labour, Clwyd West)

I take on board what has been said. Although I have made broadly positive comments about the clause, the Government should address the following point. Does not common sense suggest that a bench of magistrates will, one way or another, want to take into account the character of a defendant? Even if magistrates do not want to do so, is it not true, given what some uncharitably call the intellectual dishonesty of this country's higher judiciary and others call their simple ingenuity, that a body of precedent will develop on appeal—the principle of interlocutory appeal is embedded in the legislation—which will in some way or another bring into play the question of character? My hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) has told us that the previous Lord Chief Justice pointed out that it is unrealistic to expect decision makers not to take into account a defendant's character in some way, so how confident can the Government be that antecedents will not come into play at the end of the day?

Edward Leigh (Conservative, Gainsborough)

I have a lot of respect for the hon. Gentleman, but I do not think that he is being fair to the Government, because the Bill is absolutely clear. New section 19(2)(b) states that the court can consider any of the circumstances of the offence (but not of the accused)… Therefore, no case law can develop because the magistrates court will not be able to consider the circumstances of the accused. Considering antecedents is not socially divisive: men and women of good character can come from any social background.

Gareth Thomas (Labour, Clwyd West)

Given that the hon. Gentleman is a member of the Bar, I am surprised that he underestimates the courts' ingenuity in getting around such provisions. I draw his attention to new section 19(2)(a), which states that the court can take into account circumstances including the nature of the case. I have a bald question for my hon. Friend the Minister to answer, if he can. Is it his understanding that a case that lawyers might describe as "a typical shoplifting case", in which the only issue is dishonesty and the defendant is of previous good character, would have to remain in the magistrates court? To what extent is that a realistic assessment, given that, as we know, the previous Lord Chief Justice is not alone in taking the view that common sense suggests that character must be taken into account? I sense that the Government are ambivalent about the issue. It is clear that they were stung by the arguments advanced in the other place that the first Bill would have been socially divisive. However, in view of the throwaway remark that my right hon. Friend the Home Secretary made earlier tonight, that the Government were prepared to "do business" on the question of the reputation clause, I wonder whether they know what they want to do in that respect. Given that others want to participate in this debate, I conclude my remarks on that note.

Sir Nicholas Lyell (Conservative, North East Bedfordshire)

I rise to commend amendment No. 15. First, however, I should make it clear that I regard the Bill as fundamentally unsound and I do not believe that the requests for a bargain made by Home Secretary and the Minister of State are appropriate. It is the duty of the Opposition to oppose and then to try to improve a Bill if they can. The Bill is a bad one, but it would be less bad if my amendment were made. Amendment No. 15 would ensure that, in deciding where trial shall take place, the court shall be entitled to take into account all the circumstances, both of the offence and of the accused. The Lord Chief Justice—who supported the first Bill, which I did not—recommended that provision, and the Home Secretary knew that when he introduced the current Bill; regrettably, however, the right hon. Gentleman left the impression that the Lord Chief Justice supported the Bill as it stood. The Bill would be a better Bill if it were amended as I propose. I tabled an amendment similar to amendment No. 19 in Committee, and I should like to speak in support of it now. When we are considering jury trial, it is not only the rights of an accused to be tried by jury that should be taken into account. There are the rights also of the citizens of this country as a whole, expressed through each little parliament which a jury constitutes, to set the standards of criminal justice. It is one of the great linchpins of our democracy. This is nothing theoretical. I can say as a former Attorney-General that when we—the Director of Public Prosecutions, the director of the Serious Fraud Office, or other senior prosecutors—came to discuss cases and questions of prosecution, one of the matters that was always considered was whether a jury would be likely to convict in the circumstances of the case. That is a salutary consideration for those who have the honour to govern the country from time to time. It is not the Government who decide the criminal prosecution system. The Attorney-General and the Law Officers as a whole are Her Majesty's Law Officers and they stand independently in a quasi-judicial position. It is salutary that they should consider the views of ordinary people.

Dominic Grieve (Conservative, Beaconsfield)

It is all the more remarkable that little parliaments exist to deal with matters that the Government consider so trivial that they do not wish a person to have that protection.

Sir Nicholas Lyell (Conservative, North East Bedfordshire)

That is why the Government are deeply mistaken in their view. As my hon. Friend says, one of the great benefits of our system of justice is that it is largely consensual. One of the reasons for that is the huge spectrum of either-way cases where people have a right at present to choose trial by jury. If they want trial by jury, they choose it. If they do not, they accept the system. Either way, and even if they plead guilty later, they are confident and comfortable with the system of justice which we in England and Wales are proud to have and regard as second to none.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

On amendment No. 19, does my right hon. and learned Friend agree that there are cases where the prosecution might be deemed oppressive or the procedures adopted by the prosecution authorities might be deemed unreasonable? In such cases, the jury might refuse to convict. The refusal of the jury is a proper constraint on the ability of the prosecution to prosecute, or on the ability of the police to prosecute in the way that they did.

Sir Nicholas Lyell (Conservative, North East Bedfordshire)

I agree with my right hon. and learned Friend. It is a protection against tyranny; it would be a fundamental mistake to seek to remove it.

Robert Marshall-Andrews (Labour, Medway)

I say somewhat unwillingly that I cannot support the amendments, which would effectively reintroduce the livelihood and reputation clause. As much of the debate has been spent by the occupants of the Government Front Bench telling those of us who fought against the clause, "There you are, it is all your fault", perhaps I might go into a little history, which will take not very long. Jury trial has long been in the sights of a number of people, not a million miles away from the Treasury, who believe that people going to it who are not charged with terribly serious offences are getting Rolls-Royce treatment which they do not deserve. It has long been the idea that that treatment should be taken away from them. They hit what appeared to be the immovable rock that, for some people with great reputations, livelihoods and jobs—not necessarily posh people or rich people, but people who have fought against the system and managed against all the odds to make themselves respectable and to have jobs—the loss of livelihood is far more important than it is for many others who are charged with much more serious crimes. Thus there was a problem. It was overcome by the Runciman commission, which introduced the reputation solution. Thereafter, it was enthusiastically endorsed by a number of others. I quote: There will be safeguards, including a requirement on magistrates to consider the effect of conviction on a defendant's reputation and livelihood when considering the mode of trial. That was my right hon. Friend the Home Secretary at the beginning of the Bill's consideration. He was speaking not to the House, because the Bill was not announced in the House. It was announced at the Police Federation, at which my right hon. Friend made a speech indicating how central and important "reputation and livelihood" were if unfairness was not to be created. Of course, the Home Secretary missed the point, which was well set out in the House of Lords—that a safeguard is created for one class and immediately removed from another, creating partial justice. What is partial justice? Is it worse than justice given to a few? The Government's solution was to take justice away from everybody. Nobody could have it. That was the result. Now, reputation cannot be taken into account at all. The crass absurdity of that position is emphasised time and again by anybody who knows anything about the criminal justice system. It will give rise to massive injustice and cause huge delay. 10.30 pm The point raised by my hon. Friend the Member for Clwyd, West (Mr. Thomas) was absolutely right. Shoplifting offenders are now out of the system. They will not be able to have jury trial at all. The position is worse than that. The example was given of Mr. Peter Hain, as he then was, before he became Minister of State. I can tell the House that his chances of getting a jury trial under the Bill would be very small, if not non-existent. Moreover, if he had been tried in front of a stipendiary magistrate in the south-western magistrates court, in the atmosphere prevailing when the antiapartheid movement was active, his chances of acquittal would have been zero. If that is what those on the Front Bench want to impose on people in this country, I am extremely surprised. It comes from a Government who we always believed would uphold the traditions of civil liberty.

David Taylor (Labour/Co-operative, North West Leicestershire)

I thank my hon. and learned Friend for giving way. No doubt he would agree that reputation and livelihood can be central issues, but is it not the case that many offences are at present summary only, and that the charge could damage the reputation and livelihood of the accused? I cite as an example indecent exposure by a minister of religion.

Robert Marshall-Andrews (Labour, Medway)

That is right, and a line must be drawn somewhere. That line should be very low; it is probably drawn too high at present. However, it should not be extended to offences of dishonesty, which can ruin and destroy reputations and are much more prevalent than the type of offences cited by my hon. Friend.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I am grateful to the hon. and learned Gentleman. He is opposing amendment No. 15 on the ground that it induces two classes of justice. I think that he would agree that, when it comes to sentencing, there are by his own criteria already two classes of justice, because the court, when determining whether to send to the Crown court for sentence, will necessarily have regard to the antecedents of the accused appearing before that court.

Robert Marshall-Andrews (Labour, Medway)

That is because the magistrates' powers are limited. It is not merely a question of their wanting to go further on a sliding scale. If they want to impose a sentence of more than six or 12 months, or whatever the limit is, they must commit. Before that, under the present system, they would not know about the antecedents. The explanation is perfectly reasonable. I maintain my opposition, which is based on the partiality of justice. The Bill is rotten at its core. Everybody who practises in the criminal justice system, outside the Magistrates Association and the Police Federation, knows it in his heart. I implore the Government, while there is still time, to rethink the legislation.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I add my support, along the lines of the argument of the hon. and learned Member for Medway (Mr. Marshall-Andrews). The amendments in the present group do not solve the difficulties of the Bill. They do not make a bad Bill a good Bill. There is one amendment in the group that has the joint support of those on the Conservative Front Bench and my hon. Friends and me. It seeks to make sure that there is a consideration of the wider public interest. That was well expressed, if I may say so, by the former Attorney-General. The central argument for jury trial is that it is the people, not the establishment, who make the decision, whereas it is, by definition, somebody on behalf of the state who makes the decision to prosecute, so the functions must be separated. Therefore, the wider interest needs to be represented. According to the Government's figures, we are talking about never more than 5 per cent. of the cases in the past five years ending up in the Crown court, and sometimes less. The Government put in the reputation clause, which was rightly rejected in the other place, principally because it created a two-tier system of justice. An obvious example is a that of a head teacher who would be thought to be at greater risk of damage to his or her reputation than an unemployed person entering adulthood. That is clearly discriminatory, and, on that basis, the Lords rightly threw it out. The Government were then completely stuck about what to do. The revealing correspondence between the Home Secretary and the former Lord Chief Justice, recently retired, shows that the Government do not have a position of principle. The Government seek to take away the option of jury trial for everyone who has that option but for no other principle than that there is some vague benefit, arguably, that the resulting justice will be more efficient and cost less. There is no principle there. The strongest argument in practice for not going into the prehistory is that, if antecedents were allowed—the circumstances of the accused—then, by definition, the person with a record would be less likely to be looked on favourably by the court. The court is more likely to think that it can try the case. However, there is a paradox, which has been well put by Justice, which says: The controversial provision for the court to consider reputation and livelihood, which discriminated in favour of those with apparently good character has been removed; but this is likely to lead to more cases being retained by magistrates. It should be also noted that the new criteria are likely to lead to a new, and diametrically opposite, discrimination. Sentences are likely to be higher in respect of people with previous criminal convictions, who may therefore be outside the court's sentencing powers. The courts discover that someone has previous convictions and so think that they have too little power to sentence them, so they are sent to the higher court for a trial by jury—

Douglas Hogg (Conservative, Sleaford and North Hykeham)

For sentence.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

For sentence—and those with previously good character will be more likely to be tried summarily. One old discrimination, namely, reputation, is being substituted for a new discrimination, and neither is a satisfactory resolution. That compares with the old and present alternative, which is that the defendant makes the choice, and has to be accountable only to himself for the choice that he makes.

Jeremy Corbyn (Labour, Islington North)

The hon. Gentleman will recall that, in the debate on the Football (Disorder) Bill last week, we had a similar discussion about the role of people's past records in deciding what sort of justice would be available to them—in that case, for a police officer. Does the amendment that the hon. Gentleman supports mean that any examination of people's previous records could not be taken into account in deciding whether they had a right to a jury trial?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Liberal Democrats support only amendment No. 19. We do not believe that there should be a revelation of antecedents, and so on. The circumstances of the accused should not come into consideration at the beginning, only the circumstances of the offence; otherwise those with previous convictions are bound to be discriminated against.

James Clappison (Conservative, Hertsmere)

Is it not the nature of the Government's proposal that we are being forced to choose between the lesser of two evils?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

That is exactly the issue. We have a perfectly good, workable system, with fewer and fewer people choosing to go to the Crown court, with lower costs and fewer delays, and we are being offered two definitely less advantageous and less libertarian alternatives. Both alternatives prejudice the defendant. As the hon. Gentleman rightly said, we should reject both. Let us stand firm; we should not believe that the Bill can be remedied by the first five amendments in the group.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I want to comment briefly on amendments Nos. 15 and 19. I adopt the same position as my hon. and learned Friend the Member for Harborough (Mr. Garnier). The Bill is a bad measure, but the question is whether we should accept amendment No. 15. We should not make a bargain because the Bill is bad. However, the measure would be much less bad if amendment No. 15 were incorporated in it. I accept that there is a perfectly legitimate difference of opinion; I understand that the hon. Member for Southwark, North and Bermondsey (Mr. Hughes) and the hon. and learned Member for Medway (Mr. Marshall-Andrews) take a different view, but I feel strongly that justice requires the courts, when determining venue, to have regard to character and antecedents. I therefore urge the Government, in the interests of making a bad Bill less bad, to accept amendment No. 15, or a similar proposal. My right hon. and learned Friend the Member for North-East Bedfordshire (Sir N. Lyell) spoke to amendment No. 19, and I strongly endorse his comments. There is a class of prosecutions which can reasonably be deemed oppressive—or, alternatively, in which the investigation or prosecution process prior to trial has been oppressive. The right of a jury to throw out a case that it believes should not have been brought, because it is oppressive or has been badly handled, is an important safeguard of citizens' liberty. We would not need amendment No. 19 if we were not embarking on the Bill. However, as we are embarking on it, we need a safeguard that is the same as, or similar to, that advocated by my right hon. and learned Friend the Member for North-East Bedfordshire. I therefore commend amendment No. 19 to the House. I fear that we will not divide on it, but I commend it to those on the Government Front Bench in the hope that Ministers may take the spirit of the amendment on board.

James Clappison (Conservative, Hertsmere)

I should have liked to speak for longer, but time moves on quickly, and Government Front-Bench Members need to deal with several matters. I agree with the views of my right hon. and learned Friend the Member for North-East Bedfordshire (Sir N. Lyell). The Government's proposal is wrong in principle, and they have found the worst way in which to implement it. The Bill is a bad measure.

Edward Leigh (Conservative, Gainsborough)

It is obvious from my remarks in Committee, and earlier this evening, that I have considerable sympathy with the Government's objective. I know that some of my hon. Friends, Liberal Democrat Members and the hon. and learned Member for Medway (Mr. Marshall-Andrews) rightly take a purist line about the Bill. I understand their view, but we must be aware of the general public's opinion, the cost to the criminal justice system and the widespread view that people who have criminal antecedents abuse that system. That may not be a popular view; hon. Members tend, rightly, to put civil liberties to the fore. Those who argue the case that I am putting do not always express the opinion of many Back Benchers, who take a purist view. The Government are right to take the action that they propose. None the less, the Government must listen carefully to the debate. The current Home Office team does that, and its members are generally concerned about the criminal justice system. I hope that Ministers will take away from the debate the clear view from all parties that, whether we are opposed in principle to the Bill or whether we simply seek to amend it, we believe that proposals such as those in amendments Nos. 6 and 15 would considerably improve it. That is a perfectly sustainable argument. 10.45 pm There is widespread concern that being charged with a small offence such as shoplifting could affect a person's livelihood. I am sure that the Minister accepts that and is trying to find a way forward. I support the amendments, but the hon. and learned Member for Medway eloquently put the alternative view that they would create two classes of justice—and that point was strongly supported by the hon. Member for Southwark, North and Bermondsey (Mr. Hughes). In a sense, they are right. Two classes of justice would be created, as a person without antecedents would have the absolute right to elect for trial by jury and receive gold-plated treatment, while those with antecedents would not have that right. However, we must accept that. In a world that is never ideal, surely it would be better to have justice for some people.

David Taylor (Labour/Co-operative, North West Leicestershire)

The hon. Gentleman talks about gold-plated justice. Can he make more explicit his apparent belief that the justice afforded in magistrates courts, whether by lay magistrates or stipendiaries, is substantially inferior to that afforded by the jury system? Is that what he is saying?

Edward Leigh (Conservative, Gainsborough)

The hon. Gentleman and I had that debate in Committee. He has a long and distinguished record of service as a magistrate and is rightly convinced, as are all of us who have appeared in magistrates courts, that magistrates are fully equipped to deal carefully with the evidence. They represent the local community, just as juries do, and I recognise where the hon. Gentleman is coming from. He is committed to the magistrates courts system. However, in the previous Parliament a Member, in a fit of absent-mindedness, walked out of the Army and Navy Stores carrying a couple of books. The case went to a summary trial and he was found guilty, but he insisted on trial by jury and appealed to the Crown court. Eventually, he was found not guilty. Would any Member of Parliament accused of such an offence, which would finish his career, prefer not to go to the Crown court? Let us be honest with ourselves. [Interruption.] The hon. Member for North-West Leicestershire (Mr. Taylor) points to himself and says that he would rather go in front of the beak—the London stipendiary magistrate. He would rather appear before my hon. Friend the Member for Woking (Mr. Malins), but, with respect, I would rather appear before a jury—not case-hardened individuals like my hon. Friend, but people with a fresh insight on the criminal system. That is why this issue is so important to so many people. To dismiss it out of hand by saying that the amendments must be thrown out, and that the Bill is rubbish because we cannot get it absolutely right, is not the right way to proceed. There is a middle way, which is to proceed, but only after adopting the amendments. They would protect the person of good character who came before the criminal justice system, perhaps for the first time, and allow him to insist on trial by jury. That is an essential compromise. The Government may be unable to accept the amendments tonight, but when they are confronted by the other place—an independent House where they do not have an overwhelming majority, whose members do not come in to vote for whatever is placed before them by the Whips—I hope that they will accept similar proposals.

Charles Clarke (Labour, Norwich South)

In the time available to me, I shall make two points. In answer to the hon. Member for Southwark, North and Bermondsey (Mr. Hughes)—yes, as a Member of Parliament and as an individual, I would be happy to be tried by magistrates. I have great confidence in magistrates. A lack of confidence in them has Iain beneath a great deal of the debate. It was put most clearly by the hon. Gentleman, who said in Committee: That leads to the question whether we trust magistrates more than judges. I shall not beat around the bush: I trust a judge and jury more than I trust the Bench.—[Official Report, Standing Committee D, 25 May 2000; c. 35.] He later said that he stood by what he had said. That is at the core of much of the opposition to the Bill. My answer to that is to improve the magistrates system if it needs improving, but to have confidence in it and to promote it. Secondly, in answer to the points made by my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews), I shall list the offences that are currently dealt with directly by the magistrates without defendants having a choice, although they relate to reputation and dishonesty: assault on a constable, keeping a brothel, cruelty to animals, cruelty or neglect of children, night poaching, stealing, unauthorised taking of a conveyance—