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Standing Committee B
Tuesday 14 January 2003
(Afternoon)
[Mr. James Cran in the Chair]
Clause 36
Trials on indictment without a jury
Question proposed [this day], That the clause stand part of the Bill.
2.30 pm
Question again proposed.
Vera Baird (Redcar): The general points against the clause have already been made, but I want to emphasise four of them. The right to elect trial by judge alone already exists, but it relates only to low-level crime. Of course, at that low level, it is not a certainty that one is electing trial by judge alone, because the case may be tried by lay fact finders, in which case the lay element would not be excluded.
The level of crime for which one can elect a magistrates court trial or, sometimes, trial by judge alone has varied over the years. Parliament has decided for what level of crime such an election is appropriate. Until now, Parliament has decided that, above a certain level of crime, the right mode of trial for the state is jury trial. Consequently, the existence of that procedure in relation to the lower level of crime is not in issue. The right to choose jury trial is not merely an advantage for the defendant, for which he should be entitled to opt: it is the right way to try serious crime, as the Government accept. They have said repeatedly that jury trial has served us well. Consequently, it is in the public good that, above that low level of crime, jury trials should be conducted in public, by the public, under the legal guidance of a judge. Given that broader interest in jury trials, they should not be prevented from occurring by the wish of a defendant.
I fear that the right to opt out will bring the system into disrepute. For example, accused paedophiles, alleged to have committed serious sexual offences, would expect to get a less unsympathetic hearing from a cool judge than from members of the public. It would be very difficult for people from an estate to accept that a person charged with abusing children in their vicinity had been able to opt for a form of trial that might favour them less because it would take less account of public awareness of the seriousness of such offences. People on an estate, such as Grangetown in my constituency, might ask why it was possible for the public to be completely excluded from considering the guilt or innocence of someone charged with such an offence, and at his behest.
White-collar criminals constitute another sector that is capable of bringing the criminal justice system into disrepute. People involved in middle-class crime who opt for non-jury trial will be seen to be opting for trial by their peer, a middle-class person who might be
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expected to be more sympathetic to peccadilloes along the way than a broader spread of persons from different classes.
In addition, there are already complaints that magistrates who come from nice middle-class areas overestimate the impact of fairly low-level violence and are too ready to convict for it because it seems so dreadful to them, whereas it may not seem so harsh to someone who lives in a different social setting. There are also complaints about the opposite point of view. It is said that an experienced magistrate, who has seen an awful lot of horrible things, may undervalue some minor assault, although it is an important incident and may be part of a longer course of conduct on the estate where it occurred. Those problems all result from the fact that one individual may be seen from the outside as having particular prejudices or having taken particular positions in previous trials, whereas the public interest requires a diversity of fact finders and decision makers. It is not right that a defendant should be able to opt out of that fairer, wider, more socially desirable scrutiny.
Those are the problems that I perceive in the clause. However, the Bar Council pinpointed a worry, which was also flagged up by the hon. Member for Woking (Mr. Malins) before lunch, that there is a direct analogy with the Government's earlier attempts to remove a defendant's right to choose jury trial and to lodge it with the judiciary. There is a parallel here: at present, we are introducing a right to choose non-jury trial or jury trial. How soon, however, will it seem far more logical, just as it seemed to the same Government only a year ago, that that decision should be vested in the judiciary and not in the defendant? How soon will it be before jury trial is available only at the discretion of a judge?
There are problems with the clause as it stands, and there is considerable fear that it is the thin end of the wedge. My hon. Friend the Minister is aware of that argument, but it is extraordinarily difficult for him to give any reassurances on it. Although the next step or the next step but one may not be in the Government's mind now, it is none the less available to a Government who wish to introduce it. That is devoutly to be avoided, and the best way to avoid it is never to start in the first place.
There is a real risk of injustice from this proposal to rape complainants in particular. I shall make my next comments as brief as possible, as the Minister and others present listened to similar comments in the Chamber last night. It is well known that the conviction rates for rape are very low: 9 per cent. of complaints result in a conviction. That is largely because women are not happy to come to court because they do not like how they are treated. The judiciary are not the only culprits. They have not been supported very well by the police, although the police are getting better. They have not been supported very well by the Crown Prosecution Service, although it is getting better. The judiciary do not seem to be changing quite so speedily.
We often read headlines of appallingly sexist statements from the judges who are hearing rape trials. I do not know whether the Committee wants to
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hear any quotations, or whether it will take them as read. [Hon. Members: ''Go ahead.''] In 2000, when one hoped that such attitudes would have passed, a judge called Goldstein, named and shamed in the Old Bailey, said that if previous sexual history was not allowed in rape trials, no jury would ever know whether a complainant was a tart or a nun. He said that that would be extremely unfair on a jury as they would not know what to make of her. That was in 2000, remember.
That judge sent the case to the Court of Appeal because he found no way of including previous sexual history in the trial under current law, although he dearly wanted to do so. Things did not get significantly better when he got to the Court of Appeal. There, Lord Justice Rose said that it seemed common sense to the Court of Appeal that if a woman had had sex with a man before—this was about previous sexual history with the defendant—she would have been more likely to have consented to sex with the same man again. Any woman judge sitting beside Lord Justice Rose, had there been any, or even any man who had had gender awareness training, would have appreciated that it might in fact be less likely that a woman would want to have sex with the same man.
I say that without fear of defiance, even though most of those present are men. There could be any kind of implications, could there not? A woman who has had sex with a man might start to go out with somebody different, and would then be less likely to want to have sex with the first man. She may decide that he is too serious, and that she will not do it out of prudence. All sorts of factors may influence her decision. However, the Court of Appeal can see only that it pointed one way: in favour of that woman's being, as it were, promiscuous. With such horrors being said now, one can only say on behalf of rape claimants, even though the conviction rate is pathetically low, thank goodness for juries, who to some extent come between them and such attitudes.
The problem now is that the judiciary set the framework within which the jury deliberate. The judiciary is 90 per cent. men, and those to whom I referred are not simply two old fogeys who ought to be retired: Rose is 60-ish, and Goldstein is not even approaching 60. Where will rape claimants be if their cases are to be heard by such men, at the option of the defendant? They will have no say whatever in the process. They will see a man opting for trial by a man alone, in an intensely gendered area. I am not alone in thinking that. In announcing the White Paper, ''Justice for All'', the Home Secretary said that he was very aware that issues to do with rape and domestic violence were highly gendered, and that Ministers, most of whom are men, needed to listen carefully to women in order to understand the essence of the problem. I pray the Home Secretary in aid, and say that the matters are delicate and gendered, and should not be left to men alone to decide. In particular, they must not be left to men who have previous convictions for getting matters wholly wrong, as the judiciary do.
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I am not alone in identifying the problem: the Government have already legislated on it. The Sexual Offences Acts used to allow a wide discretion to judges on whether previous sexual history could be considered in rape trials, and they exercised that very widely indeed. In 1999, the Government narrowed that discretion and required that a series of steps be taken, because they appreciated the very difficultly that I point to.
What goes for rape goes, I fear, for domestic violence also. Again, the issue is intensely gendered and is one that many males think should be mediated between the parties to a marriage, and not the subject of intrusion by the public authorities at all. The somewhat old-fashioned judiciary—the men of the judiciary—have exemplified that view. There will be not only poor outcomes but a lack of confidence among women to come forward—the very opposite of what the Government have pursued.
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