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Criminal Justice Bill Hl

Volume 490: debated on Thursday 19 November 1987

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3.21 p.m.

My Lords, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be further considered on Report.—( The Earl of Caithness.)

On Question, Motion agreed to.

moved Amendment No. 40:

After Clause 36, insert the following new clauses:

("Petty theft to be a summary offence.

. Theft, where the value of the property alleged to have been stolen does not exceed £75, shall be a summary offence and a person convicted of such an offence shall be liable to a fine not exceeding level 4 on the standard scale.")

The noble Lord said: My Lords, in moving Amendment No. 40 I start with two premises. The first is that justice delayed is justice denied. The second is that our magistrates can be trusted to deal justly with the accused who come before them. According to the Judicial Statistics for 1986, page 43, table 5, the average time it takes for a case to be called in the Crown Court is more than 14 weeks in England and Wales as a whole and almost 25 weeks in London. That time of anxious suspense is no shorter for the innocent than it is for the guilty. During that time the anxieties of the accused sharpen while the witnesses' memories fade. It is therefore itself a kind of punishment. It is meted out to the innocent as well as to the guilty and it is a means of reducing the certainty of justice when it is delivered. To reduce it, all other things being equal, must be a good thing.

It is government policy to speed up the process of the courts. The noble and learned Lord the Lord Chancellor, who I quake somewhat to see on the Woolsack, has quite recently stated his commitment to that cause. There are various means available to him but neither appointing more judges nor building more courthouses will achieve that in anything like an acceptable length of time. The process within a law court may be very slow but the process of building one makes it look like greased lightning. If we are to bring significant relief to the system within the next few years we need something else. What I propose will bring that something else from the moment of implementation.

The offence of the petty theft of items of low value at present provides the Crown Court with 10 per cent. of its case load and consumes only a little less of its time. My amendment would simply convert that offence from an indictable to a summary status. In other words, it would transfer the hearing of the case for such offences from the Crown Court to the magistrates' courts. Your Lordships may think that to remove the threat of imprisonment—which is what the amendment does—is to take too light a view of the offence, but let me remind your Lordships of what that offence consists. It is the taking of property without the use of any violence to the person and without the causing of any physical damage to a house or vehicle in the process. This is a non-violent crime and I am increasingly persuaded that we are too free with our sentences of imprisonment for crimes of this nature.

The threat of imprisonment may be a deterrent in many cases but I learnt a sad fact when I had charge of the prison system, first under the noble Viscount the Leader of the House and then under the right honourable Member for Richmond. I am referring to the fact that nothing but nothing makes a person more likely to go to prison than the fact that he has been sent to prison before. Imprisonment is certainly a punishment. It is often a deterrent. But in no sense is it a reliable cure for crime.

The maximum fine I propose is at level 4 on the scale, which is now £1,000. In Committee my noble friend Lord Renton wondered whether that was enough. Both my noble friends Lord Boyd-Carpenter and Lord Renton raised in Committee the questions of aggregation of the values of the objects stolen if several instances were brought simultaneously to trial and of the treatment of second and subsequent offences. I had hoped that in taking my amendment away for consideration Her Majesty's Government would have responded to my noble friend Lord Boyd-Carpenter's suggestion that they should propose a line on this at the Report stage. They have not tabled an amendment of their own and I hope they will at least vouchsafe us the line.

What are the objections to what I propose? They will be very ably deployed, no doubt with devasting effect, very shortly after I have sat down. A principal difference between the Crown Court and the magistrates' court is that in the magistrates' court there is no jury. There are just three magistrates, three Justices of the Peace, or a single stipendiary magistrate. It is argued—and some noble Lords may seek to argue today—that petty theft is an imprisonable offence and that the conviction for an imprisonable offence is such that it ought not to be awarded without the safeguard of a jury. That is wide of the mark because I have proposed to remove the sentence of imprisonment for the crime.

It is worth noting that only recently your Lordships passed in Committee, without a whisper of doubt about its appropriateness, Clause 36 of the Bill, which comes immediately before the new clause that I propose to insert. That provided without a murmur of dissent for magistrates to hand out sentences of six months in cases of common assault and battery. As for criminal damage, an earlier clause now allows them to deal with that on their own up to a maximum value of £2,000. I say that in parenthesis but it tackles the question of stigma which I know will be deployed this afternoon. The stigma of an imprisonable offence does not arise. The question of stigma for dishonesty arises in plenty of cases with which the magistrates deal already.

That might itself give a tiny help to the prison system by keeping a handful of prisoners out of it but the amendment would have an effect on our prisons far greater than that. It would reduce significantly the number of people held in them. One of the most acute reasons for overcrowding in our prisons arises from the large and growing number of prisoners held on remand awaiting trail for offences other than those which we are now discussing. On average there were about 6,000 of them in 1979. By September 1987 there were more than 11,000. They find themselves in some of the worst conditions in the whole prison system; sharing with at least one other a cell designed in the days of Queen Victoria to hold one person. Moreover, they may find themselves in such conditions for about 22 hours a day if the system is not working properly, and during the night time with the chamber pots of all the occupants as well, because there is no internal sanitation.

That is not a pleasant experience and it is not in any sense a force for rehabilitation. It is all that can be provided in most local prisons. I recognise what has been done, what is being done and what it is planned to do in the way of providing new accommodation and improving the old. Nonetheless the remand wings of our prisons are among the most cramped and overcrowded in the whole system. A major factor in the build up of this enormous pressure is the time it takes to bring a remand prisoner to trial in the Crown Court.

I am not sure whether I have even yet put this problem into proper perspective. Perhaps it will help

your Lordships if I say that in the south-east region of the prison system no fewer than 22 per cent. of all male prisoners and over 33 per cent. of all female prisoners have not been sentenced to imprisonment or anything else. The vast majority of them are still awaiting trial, and still waiting for the Crown Court to have the time to hear their case. Only Jarndyce v. Jarndyce could look at that with any equanimity.

Why does the Crown Court take so long? It is because it is clogged up with work, and some of that work, 10 per cent. of it, ought not to be before it in any case. That 10 per cent., estimated by the Home Office to consume more than 8 per cent. of its time, could and should be removed from it at once; and that it what this amendment would do.

These are powerful and persuasive arguments. Faced with powerful and persuasive arguments, the Government usually fall back, when all else fails, on the question of money. Proposals which they find admirable in other respects are regretfully rejected because of their cost. I have done it often enough to know. In this case, however, the boot is on the other foot. Costs, as in any change, there would certainly be. Against any savings in the Crown Court there must be set a significant increase in the work done by the magistrates' courts. That would doubtless require a transfer of resources to meet it: 80 per cent. from central government and 20 per cent. from local authorities. But even that would not be a net increase. Roughly 10 per cent. of all cases now sent to the Crown Courts from the magistrates' courts require full committal proceedings. Committal proceedings can be very protracted. We have painful memories (have we not?) of the Jeremy Thorpe case to remind us of this.

The whole of that load of committal proceedings would be lifted from the magistrates' courts by this amendment. Nonetheless, there would be an addition and it would have to be met, as I say, 80 per cent. from central government grant, but that would happily be outweighed by the savings in the prison Vote. Happily again, both Votes belong to the same department.

A remand prisoner has more privileges, costs more to maintain, and lives in greater squalor that any other. The net average cost of keeping him on remand is from £12,000 to £15,000 a year. This is one of those rare occasions where we in Parliament can present to a hard-pressed department almost ready made a chance of making savings in its own programme without adding to the costs of another.

Whatever my noble friend is instructed to say, there must be jubilation, I should have thought, at that prospect in some parts of Queen Anne's Gate, not far from the Home Secretary's office, and even a hint of a smile on the dour face of the Treasury, for once. There must be a sharp drop also (must there not?)—I would ask the Minister whether he could quantify this—in the cost of the legal aid programme since the cases that we have taken out of the Crown Court, if we are wise, will be so much cheaper to pursue.

The noble and learned Lord the Lord Chief Justice spoke strongly for this measure in Committee. He has written since to me to say that he regrets he cannot be here today but he remains in favour of what I have proposed. The noble and learned Lord, Lord Roskill, said in Committee that he wished to support with all the force he could the amendment that I put then. He also has written in support and saying that he has to be elsewhere. I think I have deployed sufficient arguments to warrant a reply. I shall reserve the rest of my powder to reply to the reply. I beg to move.

My Lords, there is a famous English institution which has as a motto, as I recollect, "I mean well". I would wish that that motto be applied to the noble Lord, Lord Elton, this afternoon. There is not the slightest doubt that the purpose that he has is a worthy one; namely, the speeding up of justice, the saving of money to the Treasury, and also economising on the legal aid fund. But before one speeds up justice one has to be sure that justice itself is going to be granted. Looking at matters first of all objectively and then from the point of view of the defendant, may I quickly summarise the reasons why we on these Benches would oppose this amendment.

First of all, your Lordships will appreciate that the penalty for theft in regard to values under £75 would be limited to a fine. Those over that amount would be imprisonable. I ask your Lordships to consider for a moment, if you were sitting as the sentencing judge or magistrate, which would your Lordships regard as the grimmer offence: someone who stole a radio from a Rolls-Royce, the radio being worth more than £75, or the person who stole the last £5 of a widow? I believe I know the answer. In those circumstances I ask your Lordships to consider before you would pass an amendment which would make the stealing from the widow a matter for a fine and the stealing of a radio from a Rolls-Royce possibly a matter for imprisonment.

I turn to the next point. It is not an original one so far as I am concerned but one which I remember was raised in Committee. The noble Lord who raised it will forgive me if I do not remember his name because I would wish obviously to give him credit for it. It was that as you have this amendment before you your Lordships will observe that if somebody keeps on stealing something below £75 and makes sure that his valuation is precise, and possibly can afford to have an official valuer with him on each occasion, it would mean that he could perpetrate 20 thefts of this kind below £75 knowing that when he appears before the friendly and now familiar face of the local magistrate the magistrate will only be able to administer a fine.

I turn lastly to the justice from the point of view of the defendant. The noble Lord, Lord Elton, was quite right to forecast that this point would be made. It is an obvious one but nevertheless a true one. The stigma of theft is one of the gravest that can be put against anybody's character. Not to have the opportunity of being tried by his peers, as for all serious crimes, would be quite wrong whatever the value of the thing alleged to have been stolen, even if it were a bottle of milk.

I wonder whether your Lordships will allow me in conclusion—and I promise in conclusion—to tell you of a case that I shall always remember. I was a young advocate at the time and I was appearing in Bow Street magistrates' court. The case before mine was a case of a tramp who was wandering down Charing Cross Road and was alleged to have stolen somebody's wallet. The magistrate heard the case very quickly. He was a just magistrate. The fact that he heard it quickly did not mean that he was not giving due attention to the case. He heard the story of somebody wandering down Charing Cross Road who was accosted by the tramp, who asked him the time. He gave him the time and tramp hurried away. He thought he noticed that his pocket was touched. He immediately felt in his pocket and found a wallet missing.

The tramp was hurrying away and the gentleman concerned called out, "Stop thief!" After what appeared to be a lapse of time when something could have been thrown away, the tramp was stopped and he was duly arrested by a police officer who came from the nearby vicinity. He appeared in the court and gave evidence and told the magistrate, in my hearing, that he really wanted to know the time and that he had hurried away because he was due to meet a pal somewhere near Trafalgar Square. The magistrate said, "There is too much of this going on. I have heard that story before. Guilty. I want this man remanded for a report".

I then conducted my case, and I was asked by the clerk of the court if I minded being interrupted. I said, "Certainly not". The man, having travelled down Charing Cross Road, reappeared in a flustered condition. He told the learned magistrate that he had been home, had looked at another of his suits and found the wallet inside. He wanted to apologise to the court and to everybody concerned. The magistrate, being the man that he was, said, "Call this man up at once. Of course he will be acquitted. The day's hearing has not yet finished and I can deal with the matter in that way. I must not say again that I have heard this type of case before".

Juries have not heard that type of case before and that is why our system of trial by jury is so valuable in our criminal law.

My Lords, I should like to support my noble friend Lord Elton most warmly. I am also pleased to hear that the noble and learned Lord the Lord Chief Justice and the noble and learned Lord, Lord Roskill, also support the proposal, although they are unable to be present.

I speak in support of the proposal because of the experience of judges who have had to deal with trial by magistrates and trial by jury. Our magistrates are of first-rate quality. They are the best citizens in the land, intelligent and well able to deal with such cases. They are well aware of the burden of proof: that a man is not to be found guilty unless the case is proved against him beyond reasonable doubt. Trial by magistrates is a first-rate tribunal. I should not like to say the same about trial by jury, although I have the greatest regard for it in all serious and important cases.

Let us think about the matter. As my noble friend said, justice delayed is justice denied. That applies to both sides; not only to the accused but also to the prosecution. If witnesses are to be called, let them be called as soon as possible, while their memories are clear, and not after a delay of 14 months. Delay is advantageous to the defendant; it does not help the prosecution.

In my experience, ordinary, decent folk charged with petty theft—for that is what it is—would say, "Let us get it over with now and decide the matter before the magistrates so that I shall know the worst now". I fear that the right to trial by jury is abused—and I shall say it plainly—by some lawyers representing the accused. They will say that they want to elect for trial by jury because they know what will happen. The case will not be tried for six or nine months, or whatever it may be, until the Crown Court can take it. Mark you, how good for the lawyers! Legal aid will be available, the lawyer will be able to delay the case and, although I think it is wrong, he will hope to have a better chance of getting his client off. In other words, I am afraid that a request for trial by jury is sometimes abused by lawyers defending the accused. There are all the reasons which have been given by my noble friend.

Are the Crown Courts to be filled with what many judges consider to be trivial cases? I agree that they are small cases but important to the individual. But do not let Crown Courts be filled up with such cases. Let the magistrates, a first-rate tribunal, deal with them. I am sure that most defendants would agree with that view. I support the amendment.

3.45 p.m.

My Lords, my experience is much less than that of the noble and learned Lord, Lord Denning. However, perhaps it has the slight compensating factor of being rather more recent. I should like to dissociate myself entirely from the view of trial by jury which has just been put forward. I believe that it flies in the teeth of the evidence. I believe the evidence is perfectly clear; that of every 100 cases which are tried by a jury, selected at random but presided over by an experienced judge who has not been selected at random, 99 cases would have exactly the same result if they had been tried by a stipendiary magistrate or by lay justices.

Of course there is the occasional marginal case where views may vary, just as there would be if the same case were tried by two different courts of lay justices. However, if one looks at the acquittal and conviction rates and at the inquiries that have been made of the views of trial judges of the verdicts in cases where they have presided, one inevitably comes to the conclusion that a jury is a thoroughly dependable part of our criminal system. I am deeply sorry that such a distinguished noble and learned Lord should venture to cast doubts upon the system.

Equally, the noble and learned Lord is not right when he says that advocates elect trial by jury because, to use his words, there is a better chance of getting an accused off. There is not. Advocates elect trial by jury for a simple reason. In a jury trial one has the opportunity to obtain all the evidence of the prosecution in advance, to study it and prepare and plan the answer on behalf of the defence. It is for that reason that lawyers elect for trial by jury and for no other.

In those circumstances, I suggest that that argument—which might be at the back of the minds of some members of the Committee but which is at the front of the mind of the noble and learned Lord—is not a reason for supporting the amendment. Nor was it a reason put forward, if I may say so, in a moderate, clear and well-argued speech by the noble Lord, Lord Elton. I believe that the issues are those of expediency and eventually of principle.

On expediency, it is said that trials might come on more quickly if they are dealt with by magistrates. In the case of contested charges of dishonesty I am not sure that that is right. Today the vast majority of committal proceedings are purely formal. The case is dealt with instantly before the magistrates' court and does not occupy 30 seconds of the court's time. The case will go to the Crown Court in perhaps four, six, eight or 10 weeks—whatever the normal waiting time for a case. I am sure that the noble Lord, Lord Elton, will say that that is too long, and I agree. Nevertheless, the case will be heard in that period of time.

If it is a contested case of dishonesty that is liable to last for two or three days, the same case will take at least the same period of time before being heard in a magistrates' court because of the pressure of work upon them. That applies particularly to lay justices in rural areas, who inevitably find themselves sitting the odd half day or two a week and who find it difficult to assemble together for two or three consecutive days in order to try a case of that nature.

In those circumstances, it is not right to say that cases will necessarily be tried more speedily if we remove them from the Crown Courts. The other argument is that the pressure on the Crown Courts is so great—and there is so little pressure on the magistrates' courts—that it is a way of doing a balancing act. Noble Lords who serve with such distinction as lay justices will know perfectly well that that argument is inaccurate. Lay justices are under the same pressure of time as are the Crown Courts.

One is then left with the issue of principle raised by the noble Lord, Lord Mishcon. Is it right to say that because some offences of dishonesty happen to involve less than £75 they are somehow less serious than other offences which involve a larger sum? It is clear that the alleged theft of £1 may have far more serious consequences for some people than the alleged theft of £100,000 has for others.

The idea that one can fix an artificial limit of £75 is almost indefensible. Let us take an absurd example and suppose the theft concerned a piece of antique furniture. One would have the Gilbertian situation that before the case began the Crown would argue that the so-called Chippendale was worth only £74; but the defendant would argue to the contrary, saying that he would call expert evidence to prove that it was a genuine Chippendale, worth thousands of pounds and that therefore he was entitled to trial by jury. One cannot differentiate between offences of dishonesty on the basis of the sum involved.

I should like to make one final observation which I have made before and which I make no apology for repeating. In supporting the right of a person who is charged with an offence of dishonesty, a conviction for which may affect his whole life, his standing in his family and the community, to have trial by jury, I am in no way criticising the competence or ability of lay justices. Of course it is not a criticism. But if there is a trial by jury and a verdict of guilty or not guilty is given by 12 people who are chosen at random from the community, that verdict is one that the whole community and the defendant himself accept as final. In those circumstances I suggest that the balance of argument is overwhelmingly against this amendment.

My Lords, I wish that I had been able to speak to this amendment at Committee stage. Unfortunately at that time I was on the steps of the Throne and could not speak from there.

I have very great respect for the noble Lord, Lord Elton, and much sympathy with his intention in moving this amendment, but I cannot support it. I could not support it even if the maximum sum involved were only 75p. The noble Lord, Lord Mishcon, emphasised the stigma that is cast on the character of an individual for his lifetime by a conviction for theft however paltry the amount involved. It has not at all the same effect as a conviction for a parking offence or speeding on the motorway.

I wonder how many noble Lords, and especially noble and learned Lords, have any idea of the ease with which one can inadvertently shoplift. I know it is easy because I have done it on two or three occasions. However, I have been lucky enough to get out of the shop without being arrested and, having realised what I had done, quickly returned to pay for the goods that I had with me. On one occasion early in the morning I went into Selfridges to buy an umbrella. Having chosen an umbrella I looked around for a till or an assistant in order to pay but the entire department was empty. I walked through the shop looking for someone to whom I could offer the money but on the way my eye was caught by a rack of belts. Since I wanted a belt, I paused, hung the umbrella over my arm and looked through them. Not finding a belt that I liked, I walked out of the shop, but by then I had completely forgotten the umbrella that was still over my arm. As I was walking down the street a few minutes later it started to rain and I was about to open the umbrella when I remembered that I had not paid for it. I managed to return to Selfridges and pay for it, without being caught.

Such things are all too easy. Just in case any of your Lordships think that such things happen only to middle-aged women, I must tell them that it is not true. I told the story only a couple of days ago to a youngish Peer, who said, "Yes, exactly the same thing happened to me in the local supermarket not long ago". It is only too easy to take goods if one is preoccupied or suddenly distracted, for example, by meeting a friend.

I think that in those circumstances it is quite unacceptable to deny the victim a trial by his peers, however long it may take, and the chance of clearing his name and character.

My Lords, of course I realise that there are arguments on both sides of this matter. I must say to the noble Lady who has just spoken that on the facts of the case that she has anecdotally recounted, in my experience certainly she would have been acquitted either by a jury or by a magistrate. I do not take much notice of such stories. However, I should like to bring forward one or two factors of which, at any rate at this stage of the Bill, I do not think the House has been informed—although perhaps the House was informed of them in Committee but I was not present on that occasion, for which I must apologise.

The argument has quite a long history behind it. When first I was Lord Chancellor I learned of a case that took up a day and a half of the Crown Court's time. It concerned a man who was charged with stealing not a bottle of milk, as the noble Lord, Lord Mishcon, said, but an empty milk bottle I wonder whether that is really a rational way to conduct criminal justice.

The James Committee, formed under the chairmanship of the late Lord Justice James, came to the conclusion that smaller thefts, at any rate in principle, should be triable by magistrates and that it should not rest entirely with the defendant to say whether or not he should be tried by magistrates. I remind the House that in an appeal against conviction or indeed against sentence from the magistrates there is a complete rehearing by the Crown Court, which consists of again considering the evidence on both sides. My view is that for a case of such a lack of importance that is an adequate safeguard for the burden and standard of proof which is quite rightly demanded in criminal cases.

When the James Committee report ultimately came to be implemented by the then Labour Government, I sat approximately where the noble and learned Lord, Lord Silkin, is now sitting, and the noble and learned Lord, Lord Elwyn-Jones, and the noble Lord, Lord Harris of Greenwich, produced an amendment not very different from that of my noble friend Lord Elton today. It was then my painful duty to have to tell the noble and learned Lord, Lord Elwyn-Jones—and I hope that he will not complain that I have broken a confidence—that I had been informed by the Conservative Whips that, although I supported the amendment of the then Labour Government, it would not go through the House. So, in order not to waste the time of the House the amendment was withdrawn. However, sooner or later we must grasp the nettle, whether or not it takes the exact form that my noble friend Lord Elton has proposed.

I attach a very great deal less importance to the stigma argument than did the noble Lord, Lord Mishcon. Let us take the case of the late Professor Joad, who effectively stole from the railway company (or whatever it was at that time) the money represented by the ticket for a journey between Reading and Paddington—I think it was Paddington. He could only be tried by magistrates. He told a totally untruthful story and he was convicted. However, if he had taken a book of the same value from Woolworth's, with the same dishonest intent, then morally and in the sight of God he would have been neither more nor less guilty than he was when he stole the money from the railway company. The idea is absurd that a stigma attaches to the act of stealing because it is technically stealing in English law but not to stealing from railway companies. The maximum penalty that Professor Joad could have been given and was given by the magistrates was, I think, a 40-shilling fine. But the stigma attached to him was absolutely identical. In fact, it ruined him, because the BBC, who at that time was his principal employer, would not employ him again for ever and a day.

If I were asked myself—and I do not put myself forward as one who would dare cast the first stone at anybody else—would it do me much more harm in the eyes of the public if I were to commit a deliberately cruel act on a dog or steal a book from a railway bookstall, I think it would do me far more harm to be convicted of a cruel act to a dog or neglecting a child. These things are triable summarily only, but I would be entitled to trial by jury if I took the book. I regard this as wholly irrational and we do not want therefore to approach this matter in quite the emotional way that some people are inclined to do.

I remember the very tragic case of Lady Barnett, who was quite a habitual shoplifter, as subsequently emerged. She was quite rightly, in the state of the then existing law—because in the state of the then existing law you were not allowed to know the case for the prosecution, except for the bare allegation—advised by her advisers to go for trial by jury, which of course she had the right to do. I believe that she would have had exactly the same result had she been tried by magistrates, but with this rather considerable difference. The publicity which the delay and the double hearing of committal and trial by jury attracted so affected her that she took her own life. I am quite sure that she would be alive today if the amendment proposed by my noble friend had been the law.

I think that there are very strong arguments on both sides. I took the point—and if he will allow me to say so it was very well made—of the noble Lord, Lord Mishcon. The habitual offender who habitually steals on a small scale is far worse than the person who steals once and rather a lot. My own view, for what it is worth, is that it should rest with the magistrates' court and not simply with the defendant to say whether a case ought to be tried by jury or whether it could be dealt with adequately by magistrates. There are of course cases of very small thefts which raise rather interesting and complicated points of law; and this is a point which has not, I think, hitherto been raised in this debate. I think that they should go to the Crown Court, because a good question of law on a case of theft is rather worth discussing between lawyers, even with legal aid, though it is rather expensive.

But simply as a matter of principle, I must say that having viewed the point more than once in the past 17 years I would side with my noble friend Lord Elton. However, I am not absolutely sure that the way to do it is to reduce the penalty and limit it to a relatively modest fine and not leave it to the discretion of the court to consider whether the seriousness of the facts demands the time, expense, anxiety and delay involved in a jury trial, and whether the case cannot best be dealt with in the magistrates' court, subject of course to the right of appeal by way of rehearing if the defendant feels that he is aggrieved by conviction.

4 p.m.

My Lords, I should like to follow the noble and learned Lord and support the amendment, in so far as it should be right to have summary trial rather than the expensive and long drawn-out procedure of going to a higher court. The only thing that concerns me, as with the noble and learned Lord, is whether you should have a fixed penalty.

As your Lordships know, I work in the field of crime prevention and I can assure the noble Lady that the one-off person who actually makes a mistake is not the person we are dealing with in the courts. It is a group of persons who set out deliberately to steal vast sums of money, which does not cost the shops the money; it costs us, the honest customers. The price is put up because of the losses. So the idea that the shop has to bear the loss is quite ridiculous.

I think that a real villain will work out whether it is worth having a go to steal something worth £75 or over, if he is going to be caught and then fined only a certain amount. It is rather like putting your money on the pools. You make a balanced judgment. So I think that there is great merit in the new clause, but we have to be careful of the fixed penalty.

I feel very often that barristers, counsel, suggest to their client "If you go before a jury you will get off—. I think that is one of the reasons for what happens. Of course they will all deny it, and naturally any Members of your Lordships' House who have to declare an interest will deny it. But to me there is little doubt that there is a good case for saving the time of the higher court in the case of offences which can be dealt with easily and sharply. The only qualification I have is about the question of the penalty.

My Lords, before the noble Baroness sits down, would she agree that the advice a barrister gives to his client on the question of going to trial may depend very much on who is sitting on the Bench?

My Lords, I think that rather makes it worse. I remember that when I was sitting as a magistrate the street traders had got it weighed up. When they came into court in Great Marlborough Street and saw three women—and we were sensible judges—they would pass the bush telegraph out to the others saying "We have got three women in there today. Who is coming up next week?" The answer would be "Oh, so-and-so", to which the reply was "Oh, he is very easy meat". Your Lordships must know that people have their own assessments. Thieves and villains are not idiots. They are only idiots when they are caught.

My Lords, my noble friend Lord Elton, when he moved his amendment quite a time ago, referred to a point which I had made when we discussed a similar if not identical amendment on the Committee stage. That relates to the fact that under his amendment as it now stands, and as the amendment stood at the Committee stage, in no circumstances can a sentence of imprisonment be imposed—if this becomes law—in respect of any theft of less than £75.

Your Lordships have discussed the matter rather on the basis of one single offence, and you may well think that it is not necessary to consider imprisonment in respect of one such offence. But what is to happen in one of the two following cases, one of which I mentioned on the Committee stage? Suppose that a pickpocket—that is the type of person who commits this kind of offence—robs in the course of a lucrative evening eight or 10 people of money, watches or anything else worth about £60 each. As I understand the amendment, those would be separate charges and in respect of none of them could the person concerned be sent to prison, because he would not have committed any one offence in respect of theft worth more than £75.

The other example is the case of the persistent offender when it is the second, third, fifth, fifteenth, twentieth or thirtieth offence of this kind with which he is charged. There are petty thieves, particularly of the pickpocket type, who, it would seem to me at any rate, should in many cases be sent to prison for a substantial term. They will not be discouraged by a fine. If they are making quite a good living out of minor thefts, even if they are fined quite substantially, they will regard the fine perhaps as nothing more than the tax paid on their earnings. At the present rates of taxation on high earnings, the fine would probably amount to less than the income tax on somebody's high salary.

This amendment is surely incomplete as it stands. I understood my noble friend to admit that when he said that he had hoped that Her Majesty's Government would put down a further amendment to deal with these points. He rightly drew attention to the fact that Her Majesty's Government have not done so. That presents your Lordships with a simple question. Are we prepared to say that, however many thefts are committed either at the same time or in succession in respect of items worth less than £75, the person concerned cannot be sent to prison? If your Lordships do so decide we shall see a substantial increase in the very large contemporary volume of petty thefts. For that reason if the matter stands as it now stands I should feel bound to vote against the amendment of my noble friend.

My Lords, most of us would agree with what the noble Lord, Lord Boyd-Carpenter, said, but it is not on the point of this amendment. The amendment concerns how somebody should be tried. If the effect of that trial means that certain sentences which are passed would be inadequate, it is for the Government to put that right.

My Lords, if the noble Lord will look at the amendment he will see that it prescribes that the only penalty for conviction for such an offence will be a fine.

My Lords, if that is so I have not entirely followed the amendment. I am sure that the noble Lord would correct it. On the principle of the thing, I find myself on the noble Lord's side. I was very much involved in the tragic case of Lady Barnett. I was a close neighbour of hers and I knew her very well. She was a beautiful woman, and most intelligent and charming. She did a great deal of public service. She had a charming husband, but a defective son, to whom most of her life was devoted.

When this awful thing was hanging over her one of the people who was loyal to her throughout. and whom I admired enormously for it, was the first wife of the noble Lord, Lord Elton. She was a very loyal friend to Lady Barnett. I feel equally with the noble Lord, Lord Boyd-Carpenter, that if there had not been the hanging about that is involved in a jury trial. Lady Barnett might have got over her difficulty.

On the question of the advantage of a jury trial, I agree that it very rarely affects the result. The result is normally what the judge wants, directs and leaves. But a jury trial has, if I may say so, the effect of enormously improving the behaviour of a judge. Judges without jury are often quite intolerable. They have nobody to play to. It can be a penance to have to conduct a case in front of a judge in those circumstances. If there is a jury, they play to a jury and they are apt to behave themselves.

I put it in that way. But as regards these very small cases the whole emotional build-up to the trial is a weight which I do not think should be put on people who are charged with trivial offences. Of course the pickpocket and the perpetual offender should he liable to a proper penalty but that can be adjusted.

4.15 p.m.

My Lords, a few minutes ago the noble and learned Lord, Lord Hailsham of Saint Marylebone, referred to the debate that we had in this House 10 years ago on exactly this question. I then, as he rightly said. defended a Bill which contained a proposition of this kind. It was not a question of an amendment being moved but of its being a proposal of the then government. Like the noble and learned Lord, Lord Hailsham, I apologise to the noble and learned Lord who is not able to be with us today, but it is an open secret that the Lord Chancellor's Department at that time was far more enthusiastic about the proposition than was the Home Office.

When this matter came to this House it did so in the context not only of severe criticism of the then government because of the proposal—the figure was then £20 rather than £75—but it met with a storm of criticism in this House. That criticism was led by the late Lord Morris of Borth-y-Gest and the noble Viscount, Lord Dilhorne. I think it is right, in view of the fact that two noble and learned Lords have spoken in favour of this amendment, to remind the House, particularly those Members who were present, what Lord Morris of Borth-y-Gest said, because it comes to the central issue of principle which we are discussing this afternoon.

I quote from Col. 672 of the Official Report of 27th January 1977. The noble and learned Lord was moving an amendment at that time to exclude the particular provision from the Bill. He said:
"Take the case of a man charged with stealing a £5 note. Supposing he says, 'I am entirely innocent, and I want this matter investigated in the way in which it has always been possible for someone placed as I am to have it investigated'. He may say, 'I can well understand that there were circumstances which caused some people to take a mistaken view. I can well understand how it comes about that I was charged, but I am absolutely innocent, and I want to run no risk whatsoever. I want to have this case fully investigated. I want to have the case for the prosecution developed so that I know fully what it is. If I go for trial I will have a professional judge, and there will he 12 of my countrymen who will be deciding whether I am guilty or not. I am convinced that they will, without doubt, say that I am innocent'".
That was what the noble and learned Lord said on that occasion. I am bound to say that I found that and the rest of his speech almost entirely persuasive, and for rather different reasons, as the noble and learned Lord, Lord Hailsham, will recall, did the then Lord Chancellor. He eventually accepted the amendment and it was as a result of that excluded from the Bill.

I remember the briefing I had then from the Home Office on this issue. The research indicates that it does not make an enormous amount of difference whether a trial is held at a magistrates' court or at a Crown Court. because the percentage acquittal rates are remarkably similar. But that is not the central issue. If I may say so, the central issue is the one which the noble Baroness raised half an hour or more ago in relation to a shoplifting charge.

On the rare occasions that I have sat in court and heard cases of that kind being argued I have often found the issue to be extremely evenly balanced. What was the motive of the woman who it is alleged stole some groceries? I think that if that woman feels that her whole reputation is at stake—that is what we are discussing, a blameless reputation—she is entitled to a jury trial if she wants one. She may be mistaken, but in my view she should have the absolute right to insist on a jury trial. It would be a profound error were we to pass this amendment. We should become involved in some absurd discussion regarding the price of the goods involved, whether they amounted to £74 or £76. That is especially so when, as the noble Lord, Lord Boyd-Carpenter, pointed out, there are other implications in the amendment, particularly in relation to the penalties which can be exacted.

I return to the central issue. If a man or woman believes that his or her entire reputation is involved, it would be wholly wrong for us to prevent them facing trial at the court of their choice.

My Lords, I opposed this amendment, in a slightly different form, in Committee. The amendment has the support of three of the noble and learned Lords on the Cross Benches and of my noble and learned friend Lord Hailsham, and therefore one has to approach the reasoned justification for the amendment with some care. The whole argument in justification, which I propose to suggest is entirely flawed, warrants the most serious and careful attention.

In opposing the amendment, I have much in mind the mild reproof so aptly delivered by the noble and learned Lord, Lord Lane, in Committee, that we should not indulge in "any sort of histrionics". I accept that emotive content ill serves any process of reasoning, and that we must approach this subject, for there are two points of view, on the basis of reasoning and nothing else.

I agree with my noble and learned friend Lord Hailsham that the examples given by the noble Lady, Lady Saltoun, would, if she were charged, have resulted in an acquittal in any form of trial. But that, perhaps, is beside the main point of the discussion. This is a matter upon which I feel deeply, but I shall keep my personal feelings out of it. To shorten the matter, I wish to support, for the sake of the record, everything that has been so ably said by the noble Lords, Lord Mishcon and Lord Wigoder, and to accept their process of reasoning which was moderate and closely put together.

What is the justification? In effect, on analysis, there are three heads, the first of which is to relieve overcrowding in prisons. But other means are available, and it would assuredly be possible to limit first convictions for these offences, where the value is under £75, to a fine, even if convicted on indictment before a jury. Therefore, the logic of that argument, I submit, is flawed, and the logic of each head of argument for justification is flawed.

In any event, the amendment is not apt to deal—and this is the crucial point on this form of drafting, taken first by my noble friend Lord Boyd?Carpenter—with a series of similar charges or with the persistent offender when a sentence of imprisonment, albeit suspended, is the only appropriate sentence.

The second justification is to relieve the congestion in Crown Courts. Other means must be found which do not dilute the quality of justice.

The third and last head is the saving in public expenditure in the context of jury trials, which the noble and learned Lord, Lord Lane, tells us cost some £4,000 a day. The noble and learned Lord said:
"On any rational basis, sentiment apart, trial by the justices, with no option for jury trial … seemed to be the obvious answer",—[Official Report, 26/10/87; col. 373.]
but surely if and only if costs are the predominant concern. Again, I respectfully submit that the argument is flawed because in this matter cost should never be the predominant concern. It is understandable if one takes the standpoint that cost is the predominant concern, as the noble and learned Lord did when he referred to jury trial as a luxury. But I do not, with respect, take that standpoint. It is for that reason that I suggest that the argument is flawed. If it is a luxury where the value of the goods stolen is £100, I suppose that it is no doubt an extravagant luxury to have a jury trial where the value of the goods stolen is £75.

In Committee, the noble and learned Lord, Lord Lane, referred to stealing milk bottles and shoplifting a tin of beans. But the value of such matters is no more than £1 or so, and the amendment goes far wide of any such minimal mark. There is no proposal before your Lordships in this amendment, or in any other, to limit the value to, say, £5—a few milk bottles or a tin of beans—or to establish some sort of petty pilfering offence triable by magistrates. That proposal is not before your Lordships and it is not involved in this amendment. Therefore, the reference made by the noble and learned Lord was quite beside the effective mark.

I suggest that the rational objection to the amendment rests upon some simple propositions. First, the essence of this offence is dishonest intent in circumstances where a conviction can not only change a man's life but alter his whole way of living and adversely affect his means of livelihood with grave social and other consequences.

Secondly, objection is taken because if it is right, and it is assuredly right, that the essential factor is dishonest intent, must it not inevitably be wrong in principle in such circumstances to treat the value of goods stolen as a determining factor to exclude trial by jury?

I am interested to know the answer when my noble friend replies to each of those objections, which I hope are reasoned objections, and which are not put forward in any emotive vein.

The third simple proposition is that trial by a stipendiary (a single professional) or by a Bench of magistrates on an issue of dishonest intent affords no substitute, in the eyes of the accused, for the safeguards of the composite wisdom of a jury. Other points have been made respectively by the noble Lord, Lord Wigoder, and the noble Lord, Lord Mishcon. They stand on their record. They are valid points and require no repetition.

The last objection to the amendment is that the incidence of the exclusion is arbitrary, haphazard and wholly unacceptable. It is wholly unacceptable that an absent-minded professor who walks out of a bookshop forgetting to pay for a book to the value of £74 has no trial by jury; and if the value is £80 has a trial by jury. In those circumstances, if value is to be the crucial issue determining whether there will be a jury trial, then on the border-line cases one will be driven to a preliminary trial on the issue of value—how absurd, what a waste of time, how arbitrary, how unsatisfactory.

For these reasons, which I hope are sufficiently reasoned for your Lordships, I hope that the House will not accept the amendment.

4.30 p.m.

My Lords, in my opinion, the debate has gone on much too long as lawyers' debates tend to do.

As the noble Lord, Lord Campbell of Alloway, said, the noble and learned Lord, Lord Lane, the Lord Chief Justice, described juries as a luxury. They may he. What is real luxury is prison. We cannot afford to send petty offenders to prison on the scale that we do. I have been working all my life to try to stop this—the situation has become steadily worse with crimes getting pettier and pettier and sentences more and more frequent. Therefore, I could not support my noble colleagues by voting against the amendment. The amendment is not correct in my view and needs a good deal of handling, but I shall certainly not vote against it.

My Lords, when my noble friend Lord Elton raised this matter on Second Reading and in Committee I thought it right to approach it with an open mind. During the Committee debate and again this afternoon powerful arguments have been made in support of my noble friend's amendment and equally powerful ones against it. I do not need to weary your Lordships now by repeating what other noble Lords have already expressed most persuasively. But I have taken very careful note of what has been said.

I sense that there is considerable agreement that by and large minor cases of theft can and perhaps should be tried in the magistrates' court. My noble friend Lord Elton and other noble Lords have drawn attention to the sizeable reduction in Crown Court business and, to a lesser extent, the prison population, which would be effected by the amendment. Other noble Lords, including the noble Lord, Lord Wigoder, have rightly pointed out that there would be a corresponding increase in the workload of the magistrates. I sense that there is somewhat less widespread agreement about whether a tine of £1,000 is the right maximum penalty. Some noble Lords, including my noble friend Lord Boyd-Carpenter, have argued that while this may be adequate for first-time offenders more severe measures are required for persistent offenders and especially the "professional" petty thieves.

My noble friend Lord Elton said that his case was absolutely indisputable
"if all other things were equal".
But of course not everything else is equal in this world.

Where I detect a profound difference of view is in the issue of principle which lies at the heart of the matter: the availability of jury trial for those charged with offences of dishonesty. Many noble Lords have argued—and opinion has certainly not split along party lines—that it would be wrong to remove jury trial from an offence which society views with such seriousness and which carries with it a special stigma; a conviction for theft, albeit a minor theft, is sufficient to destroy a person's good reputation. I should say that I should not myself defend this view with quite the passion which has been elicited by, in particular, the noble Lord, Lord Mishcon, and my noble friend Lord Campbell of Alloway. I think it is right to acknowledge that many offences are entrusted to the magistrates to try, including some which can have a damaging effect on a person's career or reputation. But I am bound to recognise the force with which noble Lords from different Benches in your Lordships' House have opposed the amendment on the deeply and sincerely held belief that it is wrong in principle.

I answer now the question of my noble friend Lord Elton about legal aid savings. We estimate that if 10,000 petty theft cases were transferred from the Crown Court to the magistrates' court, the reduction in legal aid expenditure on those cases would be of the order of £2·8 million. Whether such savings would materialise in any particular year is dependent on whether other cases are brought on earlier.

My noble friend Lord Elton has done the House a great service by raising this most important and difficult matter in a way that has enabled it to be thoroughly analysed and explored in debate. I believe that the issues are finely balanced. I am bound to say, however, that the very strong doubts that noble Lords have expressed and the absence of general agreement on the principle underlying the amendment make me doubt whether it would be wise to add such a provision to the Bill at this stage in its progress. In the clauses that we have earlier agreed, we shall be providing some much needed relief for the Crown Courts. I should prefer to leave it at that. Much though I sympathise with my noble friend's motives in bringing forward this proposal, I therefore hope he will not press it to a vote; and, if he does so, I fear that I could not advise your Lordships to amend the Bill as he proposes.

My Lords, I am deeply grateful to those noble Lords who have supported the amendment. I am almost equally grateful to those noble Lords who have resisted it, thus bringing into the open the forces that I have to overcome. It is always easier to defend an enemy that one sees.

The noble Lord, Lord Harris of Greenwich, put me in a new position. Members of another place have often been quoted to me but never members of still another place, as the late Lord Morris of Borth-y-Gest now sadly is.

My noble friend Lord Campbell of Alloway—I shall speak only briefly to his speech—said that in making imprisonment available on subsequent offences but not on the first offence we should relieve the pressure on the prisons. Relief of pressure on the prisons will come not from a change in sentence for the offence; but as a result of relief of the load on the Crown Court that will come from converting the offence into a summary offence.

The noble Lord, Lord Wigoder, reminded your Lordships that magistrates too are very busy. It is difficult to give an exact comparison of statistics with those that I have given for the Crown Court. If your Lordships refer to Issue No. 33 of the Statistical Bulletin published this year by the Home Office. they will see in table I that the average time from charge to completion on an indictable offence is 74 days, on a summary non-motoring offence, 54 days, on a summary motoring offence, 71 days and on all offences, 68 days, compared with 98 days in the Crown Court.

A number of your Lordships said that to be charged with this offence is the worst possible slur on a person's character and that magistrates are not up to taking a decision on such matters. In fact, magistrates take a decision whether or not to send someone to prison for six months under the Rehabilitation of Offenders Act and I do not doubt that they do so in other respects. These are relatively minor considerations.

My noble and learned friend Lord Hailsham said that sooner or later we shall have to grasp this nettle. He is doubtful whether we shall seize it in this form. I said at the Committee stage, and I repeated it in my introduction, that I believed that there was room for improvement in this amendment because it did not tackle the question of cumulative offences nor did it tackle the question of the aggregation of values in individual offences tried together. I asked about that at the beginning of this debate. I had hoped that the Government would give us a line on this matter, but they have not. Therefore this is something which I shall have to take on board myself and I cannot do it at this stage.

I shall consider coming back to your Lordships at Third Reading, making these provisions and collecting several of my noble friends and the noble Lord, Lord Paget, on the way. I repeat that justice delayed is justice denied. Magistrates' courts deliver justice. When I return, if I do, at Third Reading I shall have no hesitation in running up the flag that the noble Lord, Lord Mishcon, ran up so often in engagements with me in the past by reminding the people sitting behind him, when he makes his points again, that this is not a party political issue and that they should vote according to their views.

My Lords, before the noble Lord sits down, will he kindly remind me of any sentence that I uttered which made this a party issue? Does he remember that the noble Baroness, Lady Phillips, rose in the course of this debate and very resolutely, as is her way, opposed everything that I had said?

My Lords, reversing the words of the noble Baroness makes it better. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.