ACTUALITY: LEON HAWTHORNE: A first step into the criminal justice system. Every year, over two million criminal trials take place in England and Wales, and the wheels of justice turn slowly under the pressure. After the initial arrest, if charges are brought, you face a legal maze that's both confusing and frightening, especially if you find yourself locked up. Most of us have never seen the inside of a police cell, but if you do fall foul of the law, for serious crimes, you have the right to put your case to a jury of twelve ordinary citizens. However, the government is trying to restrict that right for a wide range of offences, imposing more trials by magistrates. But it's possible the government's plan could be scuppered in the House of Lords. BARONESS HELEN KENNEDY: I think most of us would agree that the best way of being tried is by a jury of twelve people, who are not case hardened and who come to the issues fresh, unlike judges and magistrates. And if you or I were to be in trouble in any form, or our children, that's how we would want the issue to be dealt with." LORD WILLIAMS OF MOSTYN: We're not undermining the right to jury trial. What we're saying is you shouldn't have the automatic right to trial by jury, if you're charged for instance with stealing a jelly or a banana from Tesco. That's completely different to a serious trial like murder or rape, or an allegation of theft where your livelihood and your reputation are at stake. HAWTHORNE: The former Labour Leader on Bedford Council, Mike Cotter is one man who's grateful for the jury system. Three years ago, he faced the threat of jail after he was charged with corruptly using his office to make money for himself. It turned out to be a very short journey from the council chamber to the courtroom. MIKE COTTER: Fortunately up to that time I'd not had too much experience of the legal system, only from a distance, but when I met with my legal advisers they were very keen to ensure we went to the Crown Court and the jury system because they felt the magistrates would not understand the complexities of the case. HAWTHORNE: The advice from his solicitor, Martin Oldham, proved invaluable. They opted for a jury trial and managed to show the weakness of the prosecution case. The judge instructed the jury to return a not guilty verdict. Oldham believes the result would have been different if they had opted for a trial by magistrates. MARTIN OLDHAM: If the case had come before a magistrates court, I've no doubt at all that the verdict would probably have been guilty. Had the verdict been guilty and given the charges that he faced, without a shadow of a doubt I suspect we would have been waving goodbye to him in a prison van. HAWTHORNE: This is the first view defendants have of the system that will judge them. Magistrates Courts handle ninety per cent of all criminal cases. Only the most serious crimes like murder automatically go to a Crown Court with a jury. Mike Cotter's case was what's called "either way", meaning he had a choice of magistrates court or jury trial. It's this right the government wants to scrap and introduce a system, similar to that in Scotland, where magistrates decide where people are tried. The Home Office estimates the proposed changes to the law will mean that twelve thousand people who want a jury trial in a Crown Court will in future be forced to have their cases tried in a magistrates court like this one. Instead of twelve jurors, a bench of three magistrates will decide on the defendant's guilt or innocence. The government says this will save both time and money. LORD WILLIAMS: It's about saving resource. It's very important that a jury trial is actually focussed on the important cases, looked at objectively; how is it right that someone shall wait in prison, on remand, for six or nine months waiting for trial. How is it right for me to say to a child, your case can't come to the Crown Court, because the system is clogged up with sixty per cent of people who opt for a jury trial and then plead guilty. LORD COPE: The government say it'll save a hundred and five million pounds which is actually not a large sum given the cost of the whole court set up altogether. It's well within the margin of error of what they expect to spend in any given year. Jack Straw, when he was in opposition and this matter was discussed a few years ago said that he thought the time savings were illusory and I think he was right then. HAWTHORNE: Not only did Jack Straw challenge the practical benefits of this idea when the Tories considered it, he condemned the very principle as unjust. JACK STRAW: Surely, cutting down the right to jury trial, making the system less fair, is not only wrong but is short sighted and is likely to prove ineffective. HAWTHORNE: Now they're in government, Labour believes magistrates should have the power the Tories considered. They claim this isn't going back on their word, because they've written into their proposal a right of appeal against the magistrate's decision. LORD WILLIAMS: Michael Howard's legislation didn't have the right of appeal to the crown court judge. I think that's critical and it's perfectly well known, I'm on record as saying this, I wouldn't have gone along with this change if there wasn't the right of appeal to the judge. HAWTHORNE: Those facing criminal charges often feel they can't identify with the mainly white, middle class, conservative minded magistrates. Many fear that simply because they've been arrested, magistrates will automatically assume they're guilty. In the early stages of Mike Cotter's case, he had various hearings at his local magistrates. From this, he got the strong impression they were biased in favour of the prosecution. COTTER: There seemed to be very strong leaning of the magistrates towards whatever the police said, they were very happy with that and didn't seem to be prepared to challenge it in any way. BARONESS KENNEDY: Certainly that's been my experience - is that because the magistrates are seeing, very often the same police officers, come regularly before them, they do tend to see police evidence as being by and large that which should be believed. HAWTHORNE: Experienced defence lawyers like Martin Oldham are reluctant to bring cases before magistrates because of this perceived bias. Also, when he goes for a jury trial, the prosecution is obliged to disclose evidence, not available at the lower court. OLDHAM: If Mike Cotter had pleaded not guilty before the Magistrates Court, without the kind of disclosure we were able to obtain, it's almost certain that before the Magistrates Court they would have convicted him. For example, in relation to some evidence, we were able to show he was not at a place where the prosecution alleged. That disclosure was vital and fundamental to the case that he faced. Without that, the chances are he would have been convicted. HAWTHORNE: Critics worry that more innocent people will end up behind bars. They also believe the proposed new system will also discriminate against the vulnerable because magistrates will be allowed to look at a defendant's "reputation and livelihood" before deciding where he's to be tried. LORD COPE: I don't think that the method by which somebody is tried for an offence should vary according to whether he's unemployed or whether he's got a good job or a bad job or no job at all. I don't think that should affect the decision on where a case should be tried and where justice should be done. BARONESS KENNEDY: This Bill really is an affront to liberty. I mean it is an erosion of citizen's rights but one of the things that's most awful about it is that it allows for choices to be made about those who have reputations that should be protected, those who are worthy of trial and those who are unworthy. And that's pretty despicable." HAWTHORNE: And some Peers are concerned the Bill will undermine the confidence of black people in the criminal justice system because of a belief magistrates courts discriminate against them. LORD WILLIAMS: I think the young black unemployed lad has a reputation and a prospect of livelihood, which to me is just as important as the white middle class middle aged person. And we've got the over-arch in the Bill that the court can take into account any relevant circumstance. So, I reject the proposition that black people or Indian people or Asian people will be discriminated against. I simply don't believe it. LORD ACKNER: I think the black community's confidence in our administration of justice, is at rock bottom after the Lawrence inquiry. And I think anything that removes from them what they consider to be an important protection, an important means of getting justice, will increase their hostility to the system, very understandably, and one would have thought in fact that a sensitive Government after the Lawrence case, would have not proceeded with this. HAWTHORNE: Despite recent reforms to remove voting rights of most hereditary peers, the government is still in the minority in the House of Lords, it has slightly more than a quarter of all members. So with a Labour back-bench rebellion brewing, a determined Conservative-LibDem attack and discontent among cross benchers, the Bill faces huge obstacles when it returns to the floor of the House, early next year. BARONESS KENNEDY: Many Labour supporters are appalled and outraged by this and indeed in the House of Lords, in which I sit, many Labour people are very anxious about it. Now, I suspect the whips will get to work, but they won't get to work on me and I suspect a number of other people will take the same view, that this is a step too far. LORD WILLIAMS: All I say to my friends and colleagues in the Lords is, why don't you actually open your mind occasionally and listen to the argument. Whether I'll succeed in that is a question that remains to be decided. HAWTHORNE: The row over this proposal comes at a time when a reformed House of Lords feels it has new constitutional legitimacy. Lords rarely throw out government Bills completely, but on this occasion, some are suggesting just that because - for them - this Bill has no redeeming features. LORD COPE: I don't believe that even if every amendment we put up was accepted by the government that it make the bill acceptable. They don't go to the principle. And so what we're trying to do is to get the government to withdraw the Bill and to forget the proposal, and if they do that then that's fine. If not, then we shall vote against the principle of it. LORD ACKNER: I will certainly vote against the Bill. I think there will be a majority and a significant majority, in the House who will do likewise. And as a result the bill will fail. HAWTHORNE: Today, Mike Cotter is a free man preparing to celebrate Christmas with family and friends. In future, the choice of trial by jury could be taken out of the hands of ordinary people. But the government faces a serious challenge from those Lords who fear our traditional rights are under threat and who want to ride to the rescue.