My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Baroness Scotland of Asthal.)
We now move to that part of the Criminal Justice Bill entitled, "Trials On Indictment Without A Jury".
I oppose the Question that Clause 41 stand part of the Bill and indeed the whole of Part 7, which seeks to restrict jury trial. I asked for all the clause stand part debates relating to Part 7 to be grouped today because, from these Benches, our objective is to strike Part 7 from the Bill. We therefore consider that if we are successful in deleting Clause 41, all the other clause stand part debates will be consequential and all the other clauses will fall. It is on that basis that I speak today.
I do not need to remind your Lordships of the fundamental importance of jury trial to our democracy. It provides a crucial link between the citizen and the system of justice. Trial by one's peers prevents the justice system becoming a matter of the state judging the citizen. Trial by jury is far more popular with the public than any politician or political party. The polls clearly state that. At Second Reading, the noble Lord, Lord Brennan, said:
"This country of ours exists on some very important traditions—traditions that bear the test of time. If you asked any citizen of this country which is one of those great traditions, I have no doubt the answer would be the jury trial".—[Official Report, 16/6/03; col. 593.]
So it is of critical importance. It is against this background that some three years ago the previous Home Secretary brought forward proposals to abolish the right to elect jury trial in either-way cases. Those proposals were rightly rejected by your Lordships' House not once but twice in two Bills in the same Session. Now a different Home Secretary again proposes to cut back the right to jury trial, but the Government have shifted their position from one extreme to the other.
What is the reason for this Government's obsession with restricting the right to trial by jury? I do not believe for one minute that the Government are bringing forward the measures set out in Part 7 because there has been a huge call for them from the Labour Party or from the general public. In that sense, the debate we are having now is by no means party-political, and I certainly do not seek to make it one. Some of the staunchest defenders of jury trial sit on the Benches opposite and on the Labour Benches in the House of Commons.
Rather, what the Government are seeking to do is a more serious manifestation of a much more important confrontation than mere party politics; namely, the relationship between the state and the citizen. As the noble Baroness, Lady Kennedy of The Shaws, reminded us at Second Reading:
"The Government have designs on the jury, and this is just the beginning".—[Official Report, 16/6/03; col. 621.]
That comment echoes the words of Lord Justice Auld. I was interested to read his lecture to the Medico-Legal Society given at the Royal Society of Medicine on Thursday, 9th May 2002. The right honourable Lord Justice Auld said in reference to no jury trial in a relatively small category of serious and complex fraud cases that the proposals would make,
"a good starting point . . . if that reform comes about, and if it is a success, then consideration could be given to extending it".
If I read aright the contributions made by noble Lords at Second Reading, that is what troubles a great many of us. There is a question over whether these proposals will be extended.
In any event, why are we dealing with that in what can only be described as a "bits and pieces" reform? I shall return to that question in a moment. But of course many noble Lords present in the Chamber today were also present in your Lordships' House at the time when the Government brought forward the Criminal Justice (Mode of Trial) Bills to end the defendant's right of election in either-way cases. At the time it was said from the Treasury Bench that there was no question of ending the use of jury trial for serious cases.
At Second Reading of the first Criminal Justice (Mode of Trial) Bill the noble and learned Lord, Lord Williams of Mostyn, said that:
"For serious cases, the accepted means for defendants to be tried in our jurisdiction is by jury. It is extremely important that that should continue where the state and the citizen are engaged in matters of proportionate importance. We want to strengthen and improve the workings of the jury system in serious cases".—[Official Report, 2/12/99; col. 922.]
When the second Bill, the Criminal Justice (Mode of Trial) (No. 2) Bill, came before your Lordships' House, the same noble and learned Lord made the same point about the importance of jury trial for serious cases when he said this:
"Perhaps I may say by way of background that the right to an impartial trial in a reasonable period of time is one of the rights in the European convention. It is not a right that attaches only to defendants. I suggest that it is the right of the wider community that serious cases should be tried in the Crown Court with a jury within a reasonable period of time".
He went on to say in the same speech that:
"I understand as well as anyone the importance of trial by jury. It is the appropriate remedy in serious instances where the state and the citizen's interests collide".—[Official Report, 28/9/00; cols. 961 and 963.]
So, we were told previously that the Government's proposal to remove the right of election in middle-ranking cases did not mean there was any question of ending the use of jury trial in serious cases. Now the Government have put forward the very series of clauses which we were assured were not in their minds just three years ago. They say to us, as no doubt the noble Baroness, Lady Scotland, will say again this afternoon, that their proposal to end the use of juries in some serious cases does not mean that there will be any further erosion of jury trial. While the noble and learned Lord, Lord Williams of Mostyn, said that jury trial would be retained for serious cases, last month the noble and learned Lord the present Lord Chancellor said that jury trial would,
"continue to be the norm for the vast majority of serious cases".—[Official Report, 16/6/03; col. 560.]
Thus in three years we have moved from jury trial for serious cases to the "vast majority" of serious cases. Where will the Government be on this matter next year, the year after or in three years' time?
On that basis, I submit that Members of this Committee justifiably should be apprehensive not only of the Government's present intentions, but of what the Government's intentions may well be in the future if the principle that not all trials on indictment should be by trials by jury is conceded by us in this Bill.
Within the nine relevant clauses in the Bill, there are three main areas in which the Government have designs on trial by jury. At this point I should make the comment that this Bill is extraordinarily long. It contains a whole series of very important measures. There are 307 clauses and 32 schedules set out over 374 pages. Why, then, do we have these provisions to restrict trial by jury? Why have they been slipped into what is a Bill of some considerable importance? We await the response from the noble Baroness, but it is a question that should be asked.
Contained in the nine clauses are three particular categories of trial by jury that are to come under Part 7. The first category covers defence applications for trial without a jury, the second covers prosecution applications in what are described as "complex or lengthy trials", and the third category is where there is an issue of jury tampering. I believe that the Government's proposals are flawed in many ways, but let me deal in turn with each of those three areas as briefly as possible.
Clause 41 will create a two-tier system and is, I believe, divisive. Defendants charged with offences that attract serious public opprobrium may well opt for trial by judge alone, not daring to face trial by jury. Also, there is a two-tier system in the Bill itself. Under Clause 41(2), the defendant,
"may apply to a judge of the Crown Court for the trial to be conducted without a jury", but, under subsection (6), may not do so if,
"the defendant, or any of the defendants, holds, or has held, an office or employment concerned with the administration of civil or criminal justice".
So a police officer, lawyer or judge must be tried by jury if the offence raises questions about the discharge of his functions or whether he was a fit person to hold the office; that is, any offence of dishonesty. That is a very curious, two-tier system.
Will defendants engage in "forum shopping" in the hope that they will get a particularly liberal judge? I recall that in the debate on Second Reading the noble Lord, Lord Clinton-Davis, said something with which we all agreed:
"Juries, unlike judges, are not inclined to be either pro-prosecution or pro-defence".—[Official Report, 16/3/03; col. 613.]
In the speech made by Vera Baird QC, MP, in the other place, she, too, said that defendants would abuse this new provision. Although I do not have time to do so in my remarks, I hope that some of my noble friends will refer in more detail to Vera Baird's remarks. The notion of how defendants would abuse the new provision struck a chill in many hearts, in particular in regard to perceptions of racial and gender bias, due to what is, at present, the overwhelmingly white, male nature of the Crown Court judiciary.
I turn now to Clause 42 covering prosecution application in complex or lengthy trials. This marks the erosion of jury trial on the grounds of expediency. If the Government have their way, then the most serious types of complex cases, such as trials on indictment for serious fraud, major drugs rings and so forth, will be tried by judge alone, but lesser trials on indictment, such as street robbery, will be by jury only. That line is very difficult to draw and surely it is only a matter of time before the Government seek to remove the right to jury trial for more trials on indictment, if the principle that some of the most serious offences can be tried by judge alone is conceded.
Juries well understand the issues relevant to guilt or innocence, particularly in relation to dishonesty in serious fraud cases. Indeed, the standard for dishonesty used in court is the Ghosh test—the ordinary standards of reasonable people as to whether what was done was dishonest and whether the defendant must have been aware that his conduct would have been regarded as dishonest by such people. Surely members of a jury are the best possible people to determine this.
Simplifying the law on fraud to make it easier not only for jurors but also for judges to understand is surely preferable to dispensing with juries altogether. There are Law Commission reports and proposals in this area—for example, Report No. 276, issued last year—to simplify the law on fraud and we should carefully consider going down that road.
Any problems with juries in fraud trials are surely better addressed by improved case management—for instance, by allowing the judge to give written notes to the jury, better conditions for jurors and so on.
This issue is not confined to serious trials. Clause 42(5) states that juries can be dispensed with in any case where there are complex or lengthy issues of a,
"financial or commercial nature or which relate to property".
I am advised that this could well extend to money laundering cases, terrorist financing cases, drugs importation cases, major health and safety cases and even to offences such as arson and criminal damage. Thus many more cases will be affected than the Government have so far claimed. Even a murder or rape case could be tried by a judge alone if it fitted the criteria laid down in the clause.
I am much obliged to the noble Lord. Is he aware that sometimes the prosecution itself acts horrendously? I remember a case—I am sure this can be multiplied by a number of other instances—where a large number of documents were served on me which were entirely irrelevant, and so another set of documents had to be served. That kind of situation is untenable and avoidable. As far as I am concerned, juries understand the basic purpose of a trial, which is to decide whether or not there had been dishonest behaviour. Does the noble Lord agree?
The noble Lord knows much about these matters. He is right. A great deal of unnecessary documentation could be dealt with at an earlier stage through pre-trial hearings in order to restrict the consideration. After all, the only real question is whether or not a defendant is dishonest. Surely there must be a better way of simplifying the issues.
As to the third area, that of jury tampering, I am sure that I speak for all Members of the Committee when I say that we have much sympathy with the police if indeed, as the Deputy Commissioner revealed in a letter to The Times today, this problem is growing. We need to conduct urgent research. Let us look at the details and consider what it is best to do—but not as a part of a bits-and-pieces package to dispense with jury trial.
Jury tampering needs to be tackled head on. It cannot be countenanced in this country that there should be such tampering. There are existing common law powers for a judge to intervene, to stop a trial and to then order a retrial before another jury, perhaps hundreds of miles away. Such common law powers exist. If the mode of trial is altered under threat, the problem will not go away. It will still be there, but it will be restricted to the judge. If the problem is not tackled head on, extra security for judges and their families would be a consequence.
The noble Baroness, Lady Scotland, and her entourage have moved into overdrive and there has been a highly orchestrated publicity campaign. I was delighted to see in the Guardian, if I may compliment the Minister, a marvellous photograph of the noble Baroness. Underneath the picture were the words "Scotland the brave". The article states:
"Can Baroness Scotland (above) ride to the government's rescue in the Lords today and save plans for judge-only trials?".
I have read with great interest the Minister's comments—no doubt they trail what she is about to say—and three words came across to me: namely, "cause to pause". She said that if indeed it was a fact that where there had been an attempt at jury nobbling juries were more likely to convict as a result, that gives "cause to pause". I hope that the Minister not only meant what she said but will put it into action today. This is a wonderful moment for the noble Baroness to save the Government from going down the wrong path and to say to the Committee today, "We are not going to move these clauses. We are going to remove them from the Bill and think again. We are going to have a moment of pause".
I hope that the Government will think again. Telling the public that certain cases are inappropriate for juries will surely undermine confidence in and commitment to the jury system. Trial by judge alone would see the independence of the judiciary called into question, to say nothing of the pressures it would place on individual Crown Court judges, an issue on which there has been no research and no consultation. There are many other issues that I hope will be raised during the course of the debate.
As I said at the beginning of my remarks, the Government's proposals are, to use the phrase used by my right honourable friend the shadow Home Secretary in another place, taking us well down a slippery slope. Another shadow Home Secretary once said when opposing the restriction of jury trial that,
"Fundamental rights to justice cannot be driven by administrative convenience".
Those are the words of the present Prime Minister, Mr Tony Blair, then shadow Home Secretary. I was there and I heard those words. He is now Prime Minister. I am in total and complete agreement with him.
"The Bill"— that is, the Criminal Justice Bill—
"respects and safeguards that central principle of our system".—[Official Report, 16/6/03; col. 560.]
This is where we on these Benches part company with the Government. The Bill neither respects nor safeguards jury trial and puts administrative convenience ahead of fundamental rights. For the reasons I have outlined, we not only oppose Clause 41 standing part of the Bill but seek to remove Part 7 from the Bill today.
Three years ago, the House stood up to the Government in defence of this central principle of our system of justice. I very much hope that the Committee will send the same message to the Government that they should end this obsession with restricting trial by jury. There are many provisions in the Bill which merit our consideration and support. Let us remove Part 7 and get on with our scrutiny of the remainder of the Bill.
We on these Benches support the noble Lord, Lord Hunt, in his moving opposition to these clauses. We, too, believe that Part 7 should be removed from the Bill.
It is a curious paradox that during this week the Lord Chancellor should complain about the homogenised nature of the judiciary—70 per cent white, male, middle-aged and Oxbridge—and that he should talk about setting up a commission in order to expand the pool from which the judiciary are chosen to include younger people, more women, people from different ethnic backgrounds and so on. That mixture of people—young, different ethnic backgrounds, men and women—is the very foundation of the jury system: a mixture of people which amounts to a mini parliament—a democracy in itself—and which has always acted as a buffer against repressive regimes and against repressive laws.
The noble Lord, Lord Hunt, referred to the noble and learned Lord, Lord Williams of Mostyn, and the remarks he had made on previous occasions when the Government sought to restrict the right to jury trial. I find it rather interesting to illustrate my point in this way. The noble and learned Lord, Lord Williams of Mostyn, comes from an area 25 miles or so from where I live. We share very similar backgrounds; we went to very similar educational establishments. I think we have the same Presbyterian background—progressive, anti-privilege and anti-establishment. Indeed, the noble and learned Lord is anti-establishment even though he now embodies the establishment. We have shared values—I know that, for us, certain truths are self-evident. Although we dance to different party Whips, I would be very surprised if the views of the noble and learned Lord, Lord Williams, differed from mine on all the great issues that shake your Lordships' House such as fox hunting, Section 28, jury trials or the composition of the House of Lords.
If one were to imagine this House made up of 650 Queen's Counsels, all of whom had been born and brought up in north-east Wales, this place would be unutterably boring. It is the fact that there are other people who have different values and hold to different principles, who believe in stability and continuity, that allows this Parliament, in both Houses, to work as a democracy and to represent all the people of this country.
People who believe in stability and continuity—and many of Her Majesty's judges are such people—have other truths which appear to them to be self-evident. Very often, those of us who come from the sort of background that I have described, hit up against the self-evident truths of the judiciary—less so, when it comes, perhaps, to the jury.
The jury is an essential democratic institution at the heart of the system of justice in this country. Any attempt to weaken it should be resisted. Clause 41 deals with the choice of jury trial. The defendant is to have the opportunity of choosing to be tried by a judge alone. The defendant will choose to be tried by a judge alone only if he sees some advantage to himself in it. That may not necessarily be in the interests of justice.
Lord Justice Auld said in his report that the judge sitting alone would be a simple, more efficient, fairer and more open way of justice. I do not believe that to be true for a moment. Who will be attracted to the idea of being tried by a judge alone? Sex offenders, perhaps, who have been the subject of massive publicity. Perhaps a white person charged with the rape of a black girl would fancy his chances more in front of a white judge sitting alone. If he were to be acquitted, what an uproar there would be throughout the press against the judge who had come to that conclusion.
Perhaps middle or upper-class fraudsters going into court wearing the right tie—one shudders to think it, but it could be a Garrick Club tie or one from another institution—would think that the person trying them shared their values, was not a cross-section and would respond to the sort of explanations that they wished to put forward for what was suggested against them.
The third category might be those who have no real merit but who hope that by the use of some technical argument they might be able to find a chink in the reasons that a judge sitting alone would inevitably have to put forward for his verdict and thereby get off on a technicality.
One can see all sorts of grounds for public disquiet; where a judge alone was chosen by the defendant it would be seen to be a mode of trial that was not open and not necessarily independent. It would not be open in the sense that a great part of any trial these days consists of the prosecution going to see the judge without the knowledge of the defendant to make a public interest immunity application. Private information is handed to the judge which the defendant does not know about and cannot check. This system, I respectfully suggest, is not acceptable.
In Clause 42, we come to the perennial question of fraud trials. It so happens that the rate of conviction in fraud trials is variously assessed as between 83 and 87 per cent of those who are tried. That is significantly higher than the percentage of those convicted in all other trials. So what is wrong with the current system? It is said that fraud trials are too complex and that juries do not understand. There is an enormous arrogance in assuming that juries do not understand. That is not my experience. In most fraud cases, the financial background is perfectly clear and usually unarguable. The issue before the jury is simple: what did the defendant do and was it dishonest, not by the standards of the City of London but by the standards of the cross-section of ordinary people of this community?
It is said that we should have a judge sitting alone to try fraud trials because of the length of trials. What is being saved by the abolition of juries? The jurors' time, but I think we should be robust about that. It is a very important part of being a member of society to serve on a jury and to understand the complexities of the criminal justice system and how it works. How else is it to be shortened? Are witnesses to be clipped? Is cross-examination to be shortened? Are lawyers to be paid less? I fail to see the savings in the length of trial conducted by a judge sitting alone. That is not the experience that some of us have from viewing prosecutions in Hong Kong, for example, where very lengthy trials take place before district judges.
It is for the prosecution and the defence to make it clear where the criminality lies in a fraud case so that if a person goes to prison for a long time, the public understand it and there is no criticism of the verdict of the jury one way or the other because the public are a part of it.
Clause 43 deals with jury tampering. I am amused to see that the noble Baroness, Lady Scotland, as the noble Lord, Lord Hunt, pointed out, feels that jury tampering is unfair to a defendant because it is more likely to lead to his conviction. Jury tampering will never take place in a trial in which the defendant is totally innocent, because then there is no need to tamper with the jury. The fact that the conviction rate is higher in cases where tampering has taken place is wholly unsurprising.
The Metropolitan Police have provided the service to about four to five trials per year across all sorts of trials, whether they emanate from the Crown Prosecution Service, Customs and Excise, or elsewhere. That is not a great number of trials; that is no reason to breach the principle of jury trial.
The terms of the clause are nebulous. The judge is to sit alone if there is "real and present danger" of jury tampering. What is that—a subjective judgment by the police supported by evidence which is presented to the judge in a public interest immunity application that the defence never sees? If the judge has been provided in the middle of the trial with private information that jury tampering has gone on in respect of the defendant who stands before him, so that he decides that he should discharge the jury, does the trial continue in front of him? How can he dismiss from his mind that which he has been told in secret and which has caused him to rid the trial of the jury because of suspected tampering?
In all those ways, there is continuing pressure from the Home Secretary and, no doubt, from the police behind him, to get rid of the jury trial. It is seen as something that prevents justice being done. I hope that all noble Lords will reject any such notion and will join us when and if we reach a vote on this subject.
I put my name down with those who wish to oppose the jury proposals standing part of the Bill. I know that there is a great danger that one will make a Second Reading speech rather than confine oneself as one should in Committee. If I err in that direction, the Government are to blame to some extent because we should have had two days for making speeches on Second Reading, in which case we could have done more than choose one point out of 200 pages of clauses, and another 200 pages of schedules.
I shall try not to repeat the philosophy and the points already made. In October 1998, the Fraud Advisory Panel submitted proposals to the Lord Chancellor's Department for procedural reform in cases of serious fraud following the establishment of a review of pre-trial procedures in such cases. A short while before, the Home Office had also published a consultation document entitled Juries In Serious Fraud Trials, in which a number of different options for the trial of serious fraud were canvassed. The Government have taken no action on those proposals, which has caused members of the fraud prosecution very sensibly to take the view that, before the question of dispensing with trial by jury is contemplated, we should first put forward procedural amendments. Such amendments would substantially shorten the process, reduce the cost and reduce the burden placed on juries. Then we can reconsider the wisdom of managing without juries. A number of those suggestions are conveniently set out in one of the briefing papers from Justice, on which I hope that the noble Lord, Lord Alexander, may expand. I found it extremely helpful.
The suggestion has been made that long cases are simply not appropriate for juries. I have read an article on the Wickes case, which took 10 months to try. It took the jury less than eight hours to reach unanimous verdicts, finding all three of the accused not guilty. In the course of his summing up to the jury, the trial judge said:
"The care and attention which you have devoted to this case has been obvious to me throughout from almost the very first moment you started to try this case. Those who may hereafter criticise juries' appreciation of lengthy and complex fraud cases would have done well to see the care and attention that, as I say, you have given to this case throughout".
"That this House reaffirms its faith in jury trial for serious criminal cases as an essential cornerstone in British liberty; recognises that it provides a unique example of the responsibilities of citizenship; rejects the unfounded and unsubstantiated allegation that jury men and women cannot comprehend complex factual issues; and recognises that procedures and powers already exist to distil issues and shorten trials in serious fraud cases and to guard against rare attempts to tamper with the jury".
I wish to make a brief comment on the suggestion that the accused, or the prosecution, should have the option to choose trial by judge alone. That is the beginning of creating exceptions that will ultimately do the whole jury system down. It will result in suspicion when members of the jury come to hear the case where the accused is content to have the advantage and the disadvantage of a jury trial. They will wonder why that person has not chosen to be tried by judge alone. They will wonder whether he thinks that he can pull the wool over their eyes more easily and they will ask themselves whether that is why he has chosen trial by jury. This will give rise to a potential distortion, which is a cause of considerable anxiety.
At the back of the matter is the Treasury approach of value for money. The Treasury does not believe that a jury trial in long cases gives value for money because it takes longer and is more expensive. The Treasury concept of value for money is not the same as the consideration as to whether a system is delivering a better justice.
The only other point that I want to make is on the question of public perception, which I believe to be very important. A large proportion of the public, particularly the ethnic minority groups, looks upon trial by jury as giving a better quality of justice. They suspect that a judge has become case-hardened, which would not be surprising because the same sort of defence may be served up time and time again. That has often been the criticism levelled against stipendiary magistrates who are now district judges.
I believe that in the majority of fair-minded judges there can be a subconscious bias towards the prosecution. Although it is not in any way meant to be an unjust approach to the case, there is a feeling that the case would not have been brought if intense investigation had not shown that there was a strong case to answer. That perception is terribly important. If the minority feel that they are being done out of what they consider to be the only truly just and dispassionate way of getting justice, then a real sense of injustice will pervade a part of that population which already views the establishment, so to speak, with deep suspicion. Even though most of us may disagree with it, we must allow the perception to be satisfied. We do not do that by this objective approach to which system sounds and seems the most likely to give the best value for money. Accordingly, I subscribe to the amendments.
I have a real sense of deja vu because I have made many speeches in this House on the subject of juries. Two previous Bills were defeated when the Government tried to persuade us that the jury system should not be wasted on low-level crime and small-time offenders who abuse the system. At that time, the argument was that serious crime deserved the Rolls-Royce of jury trial—it was the less-serious crime that did not deserve it. I am afraid that, having failed at the lesser end, the Government have turned their assault on its head.
Last weekend, the Prime Minister opened a conference on the renewal of the third way. A list was put up outlining what would be discussed, and it contained seven categories. The sad thing was that the third way clearly has nothing to say when it comes to liberty and justice. The Government have allowed the agenda on law and order to be set elsewhere. What is forgotten is that the "law" part of the "law and order" strapline actually refers to justice—not to the making of laws, but to justice.
Although the jury is 800 years old, and the Government tend not to like anything of age, it is one of the most modern institutions in our firmament. It speaks to all those things that should be at the heart of a contemporary society. It empowers the citizen. It requires his or her responsibility to society. It means giving something back, participation, belonging to a community and bringing the community's values into the court room. By so doing, it validates the legal system.
It is highly desirable that society as a whole should be represented within the processes that determine guilt or innocence because a fellow citizen may be punished as a consequence of that verdict. These processes affect liberty.
Lord Devlin's description of the jury as a mini-parliament—and therefore as an element of our democracy—has already been quoted. However, Lord Devlin also said:
"the first object of any tyrant in Whitehall would be to make parliament utterly subservient to his will and next to overthrow or diminish trial by jury".
While we may not be talking about tyrants, I asked a notable Labour man why these repeated attacks were being made on the jury. I said that I could not understand it. The noble and learned Lord, Lord Ackner, has said that it is all Treasury-driven, but I do not believe that that is true. The Labour man said that it was about control—that juries are beyond the control of government in a way that even judges sometimes are not.
Juries keep the law honest and comprehensible because working with juries—as those of us who work with juries know—puts an obligation on all of us to explain the law and the rules and to apply the standards of the public to what is right and wrong. The jury stops the law becoming opaque. It stops the law becoming closed and sometimes even dishonest.
In the rush to modernisation, we are sometimes unaware of consequences which may not have been immediately foreseeable. The jury, in fact, protects the judiciary. It is what maintains the esteem of the British judiciary. When I travel for the British Council, one comment is always made in relation to Britain and British institutions—that whatever small faults it may have, the British judiciary is globally regarded as incorruptible. That reputation is justified and is due to no small extent to the fact that we have a jury system.
There is no point in bribing or bullying judges as to the verdict because the verdict is not theirs. It is also almost impossible to bribe or bully the whole of a jury. To get a corrupt verdict one would have to get at least 10 jury members on one's side. To get a spoiled verdict, one would need the support of at least seven jury members. Although some serious criminals will inevitably attempt to bribe or intimidate, it happens on remarkably few occasions. However, it will happen more frequently if we have trial by judge alone. A magistrate in France recently publicly stated that there had been threats to her life and that she had been advised by French intelligence not to stand at her own apartment windows for fear of being shot. She had been investigating a fraud trial as an investigative magistrate.
Trial by a single judge catapults judges into a position which makes them very vulnerable. A jury tries a case, delivers its verdict and drifts back to the anonymity of daily life. However, a single judge trying a case will enjoy no such anonymity. Everything about that judge will come under scrutiny, not just from the press but also from the lawyers conducting the cases. Challenges will be made to judges. There will be insistence on disclosure of their every financial interest, and indeed those of their spouses.
Like it or not, judges also acquire reputations—for being prosecution-minded; most often, one would hope, for being even-handed; or, sometimes, even for being soft. Juries are exempt from accusations of being parti pris because they do not have reputations in that way. Having a judge with a reputation decide on a verdict is likely to inflame speculation and allegations of cases being deliberately placed before certain judges. All the public perceptions of the judiciary of which the noble and learned Lord, Lord Ackner, spoke would be affected. In some high-profile cases, there may be a public perception that the judge is a man brought in to do a job for the state. The undermining of confidence in the judicial system could be very serious. I suspect that the Government have not thought through the potential consequences.
We have an adversarial system. One cannot cobble together a quasi-inquisitorial system simply by removing the jury. I know there are those in government and among those who lobby government who, looking for greener grass, really believe that an inquisitorial system would answer their hopes. However, the checks and balances that are necessary within any system would not exist. The clearly defined role of people such as the juge d'instruction would be absent. So I am afraid that simply removing the jury will not accomplish that goal.
Clause 41, which suggests that the accused should be given the choice of whether to have a judge or a jury trial, is very seductive. That word "choice" is, of course, very much the flavour of our time. However, it is the defendants in those very cases that attract public notoriety—such as sexual cases, where there is a strong, proper and necessary expectation of a jury trial by the public—who are most likely to apply for trial by judge alone. What you may then get is judge shopping and people saying at the door of the court, "Actually, forget the jury. Now that I am in front of a particular judge, I think I shall decide on judge trial instead". When that starts to occur it will discredit our system.
I turn to fraud trials. That is not how they are referred to in the Bill which refers to long and complex cases. I am concerned that the matter will not confine itself just to fraud trials but will affect many other kinds of trial and that bureaucratic creep will start to occur. I am afraid that we know who the bureaucratic creep is. Money laundering cases connected with drugs, money laundering cases connected with terrorism and all manner of cases which the public would expect to see tried by a jury will be tried by a judge alone.
As regards the whole issue of fraud there is something very distasteful about creating a system in which white collared professionals are tried by other white collared professionals. How will ordinary citizens, excluded from the process, feel about acquittals in those circumstances? We were told that the reason for reducing jury trial for fraud was that mere mortals could not get to grips with the complexity of such cases, despite the fact that most practitioners, whether prosecuting or defending, take a very different view. It is certainly not the case that fraudsters are getting away scot free. The conviction rate is 86 per cent.
The argument changed in the other place in the final debate on the matter when it was going to a Vote. Suddenly the Secretary of State said, "No, the issue is not about complexity and a jury not understanding the matter. We are concerned that we are not getting the proper mix and a fair reflection of society in juries who attend long trials because most people are too busy to do so. Juries in such trials will mainly be composed of people who are available for long trials. Therefore, you do not get the proper mix". But the truth is that you get very representative juries nowadays. More and more people are retiring early who have a huge wealth of experience in many fields. You do get the disabled person, the unemployed person and the mother of young children on juries. You get an incredible reflection of society as a whole.
But the interesting thing is that the argument about complexity and juries not being up to the task changed as it did not fit comfortably with the Government's argument that juries were smart enough to be able to deal with hearsay and previous convictions and that they were able to sort the wheat from the chaff. If the Government put forward that argument, they must show at least some degree of integrity as regards fraud trials. Suddenly we have a change of argument at a very late stage. The argument now is about how representative the jury is in a long fraud trial. But I ask what is representative about one white male judge, as most judges are who try these cases?
I turn from the issue of fraud to the issue of public interest immunity, which reveals a very important reason why the measure does not work. Increasingly, judges hear public interest immunity applications by the prosecution to withhold information from the defence. I wish to make clear to those who are not lawyers that this is about the prosecution saying to the judge in the absence of the defence, "Certain information came our way as a result of intelligence. An informant gave us that information. We do not want to have to disclose that material to the defence because of the possible repercussions". The defence obligation to disclose everything is limited when it may affect the good running of our investigatory system. The judge hears that application in the absence of the defence and he then says, "I am not going to make an order that this is disclosed to the defence. I do not think that is necessary but at some later stage I may, as the trial develops, have to change my mind". So what does one do in a situation where a judge is sitting on his own with material and facts at his disposal which he is supposed to then put out of his mind? Who will believe that he is capable of putting such factual material out of his mind when he reaches a verdict on the facts in a case?
I am afraid that not only is the measure's manifest unfairness clear to anyone but it is also contrary to the European Convention on Human Rights. There is now a suggestion of having a parallel judge who would solve the problem as he would deal with issues of public interest immunity. But how can that help when the trial judge is supposed to keep the issue under review as the trial unfolds?
Finally, I wish to deal with the issue of jury tampering. Of course there is always a risk that professional criminals might interfere with a jury. I was involved in one such case where that suggestion was made against one of the accused. All the members of the jury had to be protected and any unfairness was visited upon the other defendants who were not involved in any imputation of having interfered with the jury. When I hear it said that miscarriages of justice might follow from that, I should say that the jury in that case was perfectly capable of making distinctions between those who were guilty and those who were innocent.
Apparently, a jury might be removed where there is a real and present danger that tampering will take place. Of course, determining whether there is a real and present danger relies on intelligence. It is a little like the imminent threat of weapons of mass destruction and involves the same problems. It will be founded on the opinion of investigating officers who may see in it an advantage to the prosecution in making a claim that there is a real and present danger that a jury will be interfered with.
I have spent the best part of my professional life involved in terrorism cases. One managed to conduct all those cases with a jury and one was well served by having juries in such highly inflammatory cases. Of course it is a price that has to be paid if we believe in jury trial, but the cases where jury tampering occurs are statistically very small. The occasional cost of a retrial or of jury protection is a legitimate price to pay for the wonder that is the jury.
We are on a slippery slope here. I alert the Committee to the fact that it is a slippery slope. It is like a virus that will spread. Whatever the Government tell us about confining this part of the Bill to very few cases, we have to ask whether we trust the Government to do just that. I am afraid that trust is a precious commodity and at the moment there is perhaps less of it around than there was.
When the Government tell us that they have no designs on the jury system as a whole, we have to remember that the Government have previous convictions. As there are no rules to prevent your using those previous convictions in reaching your verdict on this part of the Bill, I urge Members of the Committee to do so. I say that previous convictions should not be taken into account but sometimes it might make a difference if we know that in the past we were urged to do away with jury trial in another area. Is this the beginning, yet again, of an assault that will lead to yet fewer and fewer jury trials? I am afraid that my suspicion is that that is what we are looking at.
The noble Baroness is fully justified, if I may say so, in not going the whole way with her own party on every occasion. Although I shall vote against Clauses 41 and 49 because they go too far in getting rid of jury trials, I feel bound to point out that there is an exception to nearly every good rule. I wish to draw the Committee's attention to an experience which I had which I believe illustrates that.
When I appeared for the defence in a fraud case of great complexity and with a lot of money involved before a jury, it lasted five weeks. It was very complicated. Most of the jury were not very well educated and found it impossible to follow the evidence and the arguments. Indeed, from time to time some of them fell asleep. When the five weeks were coming to an end, the High Court judge decided that he had to direct the jury, by implication, and that is what he did. He went a long way towards doing so.
Therefore, I favour giving power to the court to do without a jury if that is what the defence also wants and if the prosecution agrees. If the clauses are voted down in Committee, I shall come back with a narrow amendment on Report that would enable the court to try any lengthy, complicated fraud case without a jury if that is proposed on behalf of the accused and agreed to by the prosecution.
I have not spoken in the debate previously and I do so with great hesitation and humility, because it is a very long time since I had anything to do with the law. For the reasons which have been advanced by my noble friend Lord Thomas of Gresford and by the noble Baroness, Lady Kennedy, I do not accept the arguments in favour of Clauses 43 and 45 and I do not support all parts of Part 7. In general, I accept the arguments for juries in serious criminal cases, but I am sorry to say to my noble friends, with whom I part company on this matter, that I am attracted by the arguments in favour of Clause 41 and by the amendment proposed by my noble friend Lord Phillips to Clause 42.
I shall make a few brief, general remarks. I worked at the Home Office a long time ago. We found that the legal profession tends to oppose many reforms. It is a very conservative profession. The first question that arose when I arrived at the Home Office was whether we should have majority verdicts in jury cases. There was unanimous opposition from the Bar. The sky would fall if there were majority verdicts. The Criminal Bar Association was passionately opposed. It made official representations to the Home Office at that stage and argued that majority verdicts would be a disastrous development for criminal justice.
Leaving that aside, I also remember that earlier, during the time when a certain number of cases were subject to jury trials in civil proceedings, there was again strong opposition to any curtailment of jury trials in civil proceedings. I remember the late Lord Hailsham, when he was still Quintin Hogg, saying that there was a simple rule at the Bar. If one had a good case, one went for a judge; if one had a bad one, one went for a jury. In the case of Clause 41, it would be wrong to say that a member who thinks that he has a good case for the defence, and thinks that there may be prejudices against him if he goes for a jury trial, should not be allowed to opt for trial by judge. For once, I am not convinced by the arguments of my noble friend Lord Thomas of Gresford. He cited a number of examples—they seemed to be examples—where the defendant thought that there would be great prejudice against him. Therefore, in the case of Clause 41, there are reasons why it should be legitimate for a defendant to opt for trial with a judge alone.
I support the powerful speech of the noble Lord, Lord Hunt of Wirral, and those who have spoken after him to the same effect. I confine myself simply to Clause 42, which was another clause that was barely considered in the House of Commons.
There only ever was one plausible argument in favour of the principles behind Clause 42. That was that long fraud cases are too difficult and complicated for juries to understand, and that they have therefore acquitted in cases where they should have convicted. I said that was a plausible argument; it never was the case, as has now been conceded, I understand, by the Lord Chancellor in his speech at Second Reading. He specifically disclaimed any reliance on the argument that juries are not competent to decide those cases. One will find that in Hansard of 16th June, at col. 560. The noble Baroness, Lady Kennedy of The Shaws, made the powerful point that the Government's position has changed during the months.
I cannot speak from personal experience of ever having tried a long fraud case, but perhaps I may speak from the experience of others. Of course, juries do not always take in every detail of a long case—one would not expect them to do so—but they are well capable of grasping the essentials. In most cases, as noble Lords will hear again and again this afternoon if they have not done so already, those long cases boil down to one essential point—does the jury believe the defendant or does it not? The essence of all such long cases is ultimately a simple question of dishonesty. Anybody with experience of those cases will confirm that juries have a very good nose for dishonesty.
Moreover, it is simply not the case that juries are failing to convict in cases where they should convict. A figure was given by the noble Lord, Lord Thomas of Gresford, today. I thought that the figure that was given to us last time for long fraud cases was 92 per cent, not 86 per cent. That figure seems suspiciously high. I cannot believe that it is as high as that, but in any event, nobody is now suggesting that the rate of conviction in those cases is too low.
If fraud cases are not too difficult for juries to decide, what else is said? It is said, simply, that they are burdensome. Well, of course, they are. They are burdensome for judges, too. The remedy surely lies in the hands of the judges themselves. I return to a point that was very well made by the noble Lord, Lord Brennan, at Second Reading. How are the judges in these cases to try and limit the issues and simplify them for the purposes of making them easily digestible by juries? I remember a very wise and experienced criminal judge—and he will be remembered also by all the lawyers in the Chamber—Lord Justice Farquharson. He showed the way. At the start of any long fraud case, he would fix leading counsel for the prosecution with a beady eye. He would see an indictment with 10 or 12 counts, or however many it might be, and he would say to leading counsel, "Now, which are your four best points?". From then on, the trial would proceed on the basis of those four counts. All the rest would be swept aside. Judges ought to do something similar to that in order to make such cases—not easier to understand, because that point is no longer relied on—but less burdensome.
If fraud trials are made shorter and less burdensome, as I believe they can be, and if they are not too complicated for juries to understand, as is now conceded on the Government Benches, why do we need to change the law at all? The answer is that we do not. So long as juries can be found to try those cases—and they can be found—surely a defendant is entitled to be tried in our traditional way, by a traditional jury. If we allow Clause 42 to take its place on the statute book, it will mark the beginning of a very slippery slope. I thought that those were my words until a speaker earlier today pointed out that those had been the words used by the shadow Home Secretary in the House of Commons. I am glad to see my not very original words have that additional support.
I do not know what the fate of Clause 41 will be. I hope that it fails. But if it does not, I shall want to vote against Clause 42, and I hope that those on all sides of the House today who share my feeling for justice will do the same.
I regret that on this matter I must differ from some respected, eminent and eloquent colleagues of Bench and Bar. It may well be that I swim against the tide of sentiment, but is it not indeed largely a tide of sentiment and myth? The Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the European Convention on Human Rights do not speak of a right to trial by jury. What they all require is an independent and impartial tribunal.
The so-called "right to a jury" is cherished in images of the English legal system and derivative systems, as the debate this afternoon has demonstrated. It is dear to the hearts of many lawyers. But it cannot be put higher than that. It is not fundamental. Such has been the verdict of well-informed reviews; for example, the Roskill report of 1986, the Narey report of 1997 and the Auld report of 2001. Auld recorded that only about 1 per cent of criminal cases in England and Wales are tried by jury. Percentages of that order may be seen as suggesting that the emotions raised by this subject are out of all proportion.
The English system of criminal procedure has undergone seismic changes over the centuries—some relating directly to the jury; others relating to the procedure before the jury. Once, jurors were men of the locality, summoned because they knew the facts of the case and could explain them to the itinerant justices. As late as the end of the 17th century, it was established doctrine that if the jurors knew something about the facts, they should act on that knowledge where it contradicted the evidence of witnesses. Now, however, knowledge of the facts of a case would be regarded as making men and women unsuitable to act as jurors in it.
Until the mid-19th century, a person accused of felony was not even allowed to address the jury through counsel. It was not until the later years of that century that the accused was given the right to give evidence himself before the jury. Again, in the 1870s, a category of offences triable either way—"hybrid offences"—was introduced, irrespective of the defendant's consent. Majority verdicts were introduced in 1967.
In the light of history, it cannot be suggested that some modification of the law of jury trial in this country would transgress any fundamental principle.
Clause 41 gives the accused, within limitations, a right to trial by judge alone. A broadly similar provision has been in force in New Zealand for some 20 years or more—so, too, in Canada and some Australian states. In New Zealand, it does not apply if, having regard to the interests of justice, the judge considers that the accused should be tried with a jury. One can compare the exceptional circumstances provisions in the Bill in Clause 41(6), (7) and (8).
The other New Zealand limitation is that the accused's right to a judge alone does not apply when the maximum penalty is imprisonment for life or 14 years or more—for example, in cases of murder, manslaughter, aggravated robbery and serious drug offences.
The New Zealand provision has worked successfully. It has been invoked by accused persons typically in cases of alleged white-collar crime—a field in which it had been found on appeal that an over-emotional presentation of the prosecution could produce a verdict unfairly prejudicial to the defendant. Thus, in a case of alleged fraud, a parade in the witness box of prosecution witnesses being widows who have lost not only their husbands but their money can be a dangerous precedent in a trial by jury.
Clause 42 of the present Bill goes further than the New Zealand provision in enabling a trial by judge alone against the wishes of the accused in certain complex or lengthy cases—that is, financial or commercial cases or those relating to property—where, in the words of the Bill, there would be,
"an excessive burden upon the life of a typical juror".
As it can operate against the wishes of the accused, this provision is no doubt more open to argument. But, unless one takes the untenable position that only a jury can be an independent and impartial tribunal, it cannot be stigmatised as contrary to any basic human right. Media might sometimes misguidedly criticise either an acquittal or a conviction by a judge trying a case alone, but the tendencies to which sections of the media may succumb should not be allowed to deter Parliament from providing for a mode of trial which, for this kind of subject matter, is the most reliable, impartial and efficient available.
As for detail, the only amendment proposed is that tabled by the noble Lord, Lord Phillips of Sudbury. That appears to provide for a special jury of six in Clause 42 cases. All special juries were finally abolished in England and Wales in 1971. In the words of Halsbury's Laws of England:
"A special jury was a jury consisting of persons who . . . were of a certain station of society, such as esquires, bankers, merchants, etc".
Perhaps that description is enough to suggest that restoration of the special jury in some form would not be acceptable today. On the other hand, no judge worth his or her salt flinches from the responsibility of trying a criminal case alone. International experience confirms as much and shows that such trials can be entirely satisfactory. However, in the words of the Bill, some cases can place an excessive burden on the life of a typical juror.
Before my noble and learned friend sits down, I wonder whether he has seen an article in the New Law Journal setting out a summary of the report of the Fraud Advisory Panel working party, which states:
"Experience in some of the Commonwealth jurisdictions which allow defendants to elect to be tried by a judge alone (for example, the state of New South Wales in Australia and New Zealand) suggests that the judges there have come to think that public confidence in the criminal justice system may be eroded if controversial cases are routinely tried this way. There is the added danger—set out in the consultation document—that confidence might be further eroded by a system which encourages the presentation of the case in a specialised way which may preclude its comprehension by the wider public".
I thank the noble and learned Lord for his reference to that paper. Indeed, I had not seen it, but speaking from experience I fundamentally disagree with it.
My own experience as a judge working in this field in New Zealand was in an appellate capacity where quite frequently in my court over the years we heard appeals from convictions entered by judges who had tried a case alone on the application of the accused. I fundamentally disagree with any suggestion that a sense was created of untrustworthiness in the legal system or anything of that kind. To my knowledge, the system worked perfectly satisfactorily. On the other hand, we had previously found that some convictions by juries were vulnerable because the juries appeared to have been swayed by emotions induced by the manner of the prosecution.
I had not intended to say very much today, but I have been provoked by considering Clause 42 in relation to espionage. There has been much discussion today about fraud and other trials of that kind. Let us imagine that an espionage case is brought in this country. Very few such cases have been other than pleas of guilty in our history. However, I happen to have been involved in one particular case which was tried by jury. If Clause 42 became law, undoubtedly there would be an immediate application by the Crown in such a case that the matter should be tried by a judge alone; that it would be far too complicated and difficult for a jury to try.
It so happens that in what became known as the Cyprus spy trial, a trial which lasted over six months at the Old Bailey, I was one of the defending counsel. Young servicemen were charged with espionage. It involved the safety of the country and NATO and the whole trial was held in camera. Because of the nature of the charges, the jury panel was positively vetted and was probably the most intelligent jury I have ever seen in my experience at the Bar. Jury members were selected, and so forth. Objections were raised to one or two. There was no reporting of the case, and we all had to take the oath not to disclose anything that went on in the trial.
However, it is interesting that at the end of that trial the most intelligent jury which I have ever seen took over a week to consider its verdicts. Six young servicemen were separately charged with espionage. The jury found them not guilty on each charge. Looking back, it is my belief that the particular judge who tried that case might well, although I do not know, have reached the same conclusion.
When one considers what the sentences might have been, it was of vital importance that the case was tried by a jury. That was also very important from the point of view of this country. I make no secret of the fact that I have always regarded jury trial as one of the great bulwarks of freedom in this country. I do not hesitate from my experience in any way to mitigate that view.
However, as there has been no mention of espionage, and as I happen to have been involved in that case, it is as well that I should bring it to the attention of the Committee. I do not know whether anyone here would suggest that the government of the day with that clause would have tried to ensure that the trial was by judge alone rather than by judge and jury. I can think of many judges who might have reached exactly the same verdict as the jury. I believe that the learned judge who tried the case might well have done. However, I can think of other judges who I know quite well who might have taken a very different view. That is why, from my own experience of that particular case, trial by jury is essential. In that kind of case there should not be an opportunity for the establishment to apply under Clause 42.
I rise to oppose my noble friend. I do not do that easily or often. However, on this occasion I think that the case that has been made by a number of Members of the Committee is almost irrefutable. When one considers the views of organisations such as Justice, the Bar Council and the Law Society, none of which are averse to changes in the law, such views are persuasive. They are wholly against the ideas which have been advanced by the Government, particularly as regards the three items mentioned by the noble Lord, Lord Hunt.
My view is that the burden of proof rests very heavily upon those who want to change the law. As far as I can make out, what is being advanced by those who argue for these provisions is based on belief that in certain cases it is safe to dispense with juries. But, frankly, belief is insufficient. The burden of proving that the system of justice can be improved falls on those who put forward these solutions. Therefore, I think that belief is insufficient. We are not talking about 30 or 40 years ago, we are talking about the present situation.
None of the organisations I have mentioned can be accused in any way of being conservative—with a small "c". In their time, those organisations have put forward vital, important and, in my view, essential provisions for strengthening the law. It is true that certain police organisations have come out in favour of the change which is being advocated, but they are all concerned with the prosecution of offences. Therefore, not one organisation of repute, which is concerned both with prosecution and defence issues, supports these proposals.
My view is based upon some 50 years of practice as a solicitor. In the debate so far, only the noble Lord, Lord Hunt of Wirral, and myself represent that particular profession. In that time, I have never come across a situation in which a jury was totally misled or totally foundered upon the evidence that was put forward by the prosecution. Members of the jury come forward with their own ideas. As has rightly been said, it is impertinent to believe that they follow each nuance that is advanced: of course they do not; but do the lawyers?
In my view the jury system, even in complex cases, answers the bill. There are certain instances in which there should be more co-operation between the prosecution and the defence. I also believe—and I speak here from experience—that where there is such co-operation, the cause of justice is improved immeasurably.
I turn to jury tampering. As I said at Second Reading, when I was defending I came across one particular incident in which the argument of jury tampering was advanced. It resulted in a total acquittal of the defendants. Of course they had a brilliant advocate at the time. That apart, the case which was put forward was vitally flawed. I do not think that we should consider a right to trial by jury being abrogated because of something that may happen in the future. It may well be that there is some evidence of jury tampering, but surely there are other means of protecting juries that could be tried.
On what evidence is the removal of juries wholly justified? I think it is slender. I return to the point I made right at the beginning. I do not think that the evidence should be slender: it should be firm and irrefutable; and that is not the case.
Perhaps I may be allowed a short speech, an anecdote and an observation. The anecdote is forever written on my heart. I mean that without being emotional. It occurred many years ago when I was a young advocate appearing at Bow Street on a very unimportant case. The chief magistrate was there looking after his court.
While I was waiting for my case to come on, I witnessed a tramp—that is what he looked like. Incidentally, this was in the days before legal aid. He was accused of having stolen a wallet in St Martin's Lane by the trick of sidling up to someone who was on the pavement and asking him the time. The gentleman supplied the information. He then found his wallet was missing and the person who had asked him for the time was speeding up his walk along St Martin's Lane.
The magistrate had no doubt whatever in discarding the story that the tramp—not very vocally—told. It was that he had genuinely asked the time and wanted to know it because he had an appointment very near St Martin's Lane. The magistrate said: "There's too much of this going on. It's always the same story—someone asking the time. You're guilty and I want you please to go below while I have a report".
I then rose to speak on my unimportant case. I was only a little way into it when the clerk dropped me a note. The note said:
"Do you mind being interrupted? Something urgent has occurred".
I said that I did not mind in the slightest. A man hastily came into the court and addressed the magistrate. He said: "I'm so sorry, sir, but after the court hearing I went home. I wanted to take a suit to the cleaners. I found the wallet in that suit". The magistrate apologised. It was a story of "case hardened", which I believe was the phrase used by the noble and learned Lord, Lord Ackner.
One of the reasons why I shall go into a certain Lobby if there is a Division is because I cannot forget that case. I am quite sure that a non-case-hardened jury would not have found that man guilty. Certainly, they would not have done so after a plea from an advocate, which was not heard in that court on that day, indicating that the onus is upon the prosecution and not upon the defendant.
I now make my short observation. I say with certainty that if any Member of your Lordships' House was charged with any offence covered by this clause or Clause 42, there is not a lawyer available, either here or elsewhere, who, upon being asked to advise on whether that Member should go before a judge or be tried by a jury, would not say to him that if he valued his reputation and it meant so much to him, that he should choose to go before a jury.
Should any Member of this House, if what I say be true, vote otherwise than the way I shall?
This debate has been largely dominated by the lawyers among us. Although I am in a formal sense a lawyer, having qualified and briefly practised at the Bar, I do not claim any expertise in the field of criminal law. Indeed, in the last case in which I was involved, I unsuccessfully defended the distinguished historian CV Wedgwood from a charge of driving without due care and attention. That certainly cannot be said to qualify me to speak as a lawyer but, nonetheless, I speak in support of what the noble Lord, Lord Hunt, said about there being cause for pause.
It is not the first time that we in Parliament have had before us proposals to do away with jury trial in long and complex cases. I remember the debate on the Roskill report on serious fraud cases. In another place, of 12 Back-Bench Members who spoke, 11 spoke against the proposal to accept the Roskill commission's recommendation that serious fraud cases should be tried by a judge and two assessors. Periodically, Home Office Ministers return to that proposition but, once again, it is right that the Minister should pause.
I do not apply the arguments that have been so eloquently advanced in this debate, especially by the noble Baroness, Lady Kennedy of The Shaws, about whether justice is more or less likely to be done with or without a jury trial in the circumstances described in Clause 42. I found what she had to say on the subject enormously convincing.
What I found surprising is that the argument about justice being done is not what appears to lie behind Clause 42. It is not about the greater or lesser likelihood of convictions being wrongly obtained—innocent people facing conviction or people who are guilty being found innocent. Strangely, if the Bill's language is to be believed, it is about the burden to be placed on a juror faced with such a case. Non-lawyers have every bit as much right to speak about that justification as anyone else. Few responsibilities or rights of citizenship are so widely understood and accepted as is the duty to serve on the jury. The right to vote in an election is perhaps the other attribute of citizenship that the wider public understands.
I am not among those who would argue that the only system of fair and just tribunal that falls under the scope of the rubric of the European convention is the jury trial. How could I? I am a Scot and it is rather less frequently used there. Nor am I inclined to invoke arguments that any criminal justice system is perfect—certainly none that has passed through as many transitions as has ours since jury trials were invented.
Indeed, I went so far as to write the libretto of an opera about a Scottish jury trial in which Thomas Muir, a great radical reformer, was wrongly convicted of the Scottish equivalent of sedition. Of the 15 jurors, 11 of them were paid servants of the Crown. But we do not live in those times and the public does not have that sort of attitude today to jury trials.
I think that people accept that it is an obligation of citizenship which, if they are invited to discharge it, may be burdensome but not so burdensome that they should not assume it with pride and willingness. As a Member of another place, I of course was never called on to do that, but many of my family have been, to their great inconvenience. I have never heard serious suggestions that that was an obligation that they would not be prepared to meet.
If there are better arguments for Clause 42, I hope that the Minister will deploy them in answering the debate. The reasons in the Bill are wholly inadequate to cause us to change the law in an area in which, it must be said, the reputation of the law may be fragile, to the detriment of the fabric of our society.
I shall probably be drummed out of the profession when I sit down, but that is a risk I must take. Of course I accept that the public has great confidence in jury trials, but I am not sure that it follows from that that they would have no confidence in a trial by a judge alone—or, as I should prefer, by a judge sitting with two magistrates, or something of that order. That does not follow at all.
We ought also to consider whether the public's confidence is justified. My personal experience suggests that it is, to the extent that it is unlike a jury wrongly to convict. From my experience—and I have had more criminal experience than I am sometimes given credit for—I led two cases in which I was virtually certain that the jury would convict and was equally certain that it ought not to convict. I broke some of the rules and instructed the members of the jury that, in all the circumstances, it would be more sensible if they returned a verdict of not guilty. With slightly surprised expressions on their faces, they did so.
However, I have come across a number of cases in which—perhaps I am narrow-minded as a judge—I had not the slightest doubt that the jury was wrongly acquitting. Although that is not as great a miscarriage of justice as is the other way round, it is a miscarriage of justice.
Against that background, I do not understand why the defendant should not have a choice. We have had the benefit of the long experience of the noble and learned Lord, Lord Cooke, of what happens in New Zealand. The system appears to work well there and I cannot understand why the whole edifice of justice will crumble if people are allowed to opt out of jury trial.
The only person who has advanced a tenable argument in favour of that view is the distinguished legal editor of the Daily Telegraph, Joshua Rozenberg. In an article a couple of months ago, he said that the trouble with Clause 41 was that if those who were innocent chose to be tried by a judge—he said that they might well do so, because it is a much more efficient form of trial and the chances of achieving justice if they were innocent were much greater—we should soon slide into a situation where anyone who failed to opt for judge-alone trial would be regarded as halfway to having admitted his guilt. I do not subscribe to that view. However, it at least suggests that he, with his experience and of course being much more in touch with the public and the judges than I am in that I have retired, thought that the public might take the view that if they were innocent there was a great deal to be said for being tried by a judge alone.
I totally reject the idea that the jury is the great bulwark of liberty against the establishment. I tried to think of cases in which it might be said that that was so, and could only think of two. I mentioned them at Second Reading. One was the attack by some anti-nuclear protesters on a submarine in the Clyde. They did a certain amount of damage and were triumphantly acquitted, although it is not clear on what legal basis they possibly could have been. The other was the great case of GM crops, where again there was a totally perverse finding of not guilty. But the establishment was not shaken and there has been no change in the law, so I do not think that there is much to be said for that.
I shall move on to Clause 42. It is said that it is the pride and duty of every citizen—I would certainly have been interested to do it, but that is a different matter—to sit on a jury. Duty, yes, but I query pride. Certainly on a long trial, I would very much query that. I was taught as a judge that one had to be very careful, when one sent a jury out or when it was out considering its verdict, not to be obstinate about considering the possibility that it might have to be discharged. If one keeps sending a jury out and saying, "You must try, you must try", one risks a situation in which those in the minority on the jury say, "All right, I give in. We must get home. We must reach finality".
Judges have been taught over the years to avoid that, but that is the situation that one will get into if one has a very long fraud trial. It is said that juries are wholly suitable for such trials because the conviction rate is 86 per cent. That figure frightens me. It is so out of line with the rate of conviction for non-fraud cases that I wonder whether the serious fraud squad is right in claiming—I do not doubt that it does—that it picks all the winners, and whether the jury simply does not understand and comes to the conclusion in some cases that people would not have been charged if they had not been guilty.
It is then said that one can simplify a fraud case. To some extent one can, no doubt, but to some extent one risks arriving at a situation where one is trying something different from the real offence. As a follow-up to that, it is said that every fraud case comes down in the last resort to a question of honesty or dishonesty, and that the man in the street is a wonderful judge of what is honest or dishonest. I could not disagree more. One has only to consider the difference between tax avoidance and tax evasion to see that very few juries would be capable of distinguishing one from the other. Provided that there was a profit in it and that it was something that they had not thought of, the chances are that they would regard it as dishonest.
On the subject of jury tampering, until today I was of the opinion that it was very regrettable that the police had to spend a lot of time, money and resources on protecting juries. However, I have certainly been persuaded by the letter in The Times today that it is not entirely a question of protecting juries, because bribery or attempted bribery cannot be protected against by the physical presence of policemen. Where that occurs and someone finds, as was described in the letter, a note of unknown denomination under his windscreen wipers with a clear indication that it is an advance payment, no amount of ordinary police surveillance would deal with that.
I should come back to the point about judges being protected from media scrutiny if they have juries. I entirely agree with the noble and learned Lord, Lord Cooke, that judges have to put up with that. Physical attacks are slightly different, but they have to put up with them, too. I was interested in the case of the French magistrate who apparently was told by her minders that she must watch out for rooftop snipers. Members of the Committee may think that fanciful, but I lived in the Temple when I was trying IRA cases, and my minders said, "You pull the curtains before you put the lights on, because of the rooftops nearby". It happens to us all, and it is just one of those things that goes with the territory.
I will support all three clauses, but I hope that consideration will perhaps be given to substituting, for a judge alone, a judge with two magistrates. I used to sit in the national industrial relations court with two full members of the court, and found that a great assistance. In the days when there were quarter sessions, I sat as the deputy chairman of Hampshire quarter sessions with magistrates, and again found that of assistance. I would not mind in the least having to give reasons, but I would like someone to discuss the matter with before I decided and gave my reasons.
I understood the noble and learned Lord to say that he did not believe that a jury was a bulwark against the establishment. Let us assume that that is correct. Is it not also correct that the perception is very clear by the people of this country that if a judge makes the judgment, that is a judgment by the establishment, whereas if a judgment is made by a jury, it is not one made by the establishment?
As a non-lawyer, perhaps the first to participate, I want to say very briefly why I am afraid that I cannot support the Government in the Lobby. Speaking as a non-lawyer seems peculiarly appropriate, because the law belongs to everyone. The matter is too serious to be left to lawyers, and my case is relevant because the point of the jury system is that jurors are not lawyers. They have no legal background or axes to grind in terms of their expertise.
As a historian, I totally disagree with the noble and learned Lord who has just spoken, who says that he finds it impossible or very difficult in our history to find examples of the jury acting as the bulwark of liberty. I find that a puzzling remark. The concept is rooted in our traditions. It is in and precedes the Magna Carta. I wonder whether it is even part of the Government's disrespect for the Middle Ages that they should offer the proposal.
I have two very brief remarks; we have had a long debate. I find very strange the idea in Clause 42 that jurors somehow might be thought too inadequate mentally or in terms of knowledge to understand the details of a case. As professional people, we have, as they say, a mission to explain. I have spent my entire life as a university teacher. One distinguishes between the accumulation and assessment of evidence and the reaching of a conclusion based on facts. One tries to do so not by assuming that one's pupils are foolish or stupid, but that they are intelligent citizens who can get to grips with it. So it should be and is in the case of a jury. A judge is there to direct a jury, and to explain technical details to it. As we have heard, verdicts are reached. It is important, not merely that the jury should be thought to understand, but that the public should be thought to understand. These are not arcane matters for an enclosed profession; they are for society as a whole. It is extremely important that Clause 42, which appears to contradict that proposition, should not be supported.
Further points could be made about the openness and the independence that the jury system enshrines. Those qualities would be compromised by judges deciding in secret conclave whether cases should be conducted with a jury or not.
I wish to follow up the observations of the noble Lord, Lord Maclennan, with which I very much agreed, that the issue relates to citizenship. Citizenship is a concept with which people in the United Kingdom have difficulty. Not long ago, we had great difficulty getting the word inserted in the Communications Bill. Citizenship relates to the doctrine of liberty and the doctrine of rights. That would be compromised, perhaps, by having two kinds of cases—those conducted with a jury and those conducted before a judge. Even more importantly, citizenship is about a doctrine of solidarity. It is about society acting together, and, in this case, publicly reaching its own idea of what are norms and values embodied in particular kinds of behaviour that one can accept, behaviour that one cannot accept and behaviour so unacceptable as to be deemed a crime. It is extremely important that that be maintained.
The jury system has been with us for centuries. It has survived King John at Runnymede and the rigours of the Second World War. I recall a distinguished judge and compatriot, Lord Atkin, who vigorously defended in wartime the maintenance of the full panoply of habeas corpus, our civil liberties and our judicial system. That is why we were fighting. The war was about defending our liberties. I recall as a historian reading the material produced by the Army Bureau of Current Affairs during the Second World War. It enshrined trial by jury as one of the supreme values that justified what the war was about.
I hope that the Government think again. I approve their other moves towards constitutional modernisation. I do not regard this proposal as modernisation. I hope very much that it will be rejected.
The noble and learned Lord, Lord Donaldson of Lymington, tempts me to my feet; I had not intended to speak. I shall not follow the noble Lord, Lord Morgan, into the territory of Magna Carta, save to say that he is quite right. I am more concerned with the mundane matters of theft and minor felony. The great age of the jury as the bastion of liberty is in the first great age of the mandatory sentence, when one suffered the death penalty for any crime worth more than one shilling. Now we are entering what looks like the second age of the mandatory sentence. That case is beginning to acquire, again, a special merit.
It was my privilege this year to give the annual lecture at the Shakespeare birthday celebrations. The play was "Measure for Measure" and the text, of course, was mercy. It became clear to me as I worked on it that mercy, in that context, means an attention to the special circumstances of that case which distinguishes it from other cases in that mandatory category. It is necessary to look at whether there is genuine contrition, whether the crime was done professionally for profit, and whether there are mitigating circumstances that move to leniency. Those three urges to look at the evidence are a vital counterbalance to the mandatory sentence.
Juries regularly undervalued stolen goods in order to avoid a conviction of felony. In some cases, they reached special verdicts, which, until you look at the circumstances, are quite surprising. On one occasion, a man came home from work and found someone else in the act of raping his wife. He banged the man on the back of the head, which was the only accessible portion of that gentleman, and the man died. The jury reached a verdict that John Lellowe did it, the evidence having shown the presence of no such person anywhere near the scene. If we must have a mandatory sentence, we must have mercy, and the jury is its appropriate agent.
As the noble and learned Lord, Lord Bingham of Cornhill, said at the Second Reading of the Crime (Sentences) Bill in 1996, if you attempt to exclude discretion in one place, it bursts out in another. What better vehicle for discretion than the jury, which has studied all the facts of the case, unlike anybody who has merely read the transcript? The noble and learned Lord would do well to read some of the work of 17th century criminal historians, which is of very high quality.
I am persuaded by the noble Earl that I overstated my case. Without going back to further reading, there is ample material in relation to the life imprisonment mandatory sentence, which juries disregarded bringing verdicts of diminished responsibility. I had overlooked that. Where there is a mandatory sentence, I agree that the jury is invaluable. But we ought not to have mandatory sentences.
I enter with diffidence these arcane discussions merely to try to draw one perception from Northern Ireland and, secondly, to offer respectful comment on the speech of the noble and learned Lord, Lord Cooke.
In Northern Ireland for the past 30 years, during what is still called the emergency, certain defendants charged with serious offences have, for very necessary and proper reasons, been denied a jury trial. The corollary of that has been that judges, whether at the High Court or at the county court sitting as High Court judges, have had to act as judges of verdict and of law. There cannot be the slightest complaint about how those judges have discharged that task. On the contrary, they have behaved heroically. To my knowledge, no serious criticism has ever been made of the integrity, the impartiality or the professionalism with which they have dealt with those cases.
However, the fact has always remained, and remains today, that there are two classes of trial for offences of equal severity. One class has been denied jury trial by reason of an association with the emergency, or a presumed association with it, and the other class has had jury trial. That has given rise to grievances and perceptions that have been very inimical to public confidence in the judicial system.
This debate seems to be about the necessity for confidence in the jury system. From Northern Ireland one can draw certain perceptions. The first is that, all things being equal, the people strongly prefer jury trial, for the reasons that have been so well disclosed today—they scarcely need more than a passing mention from me. Pace the noble and learned Lord, Lord Donaldson, people see juries as offering a bulwark against a bully.
I could add another case to the two that the noble and learned Lord recalls in which the jury has gone against the weight of the evidence and the weight of judicial direction and done what it believed to be right because it thought that the law, whatever it was, was not being enforced in a way that accorded with its sense of what was sensible, proportionate and right. I think, therefore, that people see juries as a safeguard against a bully. They certainly see them as an independent institution—the importance of independence is very topical. People prefer their fate to lie in the hands of their fellow citizens. Perhaps they should not, but they do, and I am not in the business of telling them that they should not.
The second perception to come from the Northern Ireland experience is that mandatory discrimination between one defendant on a serious charge and another and according jury trial to one and denying it to the other is certain to engender grievance and a suspicious perception. Therefore, there is something to be drawn from the experience in Northern Ireland that may commend itself to the Committee. I hope that it does.
Lastly, I would like to say, with great respect, how much I enjoyed the speech made by the noble and learned Lord, Lord Cooke of Thorndon. I believe that I may be the only Member of your Lordships' House present today to be able to claim that I have appeared before the Court of Appeal in New Zealand when the noble and learned Lord, Lord Cooke of Thorndon, was president. From then onwards, I have entertained the greatest respect for that court, for its then president and for the entirely respectable way in which it disposed of my Spycatcher litigation.
The noble and learned Lord, Lord Cooke of Thorndon, said that trial by jury cannot be put higher than a cherished institution and that it was not a fundamental right. I agree, of course. It was extremely interesting as well as helpful to learn of the ways in which the jury system has been modified and adapted in New Zealand. However, I am not arguing for an unchanged system of jury trial because to retain it is to retain a fundamental human right. I believe that we should retain it because it is what the people want, for the reasons that I have outlined. At the moment, the system has the people's confidence in a way in which the alternatives proposed in the Bill, in my judgment, do not.
People see the jury system as an institution that is well tried and well approved, and one that carries valued advantages that would be lost by the suggested alternatives. Its replacement has not been electorally demanded. I did not find my argument holed beneath the waterline by the speech by the noble and learned Lord, Lord Cooke—enormously impressive and interesting though it was.
I conclude by offering this reflection. In many jurisdictions that derive from common law and owe their origin to this country, there are all sorts of variations that have been found to be acceptable and congenial in those respective countries. I hope that I will not be thought frivolous to point out that New Zealand has a one-chamber legislature, which is not a precedent likely to commend itself to the Committee.
To serve on a jury is an act of citizenship and citizenship is best understood within the history of the country in which it is being exercised, which for these purposes, is England and Wales. One can fairly say about the concept of citizenship in our country that it involves the right to have rights and the duty to perform duties. A jury trial exquisitely and democratically combines those two aspects of citizenship—one's right to be tried by one's fellow man and one's duty to participate in that process when called upon so to do. It is no doubt because we regard that as a fundamental value that the Government have included in this Bill the requirement for practically everybody to serve on a jury, whatever excuses people may try to put forward. What better vindication of its fundamental value in our society could we have than that provision?
Within our country such a value is not a myth, it is a reality: it is not sentiment, it is belief. The noble and learned Lord, Lord Mayhew of Twysden, was correct. We are not talking about human rights. We are talking, if the phrase is not too pretentious, about a fundamental value in which we have confidence. If that value is to be altered in legislation, it must be justified by serious, intelligent and convincing evidence and argument.
Many noble Lords on these Benches regard this Bill as an effective challenge to crime. Generally speaking, I accept the proposals about disclosure and double jeopardy. However, I stand firm on jury trial for the following reasons. First, on the provision in favour of trials without juries in long and complex cases, the Home Secretary himself said today or yesterday that he does not contend that juries cannot understand the evidence in such cases. If that is correct, the only concern that remains is the question of the burden upon the members of the jury who are asked to serve. Let us remember that all jurors are asked whether they are able to sit. If they have a reason not to, it is judicially considered. In all long cases juries sit as citizens throughout the process. We should not be concerned about the convenience of a particular juror when we are dealing with a fundamental value.
In this first sector of serious crime—usually fraud—I am for getting tough on fraud, but not for getting tough on the jury system. We are hopelessly weak in our attack on white-collar crime. I will briefly repeat the points that are obvious to us all. We do not have an organisation such as the SEC—the Securities and Exchange Commission—in America that pursues people early on and makes them pay massive fines to get out of a trial. We do not do that here. When people are brought to trial under the provisions of this Bill, there will be disclosure provisions that require defendants fully to explain the nature of their defence. With such a power of disclosure in the court, is it beyond the wit of the judge so to organise a fraud trial to crystallise the issue, require it to be phrased in plain English and restrict the number of counts before a jury? Of course it is not.
We are becoming hypnotised by the system that we have used for so long. Case management, a single offence of fraud, or any such ideas have not yet been properly tried. Until they are, I stand with the jury. What is the alternative that we glean from the material around the Bill? The Serious Fraud Office is seriously suggesting, if I have read correctly, that it could produce yet more complex prosecutions if a trial could be before the judge alone. Such trials would undoubtedly take longer and be more expensive. They would require the judge to produce written reasons and would certainly not assist justice. On the question of serious long cases, if we vote for this system, we suffer a real risk of institutionalising in our society enormously long, complex and expensive cases, as if that were our way of doing justice. It is not.
My second point concerns jury tampering. My noble friend Lady Scotland, no doubt acting on the material given to her by her advisers, is reported to have said in one of today's newspapers that it is almost impossible to guarantee the security of jurors at present. It is an astonishing state of affairs in a mature democracy that we cannot secure the safety of jurors in our criminal process. However, we should add that neither can we guarantee the safety of witnesses, nor that of a prosecutor and, according to one of the examples given in some of the briefing material, not even that of a judge. There was an example a while back of a defendant seeking to get out of a case by planting into the judges telephone records a totally bogus call said to have taken place between the judge and the defendant, which was then used as an argument for getting out on appeal. It is simply wishful thinking to say that, because we can do without a jury, the system is bound to work. It is not necessarily so.
Is the priority to protect jurors, witnesses and prosecutors, or is it to tinker with the jury system? It would be an unhappy result if we were to pass the clause and it became a fact of life in this country that we could not guarantee the security of jurors. Can it be done? America proclaims the value of the jury system in a society in which crime has been far more organised, sustained and ingenious than in this country. On that ground, I stand for the jury.
Lastly, there is election by the defendant. In Clause 41, there is a considerable exercise in illogic, no matter how felicitously phrased, for several reasons. First, there is no guidance as to the circumstances in which a defendant may seek trial by a judge, instead of a jury. Other than the given exception, there are no indications of the standards that a judge is to apply in deciding whether to allow trial by judge alone. That is how the Bill stands. What will it mean, if we have such election? Surely, it means—implicitly, if not quite explicitly—that there are grounds in our democratic society to doubt the justice of a jury trial. We cannot have it both ways: we are either for the system, or we declare ourselves to have lost confidence in it.
The irony of Clause 41 is well demonstrated by the fact that it provides that a case in which a servant of justice is charged with an offence the nature of which appears to bring into disrepute or prejudices the administration of justice is the type of case for which we are likely to need a jury. Is that logical?
On election, tampering and fraud, I say, "Stand by the jury". However, I do not say, "Do nothing"; I say, "Do plenty—to get rid of the problems that are said to found the reasons for the change". If we have to vote at the end of our considerations today, the question will be whether we are convinced that it is a necessary step. Are we convinced, not only personally, but because we think that the majority of the community would agree with such changes in the jury system? I do not think that they would. One need not be a lawyer to make the analysis that I have just made; one must be a citizen who believes in jury trials. I do.
My Lords, I have listened to the debate with great interest, with great support for the views that have been expressed on the jury system and with ever-growing puzzlement as to why the Government are putting the suggestions forward.
There is little more that I would want to say on jury tampering than what my noble friend Lord Hunt of Wirral said two hours ago. If there is jury tampering, it should be dealt with in ways other than deprivation of such an important right, which is vested in the defendant.
As I understand it, there is total acceptance by the Government—this is why I respectfully demur from the approach adopted by the noble and learned Lord, Lord Donaldson of Lymington—that, normally, serious offences should be dealt with in this country by the jury system. If that is right, it is nothing to the point that judges are capable of judging cases fairly and well. We have long opted for the jury system.
I looked at the ground for the exception in the case of serious fraud trials. I own that, some years ago, when the Roskill committee reported, I was attracted by the idea of trial by judge and two assessors. Then it was suggested that one of the reasons for that was the need to ensure that a fair verdict was arrived at by a tribunal that understood the evidence. As I understand it, the Government have abandoned the suggestion that the jury cannot understand the case. Now that they have done that, the entire underpinning of their case has gone.
In several respects, dishonesty is at the heart of most such cases. It is desirable that the issue—one of fundamental truth—should be decided by a jury. The reasons have been given by others, and I shall not expand on them. The noble and learned Lord, Lord Ackner, mentioned the Justice briefing, which has been supplied to the Minister. It is possible to improve procedures in our jury trials to avoid and lessen the burden on jurors.
I commend to anyone who thinks that it may not happen a splendid book by Mr Trevor Grove, called The Juryman's Tale. He speaks of a long trial that conditioned his experience and led him to become a magistrate and write a subsequent book, The Magistrate's Tale. He comes to the conclusion that the jurors can understand such cases but, my goodness, they could be helped by improvements to the procedures. I agree.
I shall close by taking up a point made by the noble Baroness, Lady Kennedy of The Shaws. She made a point about control by the Government. I do so as gently as I can, as I am not an especially party-political person. However, I have, in recent years, become more and more concerned about the attitude of the Government to the value of the rule of law. It began with the attempt—made twice in a short space of time—radically to limit the availability of juries in minor trials. Those plans were kicked out by your Lordships' House, and that was applauded by the public.
I am sorry to say it but, this year, we have seen a Home Secretary who, on occasion, has undoubtedly made disparaging remarks about judgments that were given against him. It is the task of the Home Secretary to decide whether to appeal judgments that go against him: it is not his task to do anything that may bring our independent judiciary into disrespect.
In the Bill, there are certain disclosure requirements relating to the defence, including the requirement relating to expert witnesses, which have led no less fair, courteous, decent and able a judge than our Lord Chief Justice to put a paper in the Library saying that the provisions give unequal treatment—that is, they are not fair to the defendant, as against the prosecution. I would have hoped that no Lord Chief Justice would ever have seen it necessary to make such a charge against a government of our country. All that and the Government ask us to limit trial by jury and to leave the trial to judge alone when we simply do not know at the moment by whom those judges are to be appointed.
The Minister demurs, but perhaps I may remind her of an answer given by the noble and learned Lord the Lord Chancellor yesterday. The final decision would be made by a Minister. At present, that Minister is the Lord Chancellor. That Minister is legally qualified. That Minister is insulated from the House of Commons. That Minister and successive holders have a long and honourable tradition of preserving total independence in the appointment of judges. By contrast, the final appointer now, if the consultation paper goes through, is to be a Minister who will be in the Cabinet, contrary to the Government's avowed principles of separation of powers, who may be in the House of Commons and who need not necessarily be legally qualified. We simply do not know what will be the basis of their competence to preserve the independence of the judiciary and to choose the appropriate judges.
I hope that my fears about the ultimate aim of the Government in some of these reforms are unfounded. What I know is that until we actually know the degree of independence which is to go into the appointment of judges, until Parliament, which is the decision-taking body on this, has decided it, I would not go an inch to lessen the role of the jury.
Like the noble Lord, Lord Hunt of Wirral, I, too, am concerned that the proposals in the Bill for the limitation of jury trial could be the thin edge of the wedge leading to a more radical assault on the right to jury trial of the kind that the Government have favoured in the past but have been unsuccessful in putting through this Parliament.
I shall concentrate briefly on three areas. The first area is the jury system and ethnic minorities; the second is our international reputation; and the third is tampering with juries. Taking up the suggestion made by the noble Lord, Lord Hunt, about the issues relating to racial minorities, I shall concentrate on one specific but crucial area of the argument; that is, whether ending the right to trial by jury will disadvantage black and Asian defendants and further dent the confidence of racial minority groups in the criminal justice process. Will the change be to the disadvantage of racial minorities? Will black and Asian people perceive the change to be biased against them and thereby further dent their confidence in the fairness of the criminal justice process?
There appears to be no dispute that black and Asian defendants who appear in the Crown Court are more likely to be acquitted than white defendants. For example, the research by Gordon Barclay—from the Home Office at one time—and Bonny Mhlanga, cited in the Section 95 publication, Statistics on Race and the Criminal Justice System 2000, showed that the acquittal rate in contested Crown Court trials was 36 per cent for black defendants and 44 per cent for Asian defendants compared with 30 per cent for white defendants. Many black and Asian defendants are likely to feel—rightly or wrongly—that trials by a single white judge might produce a different result to trial by jury or, more importantly, by a multi-racial jury.
Minority communities would also fear that the moves in the Bill are the beginning of a slippery slope to a greater restriction on the right to elect jury trial. In the past, the Government have argued that black defendants are also more likely to be acquitted by magistrates than white defendants. It has cited figures showing a higher conviction rate for white defendants than black defendants in magistrates' courts. However, a range of research studies indicated that black people are more likely to be prosecuted in cases where the evidence is weaker. That means that there ought to be a higher acquittal rate; it is possible that the acquittal rate should be higher still if justice was done in every case. The bald figures do not provide a solid basis for reassuring black or Asian defendants who fear that if future measures require their cases to stay in the magistrates' court they are less likely to receive justice from what, in many cases, would be an all-white group of magistrates.
If the statistical evidence is complex, the issue of perception is more clear-cut. It is quite clear that many black or Asian people strongly believe that they will get a fairer trial from a multi-racial jury than from an all-white bench of magistrates. They will perceive this even more strongly in those cases where it is proposed that they be tried by a single white Oxbridge-educated judge. It surely is not difficult to understand that feeling.
If the Government were able to produce robust and sophisticated research findings disproving this perception, I would be prepared to play my part in helping to spread those findings among minority communities in order to help boost confidence in the court process. However, as yet we have seen no such findings. In any case, they would not in themselves justify restrictions on jury trial. At a time when the criminal justice system needs to take every step it can to sustain the confidence of minorities, moves towards the restriction of jury trial are a step in precisely the opposite direction.
So what is the basis of my case? In the past, I consulted the very organisation which the Government set up to promote equality and good relations—namely, the Commission for Racial Equality. I was told that it had three objections. First, the proposals were not "race-proofed" before they were introduced and the Government tried to justify them post hoc. Secondly, contrary to the Government's pledge to increase ethnic minority confidence in the criminal justice system, these proposals would further erode it. Thirdly, there is every indication that each year hundreds of defendants who would have been acquitted at the Crown Court will be found guilty if this legislation is passed. A disproportionate number of those people will be from minorities. Those are not my words but the words of the Commission for Racial Equality. It would be helpful to know from the Minister whether this body, set up by the Government, was consulted before the proposals were framed.
Seventeen per cent of the male prison population and 25 per cent of women prisoners are from ethnic minorities, which is a matter of serious concern. We need much more detailed studies on sentencing. I have figures before me but it is too late in the day to go into detail. The case has been made by a number of other speakers. We have evidence from former members of the Royal Commission on Criminal Justice about how they view the whole process. The most important aspect to bear in mind is that at a time when the criminal justice system needs to take every step it can to repair the confidence of racial minorities, abolishing the right to elect jury trial is a retrograde step.
Perhaps I may conclude by putting forward two brief arguments. First, I am sure that I shall have the support of the whole House on a point clearly identified by the noble Baroness, Lady Kennedy, which concerns our international reputation and standing. Perhaps I may remind Members of the Committee of the situation in Russia, Nigeria and a number of other countries on the world stage where courts and those who administer justice are bound to be corrupt. Justice is at a premium. The only hope that innocent people have is the jury system. However imperfect it may be, in many cases it is a matter of life and death. Those countries would be entitled to say that if Britain, the mother of democracy, can abolish trial by jury, what is to stop them doing precisely that?
The second point relates to jury tampering. If juries need protection, we must provide it. Let me give an analogy: we do not stop mugging by locking up old ladies, nor should we abolish juries because criminals interfere with them. We should be more robust in protecting the principle which has stood the test of time. The Home Office should look again at the proposal it is advocating.
I rise to make a brief contribution. I apologise to earlier speakers who I did not hear, but I was unavoidably delayed. As a former commissioner, I always believed that the jury trial was at the heart of the criminal justice system. I still believe that it should be changed only if there are compelling reasons, and I am not convinced. A personal observation that I would add—I think I probably have a unique personal experience this year over your Lordships—is that I stood as a defendant for five weeks in No. 2 court at the Old Bailey on a health and safety charge. Although my liberty was not at risk and I was not financially at risk, my reputation and the future of operational policing was at risk in many respects.
I realised within a few days who I wanted to adjudicate on those important issues. I looked across at the good men and women of the jury and I was absolutely content and reassured that it was a jury adjudicating on the issue and not some other form of tribunal. So I find myself, perhaps against the stereotype, wishing to preserve and protect the role of the jury at the heart of the criminal justice system.
However, if noble Lords are not prepared to contemplate any change to trial by jury under any circumstances, then a number of things will need to follow from that. Although I was full of admiration for the jury in my case who, I think, came to the right conclusion, it was interesting to see how that jury was empanelled and how a group of 40 to 50 people was whittled down to the jury that finally served in the trial. Once the judge made it apparent that the trial would last for at least five weeks, everyone wearing a suit and tie disappeared from consideration. Once it was reinforced that the trial would last for at least five or six weeks, the penny dropped and people began to come up with—I must be unkind here—contrived excuses which were allowed.
If we are not to contemplate any change to trial by jury, then we must ensure that juries are truly representative and that people are not allowed to escape the duty spoken of by noble Lords earlier in the debate. It is a duty that must be fulfilled by a wider range of society than is provided by the narrowness and arbitrariness of parts of the current selection process. So in relation to serious and complex cases, if people are expected to sit for three, six or nine months, then there must be a fair distribution of responsibility as regards who sits on such trials.
The only other point I wish to make concerns jury tampering. Many of my former colleagues, chief constables, feel passionately about this issue and consider that trial by judge is the only way forward. I understand where they come from in their argument, but I do not share in its force. Like other noble Lords, I believe that the remedies must lie in better protection of juries. However, the price to pay for that protection will be very intrusive; that is, more intrusive in jurors' lives than is currently the case. Again, that is something that we should be prepared to do.
So I find myself in agreement with those who have grave anxiety about removing trial by jury, even in a limited number of cases. But if we are not to contemplate any change, then we must consider how to reinforce the role of our jurors, who will sit as jurors, and the protection they are given.
I rise to respond to what I think has been a very in-depth debate on these provisions. However, it has smacked more of a Second Reading debate than it has of consideration in Committee. I shall bear in mind what was said by the noble and learned Lord, Lord Ackner, as to why that may have been so.
Somewhat out of sequence, perhaps I may take up some of the points that have just been made by the noble Lord, Lord Condon, who of course has enormous experience of these issues. I do so because he has raised some very telling points. I think it was the noble and learned Lord, Lord Mayhew, who said that juries are what people want. What I would say in answer to that remark is: not universally. It is our experience, gained from many long and difficult cases, that sometimes hundreds of potential jurors have to be empanelled before a jury can be chosen because individuals do not want their lives to be totally disrupted and their day-to-day activities completely suborned for what can be several months or even, on occasion, over a year. That is a very serious point for us to grapple with.
I turn to the second point made by the noble Lord, Lord Condon, regarding what can be done about jury intimidation. I do so because the noble Lord said that he is outwith the views expressed by his colleagues. Many noble Lords will know that some 47 chief constables have written in the most trenchant terms to express their concern and anxiety about the task with which they have to grapple on our behalf on a daily basis. They have done so because these are changing times.
Noble Lords say that we can grapple with these complexities, but none of us should fool ourselves. We live in a very different world from that which we faced when I came to the Bar in 1977 and when many other noble Lords did so. I believe that the noble Lord, Lord Renton, was called to the Bar before I was born. Things have changed. Today we have to deal with complex, difficult, vicious criminals who will stop at nothing. There is no boundary which they will not cross to get what they want, and what they want is the disintegration of our system. They want to be outside of it and they will use every tool and every machination in their attempts to undermine the security of our system. We must acknowledge that reality when we consider the task with which Clauses 41, 42, 43 and 45 seek to grapple.
Of course we are all influenced by our passion for the importance of the jury, but I should say to noble Lords that some balm to our spirit in this debate was provided by the sagacity of the noble and learned Lord, Lord Cooke of Thorndon. I say that because many noble Lords fear change. To repeat the word used by my noble friend Lord Clinton-Davis, we are in the main "conservative" when we deal with change. Therefore it is not surprising that noble Lords from all sides of the Committee have expressed their fear of change, their worries about what will happen if we trespass into a different area. The only Member of the Committee who has had that advantage for some considerable time is the noble and learned Lord, Lord Cooke, and so I listened with great care to what he had to say. His words stem not from fear, but from objective experience. He told the Committee that this is a bourn from which travellers do return. He was also able to reassure the Committee that jurors and the validity of juries cannot be undermined thereby.
I wanted to start my response with those comments because we need to look at this issue with a certain degree of calm reflection. I say that because Members of this House carry out a very important duty on behalf of members of the public. We are not the elected House, but we bring to bear the experience and, one hopes, the wisdom and not the prejudice which will enable us to look afresh at things we have to consider. We must face issues that we have not faced before.
So it is with a little sadness that I say to the noble Lord, Lord Alexander of Weedon, that I have to part company with him entirely when he says that this Government do not honour the rule of law. I believe that it was he who made the remark rather than the noble and learned Lord, Lord Mayhew. I can say to the noble Lord, without fear of contradiction, that this Government and this party hold at their very core—their very essence—the rule of law as it applies not to one but to us all. If you look at this party's history, you will see that thumbprint all the way through it. I can reassure the noble Lord that nothing has changed.
But we now live in a different world and we need to look at the context in which these provisions are being sought. This is one of the most comprehensive reform programmes that the House has ever seen in relation to the criminal justice system. All noble Lords have said that they value many of the changes that the Government are about to make. Through this Bill we are seeking to give the judiciary the tools it will need to make the punishment fit the crime, to enhance opportunities for rehabilitation, for mercy, as has been prayed, for change, and also for safety.
That is why we seek to introduce the new tools and to make them available to judges in order that they may decide whether someone should be set free, with conditions, on licence. It is an important change and Part 7 of the Bill is part and parcel of the whole picture. I know that there is a temptation to lift it out and pretend that it stands alone. But it does not; it is an integrated part of the whole.
I shall speak personally. I have faith in the judges of our country that they will exercise their discretion without fear or favour; that they will hold in the balance the rights of the defendant against the rights of the public to justice. When making the decision as to whether it is in the interests of justice to have a jury trial or whether, exceptionally, it is in the interests of justice for a judge to sit alone, our judges will bear in mind all the issues raised by the noble Lords, Lord Thomas of Gresford and Lord Dholakia, in terms of what we need to craft in order to make this change.
I almost want to throw the question back to the noble Lord and ask whether he really believes that in the kind of cases he described any judge worth his salt would say, "We do not need a jury trial in this case. It suffices for the judge to sit alone". No, these provisions are there for the very rare, exceptional cases when the full panoply of the protection that the noble Lord, Lord Condon, knows we give simply may not be enough. We are talking about jurors who have their whole lives overtaken by protection, 24 hours a day, seven days a week, not for a week but for month after month after month.
There have been cases where juries have been discharged not only because of a threat of violence, not only because of bribery, but because witnesses on occasion have been shot, hurt, injured, maimed. When that happens, do we say "Enough"? Do we say, "Now we should follow a different course because it has been proven that these particular elements know no bounds"? Or do we say, "It suffices"? I have to say to noble Lords that these questions are being asked outside the House and we, each of us, will have to justify to the members of the public why we have done this.
A number of noble Lords have said that the Government have given up on complexity. I say, "Not entirely". Some cases are now extraordinarily complex, and it is that very complexity that cloaks sometimes the inequity that lies beneath. To have a successful prosecution we need to rip away that cloak and to lay bare the inequity that lies beneath it. That cannot be done quickly and it cannot always be done easily and simplistically. We advocates believe that all is possible. We are the communicators. We can make that which is cloudy seem clear. We can hone an issue so that those who do not understand will understand. Sometimes that is true, but the tragedy is that sometimes it is not.
We are now faced with not only our own offenders but international criminals who will use every device available to them to cloud and cloak what they do. This is a testing moment for the House. We are in Committee and this is where we discuss the issues that need to be debated so that we can hone that which should go into the Bill. This is the moment when we say our minds are open to debate. Some noble Lords have clearly indicated that there will be a Division and that the Committee will speak. I hope that the Committee will also listen because, when we leave the House, each of us will bear a responsibility for what happens thereafter.
So let me do what we do in Committee and look at the Bill. A number of questions have been asked and a number of issues have been raised. I heard what my noble friend Lady Kennedy of The Shaws said. She, too, seemed to suggest that the Bill is a great undermining. She said, "Here we are. We are in the dock. We have been in the dock before. We have been found guilty on a number of occasions and all noble Lords should hold those convictions against us. When you come to look at what we say we should be burdened by that history. We should not stand or fall on what we say now".
The noble Lord, Lord Mishcon, gave an example which will be indelibly printed on my mind. He referred to the tramp who was misunderstood. Why? Because of the clothing; because of what he had done before. The noble Baroness said, "Judge not on history. Judge on the facts of this case". I take her at her word. I say to the Committee, judge not on the history but on what we are doing now. It is what we are doing now that counts.
The Committee should understand that the Government have listened. The noble Lord referred to the fact that there has been a mode of trial Bill before; that it was wrong; that the Government should not have introduced it; that the Government should think again. The Government did. We did not bring back the Bill as we could have done under the Parliament Act; we thought again.
I remember that two or three years ago it was being urged upon us with great passion that the mischief we had to cure was intimidation and fraud. That was the mischief we needed to address; not the rest. Fraud and intimidation. We have listened and we have come back to your Lordships' House to ask for discretion in relation to fraud and intimidation. Not because that is what we want but because it is what the public want, what we are told the public need.
But what are we told now? We are told, "Oh, it is too late now. You should have done that before". That is not how we govern. This is not a game where we say, "I hit you so you hit me". We believe in mercy, we believe in redemption, we believe in rehabilitation and we believe in change. The Bill seeks to achieve that.
Let us look at the issues that noble Lords have raised. They have asked about the discretion, how it will work and what the limitations are. I invite the Committee to look at Clause 41(7), which states:
"This subsection applies if the judge is satisfied—
(a) that, because of the conduct which is alleged to constitute the offence or any of the offences concerned, the issues which will arise at the trial for determination include issues relating to whether the administration of civil or criminal justice has been prejudiced or brought into disrepute, and
(b) that the matters mentioned in paragraph (a) give rise to exceptional circumstances which make it desirable in the interests of justice for the trial to be conducted with a jury".
I invite all those who ask where is my safety net, where is my security for preservation of the jury in the right case, to look first at Clause 41(7).
Noble Lords have asked, what of Clause 42? I invite them to look at Clause 42(6), which states:
"In deciding whether or not he is satisfied that both of those two conditions are fulfilled, the judge must have regard to any steps which might reasonably be taken to reduce the complexity or length of trial".
That answers those who say that people will get sloppy and go on and on. No, the judge is obliged to look under Clause 42(6).
Clause 43, as noble Lords know, deals with the application by the prosecution for the trial to be conducted without a jury where a danger of jury tampering arises. What do we find there in relation to the second condition therein referred? Subsection (5) states:
"The second condition is that—
(a) the danger is such that it would be necessary to provide police protection for the members of a jury hearing the trial, and
(b) the level and duration of that protection would be likely to place an excessive burden upon the life of a typical juror".
Of course I hear what the noble and learned Lord, Lord Lloyd, says. In many of these cases, the jurors are able to withstand the burden, and they discharge their duty with integrity and real courage. I, from this Dispatch Box, commend them for that. But there are those for whom it is simply too heavy a burden.
We should ask ourselves whether we would be willing to give up a whole year of our life, with no days off—because the trial will stop if we have a day off—and to live under 24-hour supervision. Would we be willing to give up a whole year of our life? We all consider ourselves to be decent citizens, public-spirited and good-hearted people who wish to serve our country and our citizens. I regret to say that if we carried out a straw poll, most of us would say, "Actually, thank you, but no thanks".
So who are we imposing this burden upon? It is not only us. We have to ask ourselves whether it is so unsafe and unsatisfactory that a judge, entrusted with the exercise of that discretion, should make that judgment. There will be cases, no matter how great the burden, in which public interest will demand a jury trial because there is no other way through. But there are other cases in which that may not be so.
This Bill seeks not to expunge the right of jury trial in relation to the most serious and heavy cases but to give the judge, whom we have entrusted with the conduct of this trial, the right, the privilege and the burden, on behalf of the public, to make that decision by exercising that judgment.
I hear what the noble and learned Lord, Lord Mayhew, says about the experience in Northern Ireland. However, that experience, as he rightly says, demonstrates that the public can have confidence in the sanctity of the judgments made. There has been no suggestion in all those years that the interest demonstrated by the judge has been anything other than a true interest in the rule of law and the administration of justice. People have confidence in that. Whatever else they say, no one in 30 years has suggested that it is a politically motivated or improper process. I see the noble and learned Lord nodding his head. So we have good examples.
Some 30 years ago, I sat in the Public Gallery of the House of Commons listening to Lord Jenkins of Hillhead deploying arguments in favour of accepting majority verdicts on juries. Those arguments had something in common with these. I was persuaded of them slowly and reluctantly because they went contrary to the bulk of Lord Jenkins' record. Can the Home Secretary say the same thing?
I would say yes. It is always a delight, as the noble Earl, Lord Russell, knows, to look back at history and see what was said by those who went before us. All these arguments, as has been so graphically said from the Liberal Democrat Benches, were made before. We were told it would be the end of the world as we knew it to have majority verdicts. Everything would grind to a halt—the ceiling would fall in, juries would be undermined. That is what people said.
They then came to peremptory challenges. I stand in the dock on peremptory challenges. I remember thinking at the time, "Doing away with peremptory challenges—whatever next". But the roof did not fall in, jurors' will was not suborned and justice has been done.
The noble and learned Lord, Lord Cooke, took us through the history of juries. Juries have changed many times; the core has remained the same. Nothing in these provisions seeks to damage the sanctity of the jury. Noble Lords who say that if you suppress discretion one way it will bubble up elsewhere should bear that in mind when we look at these issues, because they will come back. If we do not face them now, we will have to find a way of facing them later.
We have balance in these provisions. We need to talk, perhaps, about the provisions themselves, but as to whether they should stand part, I say that they should. Let us debate, if we must, the detail. Let us debate balance; let us debate proportionality. But I ask noble Lords to open their ears and their minds. If it was not in relation to these issues, I certainly know all these concerns from looking in the documents from New Zealand and Australia. They come from the same root as do we—from the common law. All these concerns were played out in those jurisdictions.
I understand the concern of the noble Lord, Lord Alexander of Weedon. I do not hide the fact that I wince at his suggestion that the independence of our judiciary will ever be impugned. For so long as I remain anything to do with this Government, that will not happen. But I rely not on myself but on thousands of years of good tradition which has never been suppressed. I believe that the judiciary we have today, who sit in judgment, will be with us, by the grace of God, for a very long time. If the longevity of this House is anything to go by, they will be with us for a very significant time indeed.
This country has produced some of the greatest jurists. Many of them I have been privileged to listen to today. I do not feel that they will go away; I do not see them weakened, either in their passion or in their content. I listened with great care to everything that was said by all Members of the Committee. I almost wish that I could read out the roll call, which sounds a little like Henry V, of all the great names who have participated in this debate. Noble Lords have given justice.
The noble Lord, Lord Dholakia, rightly raised the question of the proper sensitivity about what we should do about black and minority ethnic defendants. How do we look at those issues? That is something of which the Government are very aware, and we have had discussions with the CRE. We are looking at what we need to do to monitor the provisions. The Home Office race equality scheme is, as noble Lords know, a living document, which recognises that it is often necessary to take a pragmatic approach to arrangements for assessing and consulting on new policies. The Home Office has committed to a regular review of its functions and to assessing them to determine their impact on the public, including minority ethnic communities.
I myself wrote to Trevor Phillips, the chair of the Commission for Racial Equality, to confirm that we will assess the proposals in the Bill that the commission has suggested would benefit from assessment. That was in his letter of 11th June. Those provisions include: on Clause 5, limits on periods of detention without charge; on Part 7, trials on indictment without a jury; on Part 10, retrial for serious offences; on Part 11, Chapter 1 evidence about character; on Clause 146, as noble Lords know, an increase in general limits on magistrates' courts' powers; on Clause 271, the minimum sentences for certain firearm clauses; and on Clause 274, powers to limit periods of detention without charge of suspected terrorists.
We have agreed that all those should be included in the assessment that we shall make in relation to the proposals. We will have a watching brief on those issues, and I hope that I can assure noble Lords that the Government are very committed and concerned about them. We want to ensure that the provisions of the Bill apply with equality to all our citizens in a way that is not disproportionate and really does inure to the interests of justice.
I ask noble Lords to consider long and hard, first, whether this is an issue on which the Committee feels that it is proper to divide and, secondly, whether they are content with the results that will flow therefrom.
I raise the issue of public interest immunity. How does a judge, sitting alone, deal with that difficult issue when matters are put before him without the defence being present? How can a judge deal with that, sitting alone?
The judge deals with that by considering those factors and taking them into account when a decision is made as to whether that case is suitable for trial by judge alone. It may be those very factors that will weigh heavily on the judge's mind to make that judge exercise the discretion. He may say, "This is a case that I believe, should, in the public interest—as provided for under the legislation—properly be heard by a judge and a jury together".
I remind noble Lords that before such decisions are made both the defence and the prosecution will be able to make submissions about the mode of trial. That will not happen, as many noble Lords have suggested, at the door of the court when people will see what judge they fancy, and say, "Well, I really do think that the noble Lord, Lord Hunt is a very nice cove. I think he will be very good for me, so I will go for that judge; but I am very concerned about the noble Lord, Lord Alexander, who looks quite different".
Those decisions will not be capable of being made in such a way, because they will be made at the preparatory stage; that is, before there is any knowledge of who the judge will be. Therefore, people will not be able to pick and mix—it will be more like Russian roulette. They will not know who they will get, and they will not be able to determine it. However, they will get a judge who will try the case fairly.
The defence and the prosecution will not only be able to argue about whether a jury is merited and give good reason as regards which should be chosen but also, if either side is displeased with the result, they can appeal to the Court of Appeal where all those questions—all those wonderful debates—about what is in the public interest, and whether it is going to be possible or appropriate for the judge to hear the case alone, can be rehearsed all over again. The court can then decide how to deal with it.
I can say to my noble friend that there are safeguards in the Bill that will allow her to quiet her beating heart.
This has been a very important debate, with some outstanding speeches from all sides of the House. However, if noble Lords will forgive me, I do not think that I should delay matters by seeking to respond. Suffice it to say that this House has an honourable and proud tradition of standing firm against the executive to protect our fundamental rights and liberties. I, and many other noble Lords, have stressed why we believe that the right to jury trial is one of those fundamental freedoms. Therefore, I hope that this Chamber will fight to keep this very touchstone of our liberties. I wish to test the opinion of the Committee.
The Committee may think it rather strange that, in a Bill of this importance, there is only one non-government amendment to the nine clauses which deal with the jury. In making my few remarks on this group of amendments, I wish to make it perfectly and abundantly clear that I am as protective and admiring of the jury system as anyone who has spoken today. However, I believe that there has been some wishful and romantic thinking about the capacity of modern juries which are randomly selected—although, as the noble Lord, Lord Condon, indicated, they are not truly randomly selected; in lengthy modern trials, there is a disproportionate representation on juries of unemployed persons. There is a good deal of romanticism as to the comprehension of those juries of the complexities of fraud trials.
Like others, I will remember the anecdote of the noble Lord, Lord Mishcon, who talked of the poor old tramp in Bow Street. However, I suggest that the old tramp is hardly typical of the normal accused person in a modern complex fraud trial who comes to court typically armed with a battery of expensive lawyers, the mission of which is not to explain so much as to secure an acquittal. I do not think that I do my profession an injustice if I say that defence barristers are adept at obfuscating when it is in the interests of their clients so to do.
Had there been present at the Maxwell trial—as I am sure there were in the public gallery—poor old pensioners of the Mirror Group, they would have been appalled at the trial's outcome. It is perhaps a comment on our debate today that not a single person, I think, has referred to the public reaction to the Maxwell trial and other fraud trials that have gone wrong. It is worth reminding ourselves that one of the biggest, most longstanding, massive and premeditated frauds in modern business history has not resulted in a single conviction of a single one of the many players involved. I think that that says a great deal about the state of complex fraud trials.
That perception is reinforced by the extremely worrying failure of the prosecuting authorities to bring before the courts a steady and reasonable flow of fraud cases. In an Answer to a Written Question which I tabled recently, I discovered that, in a typical year, the Serious Fraud Office brings forward only 25 prosecutions for fraud. The Answer also indicated that, in the past five years, there has been only one prosecution for insider trading—which I am afraid to say is a daily—indeed, hourly—occurrence in the City of London. The principal reason why there is such a paucity of prosecutions of fraud, at a time when by all accounts it is burgeoning, is the difficulty of obtaining a conviction.
We all know the reaction in the press and on television to the failure of one of these great fraud trials. Those bringing the prosecution who have been seen to fail at vast public expense are excoriated. The effect of that upon the Serious Fraud Office and Crown Prosecution offices is the one to which I have just referred—an extremely small flow of cases through the courts.
The position was considerably complicated by the observations of the Court of Appeal in the Blue Arrow case where it in effect strongly advised both the Serious Fraud Office and future judges of fraud cases to unbundle or sever different charges rather than deal with them jointly. In preparing for the debate I had cause to speak both to the present chief officer of the Serious Fraud Office and to George Staple QC, who was a distinguished chief of the Serious Fraud Office for some years. His view of these matters was put in a letter to me which I received only a few days ago. He says:
"On further reflection over the last few years"— this comes from someone who believed in the traditional status quo method of dealing with fraud trials—
"and in spite of the best efforts of counsel in the Serious Fraud Office, I am no longer convinced that the trial procedure, dominated as it is by the oral tradition in which the jury play an entirely passive role—a question from the jury is rare indeed—does enable the jury properly to understand the evidence in the most complex cases. When the time comes at the end of the process to reach a verdict, the juror is expected to recall with clarity evidence which may have been presented to him many months before and take it properly into account when reaching his verdict. Subjecting lay people to this process is not to my mind best calculated to ensure that in the most complex and difficult cases the juror will be free from doubt and be sure of his verdict. He will receive a powerful summing up that if in doubt he must acquit and the responsible juror will be more comfortable in taking refuge in this formula".
George Staple, if left to a choice between my amendment which preserves the jury, but a special jury, or to follow the Roskill route, which was to have a judge with two expert assessors, would incline in favour of the Roskill route. But it is because I am profoundly reluctant to abandon juries that I commend this amendment to the Committee and solicit its views. I am aware that my proposals for Clause 42 are not comprehensive and do not, for example, deal with the reduced majority of five to one, but I believe that it would be possible to establish a list of special jurors with the necessary experience or expertise. Those are the words I use, not, if I may say so, the formula of the noble and learned Lord, Lord Cooke of Thorndon, of gentlemen, esquires and the rest of it. I am talking of those with experience and expertise.
That would not, of course, confine jurors to qualified professionals but could extend to people who have worked in the finance and accounting departments of businesses of all sorts. It would not be beyond the wit of man to devise such lists, especially as many in the financial services sector now retire before 55. It is not even as if special juries are a novelty. They were a major and widespread feature of jury trials, mainly civil but also criminal, for centuries and were only abolished finally by the Juries Act 1949, but were preserved for civil commercial cases in the City until the Courts Act 1971 was passed.
Since the Roskill report in 1986 the problem has become significantly worse both in terms of the complexity of law and trials and in terms of the amount of fraud, which is why George Staple significantly shifted against leaving such trials to ordinary juries, and presumably why the former Lord Chancellor was reported in the Financial Times a year ago, in relation to those who think that the status quo is adequate, as saying that it is very often a pious hope to get a satisfactory outcome from a traditional jury given the staggering complexity, as he rightly called it, of some trials.
As I say, there is a media profile of failure. This tiny trickle of cases is now working its way through the courts at the very time when the City of London's reputation is being seriously undermined by the amount of unchecked, unpunished fraud. If one wants a very recent example of the same problem across the water in Wall Street, one has only to consider the "laddering" fraud claims which recently resulted in fines by the SEC on just 10 investment banks of £1.35 billion, with a further £5 billion plus civil claims following up. That was a case of what I could call collective fraud among investment banks in Wall Street. We have not, I suggest, seen the last of it here.
Finally, the idea of having special juries of people of expertise and experience is supported by the Fraud Advisory Panel, which is a group of professionals who are deeply engaged in that kind of trial. In an article in the New Law Journal in March 2000, the author said,
"The Juries Act 1974 does not adequately allow for the selection of jurors who are by reason of level of numeracy and literacy capable of following the kind of evidence typically presented in serious fraud trials".
They go on to point out that questionnaires are used in trials at the moment and were used, for example, in the Maxwell trial. They are used, first, to establish whether there is conflict of interest and, secondly, to establish the personal circumstances of those who have been empanelled. For Maxwell, I understand that more than 700 were empanelled, which gives one some idea of the problem of getting down to 12. A Home Office report of 1998 on fraud trials stated:
"It is clear from the transcripts of the Maxwell trial that the questionnaires were also used by the court to identify and excuse jurors with obvious and serious literacy problems".
That, it stated, was probably incidental.
My amendment would merely make what is incidental formally permissible and gather together a number of our fellow citizens who have the expertise and experience. That would achieve two things. First, it would speed the course of trials enormously, because, as is obvious, the case currently must proceed, like a convoy, at the pace of the slowest juror. It would therefore accelerate trials considerably. Secondly, it would enable those who are supposedly sitting in judgment to have some prospect of following the twists, turns and complexities.
Perhaps I may make a point from personal experience. Several noble Lords have spoken of their own experiences in these matters. Having spent a good number of my early years dealing with fraud trials as a solicitor, and as one who since tried to explain the complexities of the law to the great British public for 25 years as "Legal Eagle" on "The Jimmy Young Show"—
Thank you. I have a strong source of intelligence about what the great British public think about our legal system and its defects. The flow of letters—about 100 a week—into that programme is totally unmediated.
For my money, the problem is not that an unselected, random group of citizens is currently sitting on fraud trial juries. The public are not daft. They understand that the unbelievable difficulties of following those trials, if one has no financial experience, training, or numeracy, make the process a near farce. We should not be caught up in recollections of Henry Fonda in "Twelve Angry Men". The jury is wonderful for a typical case involving violence, dishonesty, burglary, where there is a match between the jury, the accused and the case, but not in complex fraud trials.
I conclude with a further quote from Mr Staple that puts the finger on the myth of jury comprehension. He stated in his letter to me,
"When the time comes, at the end of the process, to reach a verdict, the juror is expected to recall with clarity evidence which may have been presented to him many months before and take it properly into account when reaching his verdict. Subjecting lay people to this process is not to my mind best calculated to ensure that in the most complex and difficult cases the juror will be free from doubt and thus be sure of his verdict".
That is the nub of it. I am powerfully in favour of jury trials, but powerfully, I hope, realistic about the particular problems of complex fraud cases. I would like to think that the central proposal of the amendment takes what is already happening informally to a point where one would have competent juries dealing with the cases that need such expertise and experience. I beg to move.
I want briefly to comment on the proposal. The eloquence of the noble Lord's presentation of the amendment does not overcome its inadequacy as a proposal. I shall deal with it in four ways. First, good taste requires me to limit the kind of anatomical metaphor that might be appropriate, so I shall content myself with saying that the noble Lord has got it back to front. In his analysis, he accepted the present system as the norm. I vigorously challenge that. It should not be the norm. Why should we put up with trials that go on for months on end? Why should we allow lawyers to tell us that it is so complex that one can understand it only when one has looked at it for six months? It is absolutely ridiculous. We should change that system in favour of the jury. The example of America that the noble Lord gave merely illustrates the fact that if one is tough up front in regulatory control, one dramatically reduces the number of trials that are necessary for fraud.
I shall move to my second point. I did not follow it up with the noble and learned Lord, Lord Cooke of Thorndon, in the previous debate for reasons of time, but I reject his historical analysis. The passage of our democratic history in the 20th century, which led to ordinary people having the vote—emancipation—was matched by their having the right and duty to act as jurors. The history books on the law show that it was regarded as a great democratic advance that ordinary folk would judge as jurors. I am completely against, in a democratic sense, the idea of any kind of special jury.
The third point that I must regretfully criticise is the idea that the people on the panel of special jurors should be determined by a Secretary of State. I cannot believe that we would want to create a jury system in which those chosen were the product of government nomination to the panel from which they were chosen.
I thank the noble Lord for giving way. Perhaps I may relieve him of angst on this point. I am certainly not suggesting that. I am suggesting that the means by which the selection would independently be carried out would be laid down in the normal way by the Secretary of State, as it would be in many other parts of the Bill.
My legislative immaturity would be greatly advanced by an explanation of how the Secretary of State is to identify and organise lists of those eligible, without his being involved in a decision about who is on the list. No doubt, the noble Lord can amplify that if the amendment is pursued.
I turn to my fourth and final point, which is probably the most important of all in my critique. I am strongly against any accommodation in our debate about jury trials. Either one is for that system or one goes for a completely different approach. I would much prefer a judge alone to six special jurors. In making that remark, I do not see how the confidence of the public would be assisted by a system in which they saw the judgment of guilt or innocence in a fraud trial, from the City, for example, determined by people from the City. That would not produce the confidence that is essential.
The noble Lord must forgive me. I have been extremely harsh towards his suggestion, but for, I hope, good reasons. I admire his good intent. I simply suggest that, on this occasion, it is misplaced.
I thank the noble Lord for moving this amendment. I do so because he engages with the debate in terms of what we need to do to respond to the pressure placed on the system by the nature and extent of such cases. Therefore, I commend the noble Lord for attempting to enable us to have a discussion about where the proper boundaries may be.
Having said that, I am afraid I must say to the noble Lord that we do not consider these proposals to be workable. However, I understand that he put them forward very much in the spirit of the Committee stage—that is, to enable us to explore, discuss and hone, although it appears that we may be deprived of that advantage. I shall deal with this issue as quickly as I can.
The proposal put forward by the noble Lord suggests an alternative solution to the problems of dealing with long or complex fraud cases by giving the court the option to try complex and/or lengthy fraud and fraud-related trials before a "special jury" following applications from either the prosecution or the defence. As the noble Lord said, both Roskill and Auld considered, and rejected, that option. Therefore, I feel that I am probably in good company when I say that it is not necessarily attractive to the Government either. Perhaps I may say why.
The noble Lord, Lord Brennan, raised the question of the selection of juries. To the following extent, I empathise with what he said. The idea that the jurors serving on such cases essentially would be self-selected jury enthusiasts involves a significant departure from the principle that jurors are selected randomly from the population local to the Crown Court in question. The Government would need to be sure that the benefits of a special jury would outweigh the undesirability of compromising the principle of random selection. It is not at all clear that that would be the case.
There is no evidence to support the assumptions underlying the proposal that a special jury would be more competent than an "ordinary" jury or deliver better verdicts, or, conversely, that ordinary juries are doing a poor job. However, I very much take on board what the noble Lord said about the attempts that we have made in terms of the questionnaires to ascertain whether jurors have any conflict of interest. I also take on board the fact that the noble Lord said that, on a number of occasions, issues of literacy have been highlighted. That would obviously make some of the trials, which are heavily dependent on the consideration of detailed documents, a challenge for some jurors who may feel that they are thereby disabled from engaging fully in the process. Therefore, I hear what the noble Lord says in relation to that.
What the noble Lord, Lord Brennan, and other noble Lords said in the previous debate was also important inasmuch as the Government argue that all attempts to simplify fraud trials, in particular, and to make them as clear as possible should continue. Therefore, nothing that I said in relation to the previous set of clauses or, indeed, to this amendment should be misunderstood in that we do recognise that attempts to manage the process better must continue.
Although I understand the import of what the noble Lord seeks to do in relation to these amendments, we had come to the conclusion that the choice should be between a full jury and a judge alone. It is hoped that a judge alone would be able to make impartial decisions. Noble Lords will know that historically it was suggested that if interested groups were involved—for example, in relation to insider dealing issues—then it might be thought that, because it was a matter of common practice, it was therefore permissible. But, in fact, the judge must say, "It may be common but it is unlawful". Therefore, having heard from the defence about common practice and from the prosecution about illegality, a judge alone may be able to make such a distinction.
We understand why the noble Lord has tabled the amendments, but, for all the reasons that I gave previously, we do not believe that they meet the required needs. Therefore, we must consider the choice between a full jury and a judge alone.
I am most grateful for the contribution of the noble Lord, Lord Brennan, and for the Minister's careful summing up. I believe it is a common-sense proposition that in phenomenally complicated matters of law and fact, people of competence and some experience are needed to deal with them. I do not accept that we would be moving into the territory of what the Minister described as "self-selected jury enthusiasts". That certainly would not be the case. I believe that an irreducible complexity is involved in these matters, however well one manages the case. The noble Lord, Lord Brennan, may go on about what happens in America, but we are not in America; we are here. People have been trying to simplify fraud trials for years with little effect.
However, time is getting on. No one is supporting me. I am a thin-skinned fellow and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 132ZB to 132ZF not moved.]
[Amendment No. 132ZG had been retabled as Amendment No. 132ZDA on the Marshalled List.]
Clause 42 negatived.
Clauses 43 to 46 negatived.
Clause 47 [Further provision about trials without a jury]:
[Amendment No. 132ZH not moved.]
Clause 47 negatived.
Clauses 48 and 49 negatived.