Criminal Justice Bill

Part of the debate – in the House of Lords at 3:16 pm on 15th July 2003.

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Photo of Lord Hunt of Wirral Lord Hunt of Wirral Conservative 3:16 pm, 15th July 2003

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.