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.