Criminal Justice Bill

Part of the debate – in the House of Lords at 4:00 pm on 15th July 2003.

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Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour 4:00 pm, 15th July 2003

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.