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.