Criminal Justice Bill

Part of the debate – in the House of Lords at 5:00 pm on 15th July 2003.

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Photo of Lord Donaldson of Lymington Lord Donaldson of Lymington Crossbench 5:00 pm, 15th July 2003

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.