Criminal Justice Bill

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

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Photo of Lord Mayhew of Twysden Lord Mayhew of Twysden Conservative 5:15 pm, 15th July 2003

I enter with diffidence these arcane discussions merely to try to draw one perception from Northern Ireland and, secondly, to offer respectful comment on the speech of the noble and learned Lord, Lord Cooke.

In Northern Ireland for the past 30 years, during what is still called the emergency, certain defendants charged with serious offences have, for very necessary and proper reasons, been denied a jury trial. The corollary of that has been that judges, whether at the High Court or at the county court sitting as High Court judges, have had to act as judges of verdict and of law. There cannot be the slightest complaint about how those judges have discharged that task. On the contrary, they have behaved heroically. To my knowledge, no serious criticism has ever been made of the integrity, the impartiality or the professionalism with which they have dealt with those cases.

However, the fact has always remained, and remains today, that there are two classes of trial for offences of equal severity. One class has been denied jury trial by reason of an association with the emergency, or a presumed association with it, and the other class has had jury trial. That has given rise to grievances and perceptions that have been very inimical to public confidence in the judicial system.

This debate seems to be about the necessity for confidence in the jury system. From Northern Ireland one can draw certain perceptions. The first is that, all things being equal, the people strongly prefer jury trial, for the reasons that have been so well disclosed today—they scarcely need more than a passing mention from me. Pace the noble and learned Lord, Lord Donaldson, people see juries as offering a bulwark against a bully.

I could add another case to the two that the noble and learned Lord recalls in which the jury has gone against the weight of the evidence and the weight of judicial direction and done what it believed to be right because it thought that the law, whatever it was, was not being enforced in a way that accorded with its sense of what was sensible, proportionate and right. I think, therefore, that people see juries as a safeguard against a bully. They certainly see them as an independent institution—the importance of independence is very topical. People prefer their fate to lie in the hands of their fellow citizens. Perhaps they should not, but they do, and I am not in the business of telling them that they should not.

The second perception to come from the Northern Ireland experience is that mandatory discrimination between one defendant on a serious charge and another and according jury trial to one and denying it to the other is certain to engender grievance and a suspicious perception. Therefore, there is something to be drawn from the experience in Northern Ireland that may commend itself to the Committee. I hope that it does.

Lastly, I would like to say, with great respect, how much I enjoyed the speech made by the noble and learned Lord, Lord Cooke of Thorndon. I believe that I may be the only Member of your Lordships' House present today to be able to claim that I have appeared before the Court of Appeal in New Zealand when the noble and learned Lord, Lord Cooke of Thorndon, was president. From then onwards, I have entertained the greatest respect for that court, for its then president and for the entirely respectable way in which it disposed of my Spycatcher litigation.

The noble and learned Lord, Lord Cooke of Thorndon, said that trial by jury cannot be put higher than a cherished institution and that it was not a fundamental right. I agree, of course. It was extremely interesting as well as helpful to learn of the ways in which the jury system has been modified and adapted in New Zealand. However, I am not arguing for an unchanged system of jury trial because to retain it is to retain a fundamental human right. I believe that we should retain it because it is what the people want, for the reasons that I have outlined. At the moment, the system has the people's confidence in a way in which the alternatives proposed in the Bill, in my judgment, do not.

People see the jury system as an institution that is well tried and well approved, and one that carries valued advantages that would be lost by the suggested alternatives. Its replacement has not been electorally demanded. I did not find my argument holed beneath the waterline by the speech by the noble and learned Lord, Lord Cooke—enormously impressive and interesting though it was.

I conclude by offering this reflection. In many jurisdictions that derive from common law and owe their origin to this country, there are all sorts of variations that have been found to be acceptable and congenial in those respective countries. I hope that I will not be thought frivolous to point out that New Zealand has a one-chamber legislature, which is not a precedent likely to commend itself to the Committee.