Criminal Justice Bill

Part of the debate – in the House of Lords at 5:30 pm on 15th July 2003.

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Photo of Lord Brennan Lord Brennan Labour 5:30 pm, 15th July 2003

To serve on a jury is an act of citizenship and citizenship is best understood within the history of the country in which it is being exercised, which for these purposes, is England and Wales. One can fairly say about the concept of citizenship in our country that it involves the right to have rights and the duty to perform duties. A jury trial exquisitely and democratically combines those two aspects of citizenship—one's right to be tried by one's fellow man and one's duty to participate in that process when called upon so to do. It is no doubt because we regard that as a fundamental value that the Government have included in this Bill the requirement for practically everybody to serve on a jury, whatever excuses people may try to put forward. What better vindication of its fundamental value in our society could we have than that provision?

Within our country such a value is not a myth, it is a reality: it is not sentiment, it is belief. The noble and learned Lord, Lord Mayhew of Twysden, was correct. We are not talking about human rights. We are talking, if the phrase is not too pretentious, about a fundamental value in which we have confidence. If that value is to be altered in legislation, it must be justified by serious, intelligent and convincing evidence and argument.

Many noble Lords on these Benches regard this Bill as an effective challenge to crime. Generally speaking, I accept the proposals about disclosure and double jeopardy. However, I stand firm on jury trial for the following reasons. First, on the provision in favour of trials without juries in long and complex cases, the Home Secretary himself said today or yesterday that he does not contend that juries cannot understand the evidence in such cases. If that is correct, the only concern that remains is the question of the burden upon the members of the jury who are asked to serve. Let us remember that all jurors are asked whether they are able to sit. If they have a reason not to, it is judicially considered. In all long cases juries sit as citizens throughout the process. We should not be concerned about the convenience of a particular juror when we are dealing with a fundamental value.

In this first sector of serious crime—usually fraud—I am for getting tough on fraud, but not for getting tough on the jury system. We are hopelessly weak in our attack on white-collar crime. I will briefly repeat the points that are obvious to us all. We do not have an organisation such as the SEC—the Securities and Exchange Commission—in America that pursues people early on and makes them pay massive fines to get out of a trial. We do not do that here. When people are brought to trial under the provisions of this Bill, there will be disclosure provisions that require defendants fully to explain the nature of their defence. With such a power of disclosure in the court, is it beyond the wit of the judge so to organise a fraud trial to crystallise the issue, require it to be phrased in plain English and restrict the number of counts before a jury? Of course it is not.

We are becoming hypnotised by the system that we have used for so long. Case management, a single offence of fraud, or any such ideas have not yet been properly tried. Until they are, I stand with the jury. What is the alternative that we glean from the material around the Bill? The Serious Fraud Office is seriously suggesting, if I have read correctly, that it could produce yet more complex prosecutions if a trial could be before the judge alone. Such trials would undoubtedly take longer and be more expensive. They would require the judge to produce written reasons and would certainly not assist justice. On the question of serious long cases, if we vote for this system, we suffer a real risk of institutionalising in our society enormously long, complex and expensive cases, as if that were our way of doing justice. It is not.

My second point concerns jury tampering. My noble friend Lady Scotland, no doubt acting on the material given to her by her advisers, is reported to have said in one of today's newspapers that it is almost impossible to guarantee the security of jurors at present. It is an astonishing state of affairs in a mature democracy that we cannot secure the safety of jurors in our criminal process. However, we should add that neither can we guarantee the safety of witnesses, nor that of a prosecutor and, according to one of the examples given in some of the briefing material, not even that of a judge. There was an example a while back of a defendant seeking to get out of a case by planting into the judges telephone records a totally bogus call said to have taken place between the judge and the defendant, which was then used as an argument for getting out on appeal. It is simply wishful thinking to say that, because we can do without a jury, the system is bound to work. It is not necessarily so.

Is the priority to protect jurors, witnesses and prosecutors, or is it to tinker with the jury system? It would be an unhappy result if we were to pass the clause and it became a fact of life in this country that we could not guarantee the security of jurors. Can it be done? America proclaims the value of the jury system in a society in which crime has been far more organised, sustained and ingenious than in this country. On that ground, I stand for the jury.

Lastly, there is election by the defendant. In Clause 41, there is a considerable exercise in illogic, no matter how felicitously phrased, for several reasons. First, there is no guidance as to the circumstances in which a defendant may seek trial by a judge, instead of a jury. Other than the given exception, there are no indications of the standards that a judge is to apply in deciding whether to allow trial by judge alone. That is how the Bill stands. What will it mean, if we have such election? Surely, it means—implicitly, if not quite explicitly—that there are grounds in our democratic society to doubt the justice of a jury trial. We cannot have it both ways: we are either for the system, or we declare ourselves to have lost confidence in it.

The irony of Clause 41 is well demonstrated by the fact that it provides that a case in which a servant of justice is charged with an offence the nature of which appears to bring into disrepute or prejudices the administration of justice is the type of case for which we are likely to need a jury. Is that logical?

On election, tampering and fraud, I say, "Stand by the jury". However, I do not say, "Do nothing"; I say, "Do plenty—to get rid of the problems that are said to found the reasons for the change". If we have to vote at the end of our considerations today, the question will be whether we are convinced that it is a necessary step. Are we convinced, not only personally, but because we think that the majority of the community would agree with such changes in the jury system? I do not think that they would. One need not be a lawyer to make the analysis that I have just made; one must be a citizen who believes in jury trials. I do.