Lords Amendment

– in the House of Lords at 3:12 pm on 19 November 2003.

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32 Clause 41, Leave out Clause 41 The Commons disagree to this Amendment for the following reason—

32A Because it should be possible for a defendant to apply for a trial to be conducted without a jury.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, I beg to move that the House do not insist on its Amendment No. 32 to which the Commons have disagreed for their reason numbered 32A.

These amendments deal with the issue of jury trial. I shall come in a moment to the amendments to Clause 42 which the Government made in another place yesterday and which respond to concerns raised by Her Majesty's loyal Opposition and those sitting opposite. First, however, I should like to set the wider context of this provision by explaining why it is in the Bill and why it is important that it stays there.

Fraud is on the increase. Technological advance, the growing sophistication of the market and the proliferation of financial instruments and products have created new opportunities for fraud. Its economic impact is huge. On latest statistics, fraud is costing the country about £14 billion per year, as against £1 billion in 1985. Therefore, I think your Lordships will agree that fraud harms us all. It affects individual savings, pensions, investments and jobs. It also has direct costs that impact ultimately on the whole of society.

Clause 42 addresses a particular problem within the wider fraud arena. It recognises and seeks to deal with a small—I repeat "small"—number of fraud and other financial cases where there are clear difficulties in conducting a trial by jury. Those difficulties are not abstract and theoretical but have been encountered in practice. The courts themselves have expressed the gravest concerns about the threat to justice inherent in making these kinds of case manageable for juries. That has long been recognised, as I think even those who oppose Clause 42 would acknowledge. The Roskill report on serious fraud in 1986, the establishment of the Serious Fraud Office and Lord Justice Auld's independent review are all evidence of attempts to respond to these difficulties over the past few decades. The case for change has commanded general support.

Considerable and, for the most part, successful—I wish to emphasise that—efforts have been made to try to help the courts in managing the trial process in such cases. The preparatory hearing regimes in the Criminal Justice Act 1987 and the Criminal Procedure and Investigations Act 1996 are working well. However, there continue to be a few exceptional cases—one must regard them as exceptional—that are so lengthy and/or complex that they stubbornly resist the best efforts of all involved to reduce the burden on the jury without imperilling justice. The need to meet the imperative of manageability for juries means that these trials are currently being carved up in a way that simply cannot be said to serve the interests of justice. They are divided into separate trials, evidence is pared down and charges reduced. Secondary defendants who should notwithstanding be prosecuted are not brought to justice.

Even in the event of a conviction, losses to the public interest and to confidence in the criminal justice system arise from the fact that the jury has been asked to reach a verdict on an artificially truncated version of the facts. The totality of the offending is not exposed; judges are unable to sentence on the basis of the full criminality and the public at large are never told the whole story. So justice, not least justice for victims, is not done.

Serious fraud trials can last for months. They place an excessive and unreasonable burden on the members of the jury. They also make it difficult to ensure a representative jury. Jury service is an important civic duty but there must be proper limits to the imposition that it is right to make on jurors' lives. Clause 42 requires the judge to ensure that all the options that would allow jury trial have been thoroughly tested. The threshold for non-jury trial is a high one, and deliberately so. Where it is necessary in the interests of justice looked at in the round for a case to be conducted without a jury we would ask, what possible case can there be for doing anything else?

A number of comments have been made, first, in relation to whether we are creating a two-tier system of justice. We are not. I remind noble Lords of what was said by the noble and learned Lord, Lord Cooke. I refer to his experience in New Zealand where this provision has been in existence for 20 years or so and has had no disadvantageous effect upon the availability of jury trial in normal cases. We believe that these provisions are appropriate.

Moved, That the House do not insist on its Amendment No. 32, to which the Commons have disagreed for their reason numbered 32A.—(Baroness Scotland of Asthal.)

Photo of Lord Hunt of Wirral Lord Hunt of Wirral Conservative

rose to move, as an amendment to the Motion that the House do not insist on its Amendment No. 32 to which the Commons have disagreed for their reason numbered 32A, leave out "not".

Photo of Lord Hunt of Wirral Lord Hunt of Wirral Conservative

My Lords, I should like to follow the example of the Minister in seeking to address the debate on the other amendments that deal with jury trials.

As probably several noble Lords did, I listened to the full debate on these Lords amendments in the other place yesterday. I was very concerned that the Home Secretary, Mr Blunkett, did not follow the example of the noble Baroness. He was very critical of this place. First, he said that we had not had a sensible debate. I recall that in July we had a very wide-ranging debate. Hugely important issues were raised and a number of noble Lords clearly expressed deep feelings of anger at any attempt to fetter the right to jury trial. To regard that as not a very sensible debate was not helpful. Indeed, Mr Blunkett said that we had scored a pyrrhic victory. Noble Lords will know that in 279 BC the Greek leader, Pyrrhus, scored a great victory over the Romans. I suppose that the analogy that Mr Blunkett used concerned the great cost of that victory. However, I am afraid that he was badly advised. I consulted the website of The Oxford English Dictionary and of Webster's. Mr Blunkett could hardly have failed to notice—although this must be another bid by him to appeal to the Left wing of the Labour Party—or he should have noticed, that there was a press release some weeks ago by the editors of The Oxford English Dictionary stating that the phrase "pyrrhic victory" was to be removed from the dictionary because, rather like this Government, it had outlived its usefulness.

Did Mr Blunkett know that, according to John Smytheton, chief editor of The Oxford English Dictionary, the phrase, "pyrrhic victory" is to be replaced with "Bush victory" in the next edition of The Oxford English Dictionary? Perhaps the Home Secretary was not up to date on that. However, he was also very critical of the fact that we do not have a Speaker or Deputy Speaker and that we have no means of timetabling our debates. In fact, the debate in the other place took one hour 45 minutes, of which Mr Blunkett took over 30 minutes. I counted another 12 speakers who were trying to get in. That is the evil of timetabling. Mr Blunkett said:

"There is no procedure in the House of Lords for any sort of timetable or closure mechanism, nor any provision for the operation of the Speaker and Deputy Speaker system . . . Until we have such a system in the Lords, we cannot take anyone's word that that House will be in favour of anything that we propose".—[Official Report, Commons, 18/11/03; col. 652.]

I hope that Mr Blunkett will regret those words. Those are the words of a senior Cabinet Minister so at least we know what this Government would have in store for us. However, we shall carry on having our high quality debates without timetabling.

On 15th July your Lordships decided to remove entirely from the Bill what was then Part 7. Now the other place insists that those clauses should be restored. I hope I speak for the majority when I say that we remain opposed to the Government's proposals which would allow a defendant to elect trial by judge alone, and those which would allow judge-only trials in so-called complex cases. We believe that allowing defendants to elect non-jury trial would be divisive and would create an unacceptable two-tier system. Defendants charged with offences attracting serious public opprobrium would opt out of the jury system; others would engage in forum shopping, hoping for a particularly liberal judge. I have to tell the Government that they are wrong. Similarly, we cannot accept the Government's proposals to do away with jury trial in complex and lengthy cases. Juries are perfectly capable of understanding the key issues relevant to guilt or innocence in such cases. It is a simple matter for the jury to decide whether someone is dishonest. That is its task, and it fulfils it extremely well.

There are other avenues whereby fraud trials could be made less complex and lengthy. I have a press release issued on 30th July 2002 by the Law Commission. It had been asked by Mr Straw to look into ways in which the law on fraud could be made more readily comprehensible to juries. That is a very simple task, but one that the Law Commission took some considerable time—more than four years—to fulfil. It came forward with a draft fraud Bill, which would certainly simplify the law on fraud. I have asked the Home Office and the Library what has happened to the Law Commission's proposals, why there has been no comment from the Government on the proposals, and why on earth we are suddenly seeking to tamper with the jury system without having properly considered the fraud Bill. I hope that the Minister responds.

The Government propose to do away with juries in any case in which there are complex or lengthy issues of a,

"financial or commercial nature or which relate to property", so many more cases will be affected than the Government have claimed. The proposal is not related simply to complex fraud trials, but could affect all sorts of cases, from drug dealing to health and safety prosecutions. I hope that the Minister will understand when I say that we cannot accept the Government's proposals on defendant election and complex and lengthy cases.

This House has come to recognise the force of the arguments made in relation to jury tampering. We on these Benches and the Opposition in another place have reflected long and hard on what was said in this House on 15th July, and on what was said outside Parliament, most notably by Sir John Stevens, the Metropolitan Police Commissioner. I hope that your Lordships will recall that I said on that occasion that,

"we have much sympathy with the police if indeed, as the Deputy Commissioner revealed in a letter to The Times today, this problem is growing. Let us look at the details and consider what it is best to do".—[Official Report, 15/7/03; col. 773.]

One way forward to attempt to tackle jury tampering was suggested by my honourable friends in another place in May. Intimidation of juries is an evil that has to be stopped, but so does intimidation of the judge, of witnesses and of parties. We all agree that that evil has to be stamped out.

The noble and learned Lord, Lord Donaldson, said in our previous debate—I will not quote him in full—that he had been persuaded that there had to be a way forward. We have listened to the arguments and have been persuaded that, where a trial has had to be aborted because of jury tampering, it should be open to the judge to order that any retrial should be before a judge of the Crown Court alone, sitting without a jury. That was the proposal put forward by Mr Letwin in another place on 19th May, and the opposition amendments would preserve the right of everyone charged on indictment in the Crown Court to have a jury trial in the first instance.

We do not subscribe to the idea that it would be desirable to dispense with jury trial completely in some cases, which was the original proposal in the Bill. However, we accept that if someone has abused the right to a jury trial by seeking to pervert the jury's verdict, it should be open to the judge to prevent that happening a second time. There would, of course, be an appeal against the judge's decision under our proposals.

The essential principle is that justice must be done. For those who abuse the right to jury trial and seek to pervert the system in their favour, we have been persuaded of the case for change. Having said that, we remain opposed to what the Government seek to do. We remain committed to the fundamental principle of ensuring that every defendant in the Crown Court has the right to a jury trial in first instance. That remains our position, but we accept the force of the arguments made in relation to cases where jury tampering has taken place. However, so far the Government have not come forward with proposals that we could accept.

Moved, as an amendment to the Motion that the House do not insist on its Amendment No. 32 to which the Commons have disagreed for their reason numbered 32A, leave out "not".—(Lord Hunt of Wirral.)

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat 3:30, 19 November 2003

My Lords, we on these Benches support Amendment No. 32B. Everything that could be said on this topic has been said in the days in Committee and on Report. The fact that Mr Blunkett made the comments referred to by the noble Lord, Lord Hunt, demonstrates that he has as much understanding of this House and the way in which we consider matters as he has of the criminal justice system.

The noble Baroness seemed to think that it should be put on the debit side that the prosecution in a complex case simplify issues and pare them down. I do not regard that as something wrong in any way. It is very important that the public understands what a case is about. When we get to a situation in which there is a private conversation between lawyers in a criminal case—the prosecution, the defence and the judge—and when it is only the judge who can understand what is going on and members of the public cannot, it will be a bad day for the criminal justice system of this country.

I put that in the context that public confidence in the jury system remains as high as ever. The proposals are not put forward in a climate in which the public is calling for change in the area. The verdict of a jury, whether guilty or not guilty, commands respect and acceptance. The longer that that stays with us the better. I do not intend to weary your Lordships any further with the amendment. We will support it.

Photo of Lord Borrie Lord Borrie Labour

My Lords, Clause 43 gives the prosecution the possibility of asking for a judge-only trial, provided that certain conditions are satisfied relating to the burden that there would be on a jury, if it were a jury trial, and to the complexity of the facts. It has been said, particularly by the noble Lord, Lord Hunt, that if there is any difficulty in the jury comprehending the details of a fraud indictment, the case should be simplified because juries certainly understand the difference between honesty and dishonesty. There are dangers in that, however, as my noble friend pointed out, if the details of the prosecution case are withheld from the jury. If it does not get, receive or hear evidence about the details, the full force and strength of a prosecution case may be diminished.

I shall dare to repeat what may have been mentioned in Committee. The Government's White Paper, Justice for All, stated in 2002 that,

"prosecutions often pare down cases to try and make them more manageable and comprehensible to a jury. This means the full criminality of such a fraud is not always exposed".

Perhaps I may raise a point that has not yet been raised today. Who actually constitutes the jury in these complex cases? Is it really randomly selected? In the Maxwell case, 700 jurors were called and 550 were excused. Juries in these complex cases are likely to be less representative of the general community than in the norm of criminal trials, and they are unlikely to be peers of the people sitting in the dock. I fear that the jurors called who are not excused may be least likely to have experience of accounting or business. People running their own businesses and people with significant positions in industry and the professions are most likely to be excused jury service.

I fear that not enough was said during earlier stages of the Bill about the length and difficulty of some fraud cases. The Maxwell case, to which I referred, began in May 1995 and lasted until January 1996. It resulted in an acquittal to defraud the Maxwell pensioners of £122 million. The jury took 12 days to reach its verdict. It had taken 131 trial days and the cost was reported as being about £20 million.

In November 2002, The Times reported the acquittals of certain businessmen, the chairman of a company and finance directors who had been charged with fraud—

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, is the noble Lord saying that those accused of the Maxwell fraud are guilty and the jury got it wrong?

Photo of Lord Borrie Lord Borrie Labour

My Lords, I would not have the impertinence to draw any such conclusion. I am talking about how lengthy such cases are and how difficult it is to find jurors, particularly those with experience of business, to sit for the number of days required in order to determine the matter.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat

My Lords, is the noble Lord suggesting that judges should have experience of accountancy and business?

Photo of Lord Borrie Lord Borrie Labour

My Lords, frequently they have and they can certainly understand more readily than many of us what is explained to them. I do not want to lengthen the debate, so perhaps I may put in parenthesis the fact that I would prefer a system whereby the judge sat with assessors who were particularly knowledgeable of finance and so forth. That suggestion is not before us in the Bill. There should be jury trials in every case or, alternatively, the possibility of requesting that it be a judge-only trial. That possibility, subject to conditions and to appeal as provided for in the Bill, deserves the support of Parliament.

In conclusion, it is worthwhile drawing attention to an article which appeared in the Financial Times two or three days after our debates in Committee by a former head of the Serious Fraud Office, Miss Rosalind Wright. She suggested what were the advantages, at any rate in some cases, of trial without a jury. She mentioned that the judge,

"could read the documents in advance of the trial and cut through the swathes of paper in the courtroom; he could ruthlessly limit cross-examination and speeches; he could give a reasoned judgment at the conclusion of the proceedings"— juries, of course, never give reasoned judgments—

"which would assist both prosecution and defence in understanding how the verdict was arrived at", and no doubt be of assistance as a precedent in later cases.

There is a strong case for allowing the Commons view to prevail—that there should be a possibility of asking for a trial by judge alone—and I hope that we will not persist in this House in continuing opposition to that.

Photo of Lord Morris of Aberavon Lord Morris of Aberavon Labour 3:45, 19 November 2003

My Lords, I regret that I was abroad when the House last discussed juries. The House will be cheered that I will not repeat the arguments used on that occasion. The debate has been broadened by the Opposition into some observations which appertain to the next clause and it may be convenient if I deal briefly with both.

First, I am fundamentally opposed to tampering with the right to trial by jury—either at the instigation of the prosecution or the defence. Secondly, although I cannot go into the Lobby to support the Government, I accept with regret that at this juncture the views of the elected House must prevail.

As a practitioner in criminal law all my working life, save for the 13 years as a Minister and a senior Law Officer of the Crown, I believe that in the overwhelming number of cases the jury system in England and Wales works with young or old jurors, short or long trials, simple or complicated trials. That has been my experience most of my working life.

Since 1972, when the Criminal Law Revision Committee reported, there have been repeated attempts in one direction or the other to limit jury trials. In each case, one or other House of Parliament has resisted such attempts.

The Government have rightly watered down their original proposals in Clause 42. Their original proposals were unsustainable. There remains the only part of reform where I have a real sympathy for such trials which are really burdensome to jurors.

The longest criminal trial in which I was involved began in February and finished in September. All of us felt the burden. But is this enough for a change? I welcome Clause 42(6), respelling the duty of the judge to reduce complexity or length. A more active judicial role is to be welcomed. The Court of Appeal from time to time has dealt with the question of overburdening the indictments.

But before the House embarks on this unhappy part of the legislation, perhaps I may quote what was written a long time ago—more than two centuries—by Blackstone in his commentaries. He stated:

"The truth of every accusation . . . should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours, indifferently chosen, and superior to all suspicion. So that the liberties of England cannot but subsist, so long as this palladium remains sacred and inviolate; not only from all open attacks (which none will be so hardy as to make)— he did not reckon with Mr Blunkett—

"but also from the secret machinations, which may sap and undermine it; by introducing new and arbitrary methods of trials by justices of the peace, commissioners of the revenue, and courts of conscience. And however convenient these may appear at first (as doubtless all arbitrary powers, well executed, are the most convenient), yet let it be again remembered, that delays, and little inconveniences in the forms of justice, are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concern.".

I commend those remarks. If we are to go down this road, I hope that Blackstone's Commentaries will be remembered when we next discuss it.

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

My Lords, the noble Lord, Lord Hunt, will have very successfully curdled the blood of the House by reciting some of the comments made by Mr Blunkett in another place about your Lordships' House. If Mr Blunkett considers it necessary that we have a Speaker in this House in order that the Government may get their way, I should have thought that he will have fairly conclusively decided for this House how it will feel about that. I am very pleased to see that the noble and learned Lord, Lord Lloyd of Berwick, is in his place to hear those views so that he may take them into account in his committee.

The noble Lord, Lord Hunt, and others, have made a very powerful case for the right to a jury trial. But surely the amendment currently before the House—Amendment No. 32—concerns the question of the defendant's ability to abandon that right. Surely it is a corollary of every right that one is entitled not to exercise it. I have to confess that I find the noble Lord's case on that amendment far weaker than his case on the others, where the right is being taken away from the defendant rather than being voluntarily surrendered by the defendant. If the noble Lord is minded to test the opinion of the House, I wonder whether he will consider it more appropriate to test it on the later amendments, where the right is taken away, rather than on the defendant's right to surrender his right. At present, I cannot understand the objection to that.

Photo of Lord Renton Lord Renton Conservative

My Lords, I support what the noble Viscount has just suggested. In Committee, I mentioned an immensely complicated fraud case which lasted for five weeks. By the time the case had gone on for two or three weeks, the jury, which largely consisted of not very well educated people, did not have a clue what was going on. Therefore, I feel that a degree of flexibility in this matter is necessary. If the defendant wants a jury, he should have it. But if he feels that he is not obtaining justice with the aid of a jury, a jury should no longer be inflicted on the court.

Photo of Lord Davies of Coity Lord Davies of Coity Labour

My Lords, I know that it is rather dangerous for someone who has not been directly involved in the judiciary to trespass on this debate. Nevertheless, I sometimes think that those closely involved do not see the wood for the trees.

The noble Lord, Lord Hunt, was very critical of my right honourable friend the Home Secretary in regard to a pyrrhic victory. I am not sure what point was being made, although he referred to the Oxford Dictionary. But I believe that the general understanding is that a pyrrhic victory does not have very much value.

I believe that if we want justice to prevail, our legislation must ensure that that happens. Having considered this matter, the Government found that some fraud cases are rather prolonged, generally organised crime is involved and no one supports the culprit. We want to preserve the protection of the victim. Consequently, the law enforcement associations in this country support what the Home Secretary is putting forward. I do not want us to enter into an academic judicial argument of principle when the practical application should ensure that justice prevails in this country. The British people should be supported by a system which ensures that the guilty are, in fact, convicted. I hope that this House will support what the Home Secretary is doing.

Photo of Lord Ackner Lord Ackner Crossbench

My Lords, I want to make one or two short interventions on this matter. Reference has just been made to the right to surrender the right to a jury in complex cases. If that right is given, why should it not apply to all cases? That, indeed, was one proposal in the Bill. The answer was simply that if there is a right in all cases, when the jury sit in a jury case, in a number of cases they will say, "Why hasn't he chosen a judge alone? This surely means that he is trying to pull the wool over our eyes". Largely for that reason, the proposal was rejected and, I believe, rightly so. I believe that we should have a trial process which is appropriate throughout.

My second point is that the percentage of success in long fraud cases was quoted as being, I believe, in the region of 80 per cent. I stress that that figure was achieved without the procedure alterations which have been advised and to which the Government have paid no attention at all. There is no reason not to expect that the figure of 80 per cent will increase if the procedures are improved. Therefore, I suggest to your Lordships that the amendment is not appropriate and that we should stick to juries throughout.

Perhaps I may remind your Lordships that jury trial carries the perception of a better class of justice—certainly with the minorities. That perception will not be brought to an end. It is based in part on sheer prejudice but also in part on the fact that judges subconsciously have a bias pro prosecution. That is understandable. At least 90 per cent of prosecution cases have been thoroughly investigated and proceedings brought as a result. The judge becomes case-hardened and says to himself, consciously or subconsciously, "I have heard all this before". That is one reason for the perception. But the perception is there; it is very strong; and we ignore it at our peril.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, I have listened with great care to everything that noble Lords have said. I was a little surprised by the lack of temperance on the part of both the noble Lords, Lord Hunt and Lord Thomas of Gresford. Noble Lords will know that, on occasions too numerous to mention, I have commended your Lordships' House for the dedication and thoroughness with which it has addressed these issues. But perhaps I may say with the utmost gentleness that I do not consider the way that the issues relating to juries were dealt with necessarily have been your Lordships' finest moment.

This House has had a tradition of scrutinising Bills thoroughly and well. First, we debate them extensively in Committee. It is our custom to use the Committee stage for that purpose. We discuss Bills clause by clause, often examining the pros and cons of each and every comma and word in the clauses. However, we did not give Part 7 of this Bill our customary care. Your Lordships will know that we had one long, extended and very full debate, after which the whole of this part of the Bill was struck down. We thus deprived ourselves of our usual opportunity for detailed scrutiny. That is something which, speaking entirely for myself, I deeply regretted.

One of the joys of going through a Bill—a joy it is on occasion, although not always—is that we are able to debate together with great particularity how we should weigh one element of a Bill against another. After that, on Report, we usually craft something which we can then go on to divide upon where we disagree. Before we congratulate ourselves too much, it is right that we should have the humility to accept that in dealing with Part 7 we did not do that. Some noble Lords will say that thereby we did not do our duty, so I deeply regret the failure of this House to engage in detailed and constructive debate on these provisions.

Photo of Earl Russell Earl Russell Liberal Democrat 4:00, 19 November 2003

My Lords, is the Minister making a virtue of the fact that the Bill suffered from a lack of defenders?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

No, my Lords. It did not suffer from a lack of defenders, but this part of the Bill suffered from a lack of scrutiny. We were entitled to undertake that scrutiny because we believe that it would have advantaged the House to be able to hear the detail.

I turn to the questions raised specifically on Amendment No. 32 to which the Commons have disagreed for their reason numbered 32A. I agree that it is somewhat curious that those who support the right to jury trial—among others, the noble Lords, Lord Hunt and Lord Thomas of Gresford, did so—say that they wish to deny the defendant the right not to have a jury trial. That is an odd arrangement.

I appreciate that in my opening I conflated the two amendments. In due course I shall deal with Amendment No. 42 in its proper place by addressing our amendment.

The noble Lord, Lord Borrie, is right to point to the issues of complexity and length in trials. I respectfully agree with him. The noble Lord, Lord Thomas of Gresford, asked about the special ability that the judge has. The noble Lord knows that, if there is a particular need, it is usual for the Lord Chancellor or the list office to alight upon a judge who may have the type of experience, through practice or through sitting in a certain division—the Commercial Division judges are not unfamiliar with commercial and other frauds—that makes him or her more suited to dealing with certain trials. That is an advantage.

I turn to my noble and learned friend Lord Morris of Aberavon. Without reservation I say to him that we too greatly value and respect the jury system. The noble and learned Lord will remember that each time there has been an encroachment on jury trials, there has been an outcry that that will mean the end of the jury. The noble and learned Lord will remember the tears that were shed for the loss of peremptory challenges. No longer would we be able to challenge jurors when choosing a panel. The noble Lord will remember the tears shed in relation to the abandonment of unanimity and the move to majority verdicts. That was supposed to signal the end of jury trials as we know them. Juries are still with us.

The arguments made in relation to this part of the Bill were also made, as I understand from the noble and learned Lord, Lord Cooke, in New Zealand. People in New Zealand thought that such measures would mean the end of the system as they knew it. But the provisions have rarely been used and they have been targeted on those cases that really need them. Further, the judge retains a discretion about whether the provisions should be used.

I am curious and somewhat taken aback by the hostility aimed at Clause 41, because it gives defendants a choice that they do not have at present about the way in which they are tried. We find it puzzling that noble Lords opposite are so vehement in their defence of a defendant's right to choose one context, but should oppose this reasonable right. We shall stand firm on the matter.

We also intend to stand firm on the other provisions in Part 7 which deal with those who seek to manipulate the system to evade justice. Clauses 43 and 45 provide an effective and a proportionate solution to the increasing problems of jury tampering and Clause 42, to which I have already spoken and to which I turn again briefly, does that too. New Zealand is not alone in benefiting from using these provisions. I am sure noble Lords are aware that they are also used in the United States, Canada and Australia. We do not seek to do anything that is terribly novel.

I have not dealt with the comments made by the noble and learned Lord, Lord Ackner. We are not pulling the wool over anyone's eyes. We are being absolutely frank about what is happening. My noble friend Lord Davies of Coity is right to say that we have to be realistic when considering how the provisions will be viewed and that members of the public who will be asked to participate in these trials will be very concerned about the extent of the duty that they will be invited to undertake. I am gratified to hear the acceptance by the noble Lord, Lord Renton, that such fraud trials can be long, very difficult and complex. His experience is that on occasion jurors are not able to deal with them appropriately or at all.

The noble and learned Lord, Lord Ackner, raised the issue of the Serious Fraud Office and its conviction rate. This matter is not about conviction rates. We do not seek to raise the conviction rates in this regard. These provisions attempt to address real problems in trying to manage certain fraud cases. The conviction rate reflects not the difficulty of rendering such cases manageable for jurors but the damage that is done to the public interest when it is not possible to try defendants on charges that truly represent the extent of their alleged offending. That was a matter underscored by my noble friend Lord Borrie.

Perhaps I can explain the purpose of the government's amendments.

Photo of The Earl of Onslow The Earl of Onslow Conservative

My Lords, if the Minister is saying that these provisions will not affect the conviction rate, that means that we are getting matters roughly right. If we are getting matters roughly right, why alter the situation?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, your Lordships will remember that the Serious Fraud Office has made it plain that there are cases that it chooses not to bring before the courts because of their complexity, length and difficulty. Already a sifting process is taking place. We wish to see all those cases that should properly be brought to court, brought to court. In speaking to the amendment earlier I said that the Government were concerned about cases in which there were secondary participants against whom proceedings were not taken in order to enable the case to go forward. That is not justice and we should be able to deal with the principal and the subsidiary aiders and abettors.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Liberal Democrat

My Lords, has the Serious Fraud Office told the noble Baroness how many cases it has not brought to court because of complexity? She says that there have been such cases so I ask how many.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, I do not have the numbers. I see the noble Lord shaking his head. I do not know whether he suggests that that is not a problem or a difficulty or whether he suggests that this matter is being fabricated.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Liberal Democrat

My Lords, the noble Baroness made an assertion that we are entitled to assume was evidentially based. I merely ask her to give the House that evidence.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, I am certainly willing to write to the noble Lord setting out those matters. These are Commons amendments.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Liberal Democrat

My Lords, the noble Baroness says that she is willing to write to me, which is extremely kind of her. Is she willing to write me with that information before the Bill returns to the House later today?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, the noble Lord knows the answer to that question: I shall use my best endeavours. I hope the House accepts that on each occasion I have given such an undertaking, that is precisely what I have done. On no occasion when a question has been asked of me have I not sought to comply with it in its entirety. I hope that the House will accept that I have treated all Members with the utmost courtesy and care.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Liberal Democrat

My Lords, I am not suggesting for one moment that the noble Baroness has not treated the House with courtesy, but she made an assertion which is evidential. I do not ask her to write to me; I simply ask her to give the House the evidence.

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Government Whip

My Lords, perhaps I may remind the noble Lord, Lord Carlile, that it is the speaker's choice to give way. My noble friend has given way on, I think, five occasions. The noble Lord has had an answer to his question. I sense that the mood of the House is that the matter should cease at that point.

Photo of Lord Davies of Coity Lord Davies of Coity Labour

My Lords, I have absolutely no doubt whatever that my noble friend's statement can be substantiated. What is more important to this House on the question asked by the noble Lord, Lord Carlile, is whether the noble Lord's view would change if the answer is confirmed.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, the Government's amendments respond to concerns about the possibility that Clause 42, as currently drafted, risks widening the potential application of the clause to cases which are not akin to fraud. That matter has been raised on a number of occasions. The Government have therefore thought very carefully about how to craft Amendment No. 42. They accept that the danger of cases slipping through which are not akin to fraud is in fact negligible.

The reference to,

"of a financial or commercial nature or which relate to property", is one element only of a deliberately high and cumulative test. None the less, we have listened and we have amended Clause 42 to restrict its application fairly and squarely to serious fraud trials, which is the main mischief to which the clause was directed.

Let me emphasise that in the light of the comments made in another place, these amendments in no way serve to fetter the discretion of a judge. That is certainly not the intention, nor, I respectfully suggest, is it the effect. The judge will continue to need to satisfy himself that the condition in subsection (4) is met regarding the length and/or complexity of the trial. He will also need to have regard to any step which could be taken to reduce the length and/or complexity of the trial. Your Lordships will find that set out in subsection (6).

I hope that in the light of these amendments the House will be able to reconsider its decision.

Photo of Lord Elton Lord Elton Conservative

My Lords, before the noble Baroness sits down, will she undertake to send a copy of the moving and restrained prologue to her speech—in which she summarised how your Lordships deal with matters of this kind and reflected on any failure to do so—to the Home Secretary before he next talks about the advantages of the guillotine system?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, I can only reassure the noble Lord that my right honourable friend the Home Secretary is assiduous in his reading and absorption of the matters that go on in your Lordships' House. I am sure that he will have the advantage of looking at Hansard. I make it plain that we shall deal first with the amendments regarding Clause 41. In the next group I shall move the amendment on issues relating to fraud.

Photo of Lord Hunt of Wirral Lord Hunt of Wirral Conservative

My Lords, I start by thanking the Minister for the courtesy with which she has always listened to debate in the House. She has always given way. I intervened only when I thought she had finished. The House pays her every possible respect for the graciousness with which she approaches these debates; it does not mean that we always agree with her.

I do not think that the House would want me to answer all the points made. However, I should like to deal with the point on Clause 41. There was an extensive debate in the other place on that clause. I say to the noble Viscount, Lord Bledisloe, and to my noble friend Lord Renton that I thought that the point was adequately dealt with in that debate. Perhaps I may quote the words of the Labour Member of Parliament, Vera Baird. She went into all the reasons why the opt-out should not be allowed. She then remarked that if her right honourable friend the Home Secretary was concerned about safeguarding the principle of jury trial,

"he cannot allow it to become optional. Once it becomes optional, the reasons why the option is exercised will bring the principle into disrepute. That is the slippery slope on which we are starting today with clause 41".—[Official Report, Commons, 18/11/03; col. 674.]

I hope he will accept that I thought the noble and learned Lord, Lord Ackner, made a very persuasive series of comments on that issue.

I should like to spend time dealing with other points, but I think that we are willing to proceed to a decision. All I would say in conclusion is that I believe Mr Blunkett has under-estimated the reasons why we feel so strongly that these clauses should not form part of the Bill. They should in fact have been in another Bill—a mode of trial Bill. That has always been our case. We then could have had the proper research into the jury system that we should have before we start restricting the principle.

I close by quoting Lord Devlin, who said that trial by jury is,

"the lamp that shows freedom lives".

In this House that means a great deal. I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 32B) shall be agreed to?

Their Lordships divided: Contents, 196; Not-Contents, 125.

Division number 1 Private Parking: Ports and Trading Estates — Lords Amendment

Aye: 194 Members of the House of Lords

No: 123 Members of the House of Lords

Aye: A-Z by last name

Tellers

No: A-Z by last name

Tellers

Resolved in the affirmative, and amendment agreed to accordingly.

Motion, as amended, agreed to.