Lords Amendment

– in the House of Lords at 4:42 pm on 19 November 2003.

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34 Clause 43, Leave out Clause 43 The Commons disagree to this Amendment but propose the following Amendments to the words so restored to the Bill—

34A Page 29, line 26, after second "is" insert "evidence of a"

34B Clause 43, page 29, line 37, at end insert—

"(7) The following are examples of cases where there may be evidence of a real and present danger that jury tampering would take place—

(a) a case where the trial is a retrial and the jury in the previous trial was discharged because jury tampering had taken place,

(b) a case where jury tampering has taken place in previous criminal proceedings involving the defendant or any of the defendants,

(c) a case where there has been intimidation, or attempted intimidation, of any person who is likely to be a witness in the trial."

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. 34 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 34A and 34B to the words so restored to the Bill.

I come now to Clause 43 which, together with Clause 45, is concerned with the serious and persistent problem of jury tampering. The background to these provisions is the increasingly sophisticated and determined attempts that are made in our courts to interfere with the course of justice by tampering with the jury. When the nature and extent of jury tampering threatens the fairness of the trial, the courts currently have no option other than to discharge the jury and terminate the trial, which clearly does not serve the interests of justice. Nor can we possibly expect members of the public who have given up their time to serve on a jury to undergo the stress and anxiety of actual intimidation, a genuine fear of intimidation or the misery of round-the-clock surveillance over a significant period of time.

Clauses 43 and 45 together provide a strong and effective deterrent to those who would seek to wreck trials and subvert due process by tampering with the jury. They send out a clear message that attempts to pervert the course of justice in that way will not be tolerated. Far from undermining the jury, the proposals will protect its integrity. I emphasise that the clauses are intended as a last resort. Jury protection measures will be appropriate and effective in most cases when there is a risk of tampering. I also remind the House that the test for jury exclusion in these circumstances is a high one, and deliberately so: we anticipate that only a handful of cases each year will meet it.

Police protection is available when the court considers that there is a substantial risk that the jury may be subject to intimidation. In the most serious cases, 24-hour police protection may be ordered, with officers accompanying jurors to their homes and other places outside the court. Over the past three years, that level of jury protection has been provided in approximately four to five trials per year. The cost to the Metropolitan Police over the past two years for full jury protection has been £9 million. That is equivalent to 26,627 police days a year diverted from mainstream policing in London, or an additional 130 officers on the beat.

Increasingly, however, organised and sophisticated criminals are able to intimidate jurors despite protective measures, including full police protection. Jurors' mail, telephone calls and bank accounts are, quite rightly, not vetted. Nor are members of their family protected. Current protection arrangements cannot prevent approaches by means of telephone calls, letters, bribery or attacks—or threatened attacks—upon family members. Clauses 43 and 45 are designed specifically to deal with situations that the existing measures cannot satisfactorily address.

Questions have been asked on a number of occasions, within and without this House, about the extent and seriousness of the problem of jury tampering. As far as seriousness is concerned, I have already referred to the four to five cases each year that require full jury protection. The Association of Chief Police Officers recently reported evidence of an increasing problem of jury tampering. Chris Fox, its president, wrote about this issue on 27th October describing,

"a clear picture of an ominous and growing problem", which is, moreover, increasingly not confined to London and other big conurbations such as Liverpool, but in evidence throughout the country.

If serious jury tampering is allowed to continue and allowed to succeed unchecked, the outlook is grim. In a letter to my noble and learned friend the Lord Chancellor, Ian Blair, Deputy Commissioner of the Metropolitan Police, and John Burbeck, head of criminal justice at ACPO, outlined their fears of the possible consequences in the following way:

"There is a tier of criminals in this country who are prepared to go to any lengths to evade justice. It is a fact that jury intimidation exists as a consequence of those people. If the current system cannot cope with the threat, and if the system is not improved, there will be a group of violent, sophisticated and dangerous criminals who may truly become untouchable".

A few recent examples make the point all too vividly. In August 2002, at Liverpool Crown Court, the trial of six defendants for serious drug offences collapsed because of jury tampering. Two jurors were threatened and a third juror was offered £10,000 to return a verdict of not guilty. The trial was in its fifth week and is estimated to have cost in excess of £1 million. In autumn 2001 at Kingston Crown Court, jurors hearing a case had their cars sprayed with paint stripper. The jury was discharged and special protection was given to the retrial jury. During a trial in the west Midlands in July 1999, in which several witnesses were physically assaulted, three members of the jury were threatened on their way home from the court. The jury foreman was approached by a man who gestured that he was going to shoot him. Those are not fanciful cases; they are real, pressing and pernicious.

We have said, throughout the passage of the Bill, that we would welcome constructive suggestions for improving it. It is with great regret that I say that they have not been forthcoming in the way that we would have liked in relation to Part 7. None the less, the Government moved amendments to Clauses 43 and 45 when the Bill was debated yesterday in another place, in the hope of finding a way forward on these important provisions.

The Government's amendments to Clause 43 put beyond doubt the fact that there must be evidence of a real and present danger of jury tampering before the first condition for a trial to be conducted in the absence of a jury is met. Amendment No. 34B inserts a new subsection at the end of the clause that gives examples of the sort of evidence that may be involved. It states that they are:

"(a) a case where the trial is a retrial and the jury in the previous trial was discharged because jury tampering had taken place,

(b) a case where jury tampering has taken place in previous criminal proceedings involving the defendant or any of the defendants,

(c) a case where there has been intimidation, or attempted intimidation, of any person who is likely to be a witness in the trial".

I hope that the amendments make it abundantly plain, if it was not before, that there is no question of the police and/or prosecution simply whispering in the judge's ear, in order to secure a juryless trial. Firm and substantial evidence of risk will be needed for an application for juryless trial to succeed. Our amendments make that clear and, in doing so, answer the concerns expressed by Her Majesty's loyal Opposition and those voiced in the other place by others who have spoken.

Amendments Nos. 36A and 36B, to Clause 45, also attempt to find a way forward. They take on board opposition amendments tabled in Committee and on Report in another place. They make it clear that jury tampering must be the primary cause of the jury discharge and that the judge, having discharged the jury, must make an order for the trial to continue without a jury only if he or she is,

"satisfied that jury tampering has taken place".

Yesterday, in another place, the Opposition tabled amendments to Clauses 43 and 45, with the aim of further limiting the already restricted circumstances in which a juryless trial could take place, where there is tampering or the risk of it. I must confess that I share the puzzlement of my right honourable friend the Home Secretary about those amendments. They are not entirely logical.

The illogicality is apparent in the fact that they set a different test to be satisfied in respect of each clause. During yesterday's debate, Mr Dominic Grieve, the honourable Member for Beaconsfield, explained that that was because the test in respect of the risk of tampering should set a higher threshold than the test in Clause 45 for cases in which tampering has actually occurred. As the Government's amendments to Clause 43, I hope, make clear, evidence of jury tampering in a previous trial is, precisely, an example of the type of evidence that might be presented as evidence of a risk that jury tampering would take place. It also does not make sense to acknowledge the burden on the jury of police protection in one set of circumstances and disregard it in similar circumstances.

That condition addresses the question of whether we can reasonably expect members of the public to come forward and undergo the stress and anxiety of actual intimidation or a genuine fear of intimidation and the misery of round-the-clock surveillance over a lengthy period. Clearly, Her Majesty's loyal Opposition and others who sit opposite do not share our deep concern.

The amendments tabled by the Opposition in another place also ratchet up the interests of justice test in Clauses 43 and 45 to require there to be a "great" or "overwhelming" likelihood that jury tampering would take place notwithstanding any steps that might be taken to prevent it. I understand the concerns that underlie the amendments. It is our belief that the clauses already meet those concerns. If I can paraphrase what was said in the other place, I can assure Mr Grieve that they already require the court to make examinations in minute detail, before ordering that a trial be conducted or continued without a jury. In responding to that point, I invite the House to remember that Clause 43 draws on existing case law on jury protection applications, which requires the judge to order full police protection for the jury only where there is a real and present danger of jury tampering.

We cannot accept the Opposition's amendment to Clause 45, which would remove the judge's power to continue the trial alone, following discharge of the jury because of tampering. The amendment is based on concerns about the impartiality of the judge, who, having heard information that may be prejudicial to the defendant, goes on to sit as fact finder in the trial. However, I remind the House that judges routinely direct themselves to disregard prejudicial evidence. Having detailed knowledge of such information does not necessarily mean that the judge must automatically be considered prejudiced. Rather, the key question must be whether there are any ascertainable facts that would raise legitimate and objectively justified doubts about a judge's impartiality, and we are not convinced that in such cases, in general, there will be. I remind your Lordships that the judge will be able to do justice in such a situation, as he will have a discretion.

Of course, a judge who felt unable to take on a case because he or she feared that he or she would not be able to hear it with the requisite impartiality would not be obliged to do so. That established principle is already reflected in the Bill. I am sure that noble Lords will join me in expressing confidence in the ability of the judge to exercise discretion in that way and to discharge himself or herself, if he or she feels that that would be in the interests of justice.

Several questions were asked about the way in which prosecution applications under Clause 43 would be made in circumstances involving sensitive information. The Government are confident that existing public interest immunity procedures are fair and effective and do not in any way endanger the rights of defendants. We are also confident that they will work equally well when used in the course of an application under Clause 43.

Moved, That the House do not insist on its Amendment No. 34 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 34A and 34B to the words so restored to the Bill.—(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. 34 and do agree with the Commons in their Amendments Nos. 34A and 34B to the words so restored to the Bill, leave out from "House" to end and insert "do insist on its Amendment No. 34".

Photo of Lord Hunt of Wirral Lord Hunt of Wirral Conservative

My Lords, I understand that Amendment No. 36C is consequential on Amendment No. 34C.

I want to make the point that, to some extent, we have already covered this subject in the opening debate when we responded to the Minister in covering a range of situations relating to non-jury trial. However, when the Minister read out that portion of her speech which did not seem to come from her, but rather from a written document—the point at which she remarked that she believed that those opposing this clause did not understand the depth of the Government's concern—I believe that she made a grave error. During these debates we have constantly declared war on any form of intimidation and we want to join with the Government in ensuring not only that the intimidation of a jury does not take place, but that the intimidation of a judge—some very serious cases have been reported recently—of parties or of witnesses also does not take place. At some stage we would welcome a dialogue with the Minister and her colleagues on seeking to increase the sentences for jury tampering, judge or witness tampering, or other intimidation of any of the parties. At the moment the penalties are not sufficiently severe. We declare war on intimidation of any kind.

All I wish to say in addition to my previous comments is that I thought that my honourable friend Mr Grieve went into considerable detail in explaining his amendment. However, it was not tabled yesterday, like the government amendments; it was tabled six months ago. When the Minister takes credit for having come forward with these amendments, it should be noted that the Government produced them only 36 hours ago, but we are talking about a debate that took place in this House on 15th July. Only yesterday morning did we first see the Government's proposed new wording.

Furthermore, there are defects. Members of all parties are nervous about allowing a judge who has just received evidence of jury tampering then to continue to sit on his own. When Mr Marshall-Andrews spoke yesterday from the Labour Back Benches to agree with the points that my honourable friend Mr Grieve was making, that was a most telling intervention. So we ask again: please may we have co-operation from the Government to arrive at a formula that would meet this very serious situation? In effect, I am saying: please may we have some constructive engagement instead of sudden, last-minute amendments which are defective—those defects were pointed out yesterday in the other place? We need to get this right. I beg to move.

Moved, as an amendment to the Motion that the House do not insist on its Amendment No. 34 and do agree with the Commons in their Amendments Nos. 34A and 34B to the words so restored to the Bill, leave out from "House" to end and insert "do insist on its Amendment No. 34".—(Lord Hunt of Wirral.)

Photo of Lord Morris of Aberavon Lord Morris of Aberavon Labour 5:00, 19 November 2003

My Lords, I thank my noble friend on the Front Bench for her careful explanation of what is intended. As we know, real difficulties can arise in certain cases. Fortunately, as she explained, they are few in number, but the difficulties relate to very serious cases which involve substantial allegations. I have some experience of this, having been for some two-and-a-half years the Attorney-General with responsibility for Northern Ireland.

The purpose of my intervention is to say this: given the background of what we are dealing with, can my noble friend tell us whether she is satisfied that no difficulties would arise from the first sentence of Amendment No. 34B, in seeking to prove,

"where there may be evidence of a real and present danger that jury tampering might take place"?

Is such evidence to be heard in open court, obviously on oath? Further, does she envisage any of the same problems arising from proving this particular requirement?

Photo of Lord Monson Lord Monson Crossbench

My Lords, the noble Lord, Lord Hunt, claimed that Amendment No. 36C is consequential on Amendment No. 34C. While I realise that I am deficient in legal expertise, that does not appear to be so; they are quite separate matters. Clause 45 stands alone and is not dependent on the passing of Clause 43.

Photo of Baroness Anelay of St Johns Baroness Anelay of St Johns Conservative

My Lords, I rise briefly to assist the noble Lord, Lord Monson. We took advice on this from the Clerk at the Table and consulted the Government. We have all received the same advice. That was the reason why my noble friend Lord Hunt referred to Amendment No. 36C being consequential on Amendment No. 34C.

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

My Lords, intimidation is something that must be attacked and Members on these Benches join with all that has been said by the noble Lord, Lord Hunt. Nothing in this clause would do anything about intimidation. It provides that, if there has been intimidation, any subsequent trial would be held without a jury.

The Minister referred to the cost of protecting juries. No doubt there is a considerable cost, but members of a jury come from the community and they disappear back into the community at the end of their term of jury service, whatever that may be. Therefore they would need to be protected for only a short time. Judges involved in terrorist cases in this country are provided with 24-hour protection for seven days a week. The position is the same in Northern Ireland, where heavy protection is provided for judges all the time. One wonders about the cost of that.

I say that because in Northern Ireland a judge has been murdered, while in continental systems and in other parts of the world, judges are assassinated from time to time. When we are dealing with serious crime, we must provide full-time protection in those circumstances. So no saving in costs would be made as a result of these provisions. In fact, the costs incurred in protecting juries referred to by the Minister would be rather modest when compared with some of the costs of police protection being incurred today. That is no argument for abolishing the right to trial by jury. We are with the noble Lord, Lord Hunt, in opposition to the Government's plans.

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, first, I should like to emphasise in response to my noble and learned friend Lord Morris of Aberavon that the test now applied to have a jury covered for 24 hours a day is very much the same: it is a "real and present danger". Taking the four or five cases that I have already mentioned, the judge must already be satisfied in relation to that test before he would authorise 24-hour protection. We do not think that there would be any difficulty about that. It is clear that the judge will have to assess the potential risk of tampering on the basis of the evidence before him. It would need to be clear and cogent evidence, whatever form it takes and whatever its nature.

Our amendment simply gives examples. We do not say that these are the totality of circumstances that the court must take into account. We have given them as an exemplar of the quality of evidence that we think would need to be presented before the court could be satisfied that providing protection would be a proper thing to do.

We can draw comfort from the fact that judges dealing with such cases have used the provision of 24-hour protection very sparingly. One of the reasons for that—one cited on an earlier occasion—is that if one looks at the conviction rate, it would appear that there is a slightly higher conviction rate for those juries under protection than otherwise. That may be due simply to the weight of the evidence, but there is a significant difference and it is something that we must consider.

I shall take up the point made by the noble Lord, Lord Thomas of Gresford, about the costs incurred in providing protection for judges. I believe that I said earlier in my remarks that it is easier to protect one judge than it is to protect 12 jurors. The nature of the protection is different.

The robustness of our judges is also different. They take on an enormous responsibility on behalf of the public and discharge it with honour. I pay particular credit to the judges in Northern Ireland who have been discharging that duty in Diplock courts with real courage, dedication and fairness for many years. We do not doubt for a second that we have judges of the kind, nature and calibre necessary to discharge this duty, not only in terms of their own personal courage but also in terms of the way in which they will address matters in the interests of justice.

I can assure the noble Lord that this is not a cost-cutting exercise. We do not believe that we will save money, but neither do we shy away from addressing the issue. We believe that it is right to take this opportunity.

A very senior judge indeed mentioned to me that he had spent the last three years of his practice conducting one trial. At the first trial, through some happenstance, inappropriate material managed to get in front of the jury in almost the twelfth month. The first jury was discharged. It was genuinely thought that there had been successful interference with the jury—tampering.

The second trial proceeded for almost a year when one day a juror ran from the jury box in a state of distress, declaring that he could go on no longer knowing that other members of the jury were in receipt of money and had been tampered with. That trial came to an end and the juror was subsequently prosecuted. The third trial again took a year.

The point that was made to me was that if those serial criminals had known that the consequence of seeking to tamper with the first jury was likely to be a trial by judge alone, they probably would not have done it in the first place. They may have considered that being tried by 12 good men and women true would be a better option for them. So the fact that there is a backstop of this nature may well act as a deterrent to those who would wrongly seek to undermine the interests of justice.

That was told to me by a very senior judge indeed who had, before that three-year experience, been of a view similar to the one expressed in this House on previous occasions. We are dealing with a very different world today than in the past—a world in which my noble and learned friend Lord Morris was privileged to serve.

Photo of Lord Donaldson of Lymington Lord Donaldson of Lymington Crossbench

My Lords, perhaps I may say one word, and say it very briefly. All this discussion about physical protection for the jury overlooks the bribery element.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

My Lords, the debate has now concluded and we should now proceed to a decision on the amendment.

Photo of Lord Hunt of Wirral Lord Hunt of Wirral Conservative

My Lords, I join with the Minister in paying tribute to our judiciary. Such support comes from all sides of the House. That is why we have tabled a whole series of amendments to the Bill which are designed to uphold the independence of the judiciary in which we have such confidence.

We have debated the issue. I hope that there will be constructive engagement. I believe that I speak for all noble Lords when I say that we want to stamp out jury intimidation—let us unite; let us have constructive engagement—but, as yet, the Government's new clauses, which appeared for the first time yesterday, have not got it right. I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 34C) shall be agreed to?

Their Lordships divided: Contents, 187; Not-Contents, 135.

Division number 3 Private Parking: Ports and Trading Estates — Lords Amendment

Aye: 185 Members of the House of Lords

No: 133 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.