Examination of Witnesses (Questions 360
- 379)
TUESDAY 26 NOVEMBER 2002
LORD FALCONER
OF THOROTON,
QC, MS CECILIA
FRENCH AND
MR IAN
CHISHOLM
360. In two mode of trial bills that came forward
and were dropped there were reckoned to be savings of £105
million in one case and £128 million in the other. How much
money do you expect to save as a result?
(Lord Falconer of Thoroton) I do not think there is
any saving of money that is envisaged by this because the trial
will still take place. It will be a handful of cases in a year.
It might be marginally shorter in some cases, but there is no
material financial saving. Ian will correct me if that is not
the case.
(Mr Chisholm) We have made the assumption that it
is a very small amount and it will create some more capacity in
the courts because the trials will be a little shorter without
a jury.
(Lord Falconer of Thoroton) Can I say, Mrs Dean, as
both Roskill in his report and Lord Justice Auld in his report
made clear, this is not remotely motivated by financial saving,
it is about trying to make the jury system work better by recognising
that there are a few cases where there are difficulties in relation
to a jury trial and it is based upon the proposition that we regard
jury trial as the norm in serious cases.
Mrs Dean: Thank you.
Chairman
361. Let us go over what types of cases we are
talking about. We all agree that fraud cases take a very long
time, do we not?
(Lord Falconer of Thoroton) Yes.
362. And cases where there is intimidation of
juries also?
(Lord Falconer of Thoroton) Yes. There are, in effect,
four cases. Firstly, serious fraud and secondly, the lengthy and
complex cases where the financial or commercial dealings are significant,
that would be money laundering cases and perhaps drugs trafficking
cases where it is all about the movement of money. Thirdly, those
cases where the jury has been intimidated in the course of their
trial and the judge can go on alone.
363. Where they have actually been intimidated
and not where someone expresses an opinion that they might be?
(Lord Falconer of Thoroton) The fourth category is
where there is a risk of intimidation, so the material is placed
before the judge and he has got to address the issue of whether
the risk of intimidation is such here that the appropriate course
is to proceed without a jury. That is the four categories.
(Mr Chisholm) The other is where the defendant asks
for a non-jury trial. Lord Justice Auld looked at the example
of other common law jurisdictions, for example in the United States,
Canada, Australia, New Zealand where this occurred and thought
it was a sensible thing to have. A good example is the Lockerbie
trial where the Libyans would not have released the defendants
without the Scots agreeing it would be a non-jury trial.
Mr Clappison
364. I would like to explore the rationale for
this a little bit more with you. Putting to one side the jury
intimidation points and turning to the complexity point which
you have made in your opening statement. You are not saying that
there is evidence that people are getting away with it because
juries do not understand the trials. We were told last week the
Serious Fraud Office have got an 86 per cent conviction rate.
Your case is it is all too much for the jury, is it not?
(Lord Falconer of Thoroton) No, my case is not it
is all too much for the jury because, as I have said before, the
jurors who are there deal with the issues conscientiously and
effectively. What I am saying is if you have a case that is going
to last in excess of ten months—and some cases last 18 months
to two years—the pool from which you can draw the jurors
has got to narrow significantly. Ian then made the point, which
I thoroughly endorse, that that means you also have the problem
that the prosecuting authorities in complex fraud or financial
dealings cases will seek to try and compress the case and often
omitting bits of the case in order to make the length of the trial
digestible.
365. Can I then direct your attention to clause
37 of the Bill which I think deals with the complex and lengthy
trials and not the juror intimidation point and subsection (4),
which is the grounds on which an application can be made by the
prosecution for trial by judge alone. This goes much further,
does it not, than the point which you have made to us about cases
which are too long for the jury and place too much of a burden
on them because it is not just those cases which are included
in that clause that come under clause (4)(b), it is clause (4)(a)
which covers a much wider category of cases, cases where the complexity
of the trial "is likely to make the trial so burdensome to
the members of the jury hearing the trial that it is necessary
in the interests of justice for the trial to be conducted without
a jury." So it is possible just for cases to be taken away
from a jury because of the subjective view of the complexity of
the trial and not necessarily the length of it, is it not?
(Lord Falconer of Thoroton) No, it is intended to
be the length of the trial.
366. It says complexity or length.
(Lord Falconer of Thoroton) It is hard to imagine
it being burdensome to members of the jury without the length
issue applying.
367. But that is clause (b), is it not, because
clause (b) covers what you tell us about in your evidence and
that is a case which "would be likely to place an excessive
burden upon the life of a particular juror" and those are
the two alternatives?
(Lord Falconer of Thoroton) It says "excessive
burden" in (b) or "so burdensome to the members of the
jury hearing the trial that it is necessary in the interests of
justice for the trial . . .", so both refer to burden.
368. But the second one refers specifically
to the burden upon the life of the juror and the first one just
says "so burdensome".
(Lord Falconer of Thoroton) The first says "the
members of a jury hearing the trial".
(Mr Chisholm) The first point is meant to cover the
cases that we both mentioned where the prosecution currently are
having to cut down on the full extent of criminality to fit into
a jury trial. If one reads (4)(a) along with subsections (6) and
(7) you will see that the judge must have regard to reasonable
steps to reduce complexity and length, but it is not to be regarded
as reasonable if it will significantly disadvantage the prosecution,
ie if the prosecution has to cut its case down.
369. Can I say that that is a matter for the
prosecution. On the wording of your clause it is possible for
a trial to be taken away from the jury because the view is taken
that it is so complex it would be burdensome to members of the
jury irrespective of the question of length. That is possible
under the wording of that clause.
(Lord Falconer of Thoroton) No, I am not sure that
is right. Look at (4)(a) and (4)(b), both refer to burden on the
juror and look at the heading of it is that ". . . the complexity
of the trial or the length of the trial (or both)—(a) .
. .", so you need a burden.
370. You need a burden, but the burden which
is spelt out in (b) is the burden on the life of the jury and
(b) is an alternative to (a).
(Lord Falconer of Thoroton) Paragraph (a) deals with
the burden, the long time hearing and (b) what affect does the
long time hearing have on the other life of the jury, that is
the way it is dealt with.
371. You do agree it is possible for politicians
and lawyers to underestimate the ability of members of the public
to understand cases, cases which lawyers and politicians may think
of as being complicated?
(Lord Falconer of Thoroton) I am not saying it is
a problem with understanding as far as the jury is concerned,
it is the reduction of the pool from which you can select the
jurors.
372. Governments of all descriptions have had
a go at chipping away at the jury system on various grounds, both
the last government, the present government and governments before
that, but there have been many cases in our history and in recent
history as well where important decisions have been reached by
a jury. Some of those might have fallen within the visions of
this, ie they were regarded as being too complex for the jury
and given over to the judges.
(Lord Falconer of Thoroton) I have made it clear in
the course of giving evidence today and on other occasions that
we are seeking to uphold one of the principles of the justice
system which is that serious crime should normally be tried by
juries, but we are recognising and seeking to deal with those
cases where there are problems in relation to jury trials. The
sorts of cases we are talking about here involve a handful of
cases, but it is people experienced in the jury system, like the
authors of the reports to which I have referred who say there
are real problems in relation to that because the essence of the
jury system is the randomly selected 12 jurors.
373. I am suggesting to you that the wording
of this clause goes substantially beyond what you have been suggesting
to us as the clause stands.
(Mr Chisholm) If one reads the whole clause, I think
not. What we envisage is the prosecution will make an application
on the basis of the whole case for a non-jury trial and not just
sample counts and then the judge will have to consider whether
the case is so complex and the general manageability of it is
such that the jury would be unable to deal with it because of
its length if it was dealt with as a jury case. The second point
is that it would also be burdensome upon the personal lives of
the jurors.
374. So the judge is being asked to form a view
as to what he thinks would be too burdensome for the jury to understand?
(Mr Chisholm) Not to understand, it is the manageability
of the trial. You might lose many of the jury if a trial goes
on for two years or whatever.
Chairman
375. Supposing the defendant very strongly disagreed
with the ruling given by the judge, is there any scope for appeal?
(Lord Falconer of Thoroton) Yes, to the Court of Appeal.
Chairman: Thank you for that.
Mr Clappison
376. Many people feel that juries should be
put more in the picture about previous convictions, but I think
you would agree there are risks attached to that. Last week the
Chairman of the Criminal Bar Association said this to us, "We
are very concerned that it is going to be a rule where we will
have convictions going in on a much wider basis which we feel
could cause unfair trials and indeed miscarriages of justice,
but of course the fact-finder will be deflected from the real
issue in the case." Then he went on to give examples of,
say, a burglary case where there was weak identification case
but evidence of bad character on the part of the defendant and
that the evidence of character might play too big a part in the
final determination of the issues. What do you say to people who
are worried about the effects on the fairness of trials of putting
in character on a much more widespread basis than appears to take
place at the moment?
(Lord Falconer of Thoroton) The risk of putting in
evidence of bad character is to the fairness of the trial. The
extent to which it might adversely affect the fairness of the
trial will depend upon the particular facts in the particular
case. So one can identify cases where it would form a line and
where you should not put it in and you can identify cases where
it should go in. The critical question is should it go in on the
facts of a particular case. We cannot prescribe in this room or
in an Act of Parliament precisely where fairness in an individual
case lies, one ultimately has to trust the judges in that respect
and that is what we have done in the Bill by saying that if the
judge thinks that the admission of evidence would have such an
adverse effect on the fairness of the proceedings that it should
not go in then it does not go in and adverse effect on the fairness
of the proceedings is the phrase used in the Bill. What is the
current position? The current position is that there is huge uncertainty
about what the position is as to when evidence goes in and when
evidence does not go in. There is no principle of English law
that says previous convictions do not go in. There is both uncertainty
and a lack of confidence on the parts of lawyers and judges as
to when they do go in because they are not quite sure what the
law is. What we do in the Bill is basically specify the circumstances
in which it is admissible, but in the majority of cases where
there is the prospect of a fairness issue arising we give the
court discretion as to whether or not they let it in. That seems
to us to be a fair principle. It is fair for three reasons: (1)
it makes it clear what the law is, (2) it seeks to get rid of
the uncertainties that exist and (3) it means that the defendant
will know where he stands.
377. I think many people say it is fair to say
that the present law is a little haphazard as far as character
is concerned, although it has been in place for some considerable
time.
(Lord Falconer of Thoroton) What law? You say it has
been in place for some considerable period of time but it changes
constantly. For example, in the mid-1990s the House of Lords decided
a case called DPP and P which said bad character should
go in when relevant and then there was a widespread feeling in
the Lords that that was then broadly ignored. The House of Lords
had another shot at it in a case called Z in 2000. It has
not been a static position.
378. As with House of Lords common law, the
position has been roughly the same since the Act of 1898, but
that is what I was getting at when I said the way in which it
has grown up was haphazard. You would agree that the Bill as drafted
would allow character to go in on a more widespread basis than
takes place at the moment? It does relax the rules.
(Lord Falconer of Thoroton) Yes, I agree with that.
379. And particularly 84(1)(d) which says, ".
. . it is evidence of the defendant's conviction for an offence
of the same description, or of the same category, as the one with
which he is charged." That evidence can go in more routinely
than is the case at present?
(Lord Falconer of Thoroton) Yes.
| 
