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Lord Hunt of Wirral: The noble Lord knows much about these matters. He is right. A great deal of unnecessary documentation could be dealt with at an
earlier stage through pre-trial hearings in order to restrict the consideration. After all, the only real question is whether or not a defendant is dishonest. Surely there must be a better way of simplifying the issues.As to the third area, that of jury tampering, I am sure that I speak for all Members of the Committee when I say 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. We need to conduct urgent research. Let us look at the details and consider what it is best to do—but not as a part of a bits-and-pieces package to dispense with jury trial.
Jury tampering needs to be tackled head on. It cannot be countenanced in this country that there should be such tampering. There are existing common law powers for a judge to intervene, to stop a trial and to then order a retrial before another jury, perhaps hundreds of miles away. Such common law powers exist. If the mode of trial is altered under threat, the problem will not go away. It will still be there, but it will be restricted to the judge. If the problem is not tackled head on, extra security for judges and their families would be a consequence.
The noble Baroness, Lady Scotland, and her entourage have moved into overdrive and there has been a highly orchestrated publicity campaign. I was delighted to see in the Guardian, if I may compliment the Minister, a marvellous photograph of the noble Baroness. Underneath the picture were the words "Scotland the brave". The article states:
- "Can Baroness Scotland (above) ride to the government's rescue in the Lords today and save plans for judge-only trials?".
I hope that the Government will think again. Telling the public that certain cases are inappropriate for juries will surely undermine confidence in and commitment to the jury system. Trial by judge alone would see the independence of the judiciary called into question, to say nothing of the pressures it would place on individual Crown Court judges, an issue on which there has been no research and no consultation. There are many other issues that I hope will be raised during the course of the debate.
As I said at the beginning of my remarks, the Government's proposals are, to use the phrase used by my right honourable friend the shadow Home
Secretary in another place, taking us well down a slippery slope. Another shadow Home Secretary once said when opposing the restriction of jury trial that,
- "Fundamental rights to justice cannot be driven by administrative convenience".
On Second Reading the noble and learned Lord the Lord Chancellor referred to that fundamental right and stated:
- "The Bill"—
- "respects and safeguards that central principle of our system".—[Official Report, 16/6/03; col. 560.]
Three years ago, the House stood up to the Government in defence of this central principle of our system of justice. I very much hope that the Committee will send the same message to the Government that they should end this obsession with restricting trial by jury. There are many provisions in the Bill which merit our consideration and support. Let us remove Part 7 and get on with our scrutiny of the remainder of the Bill.
Lord Thomas of Gresford: We on these Benches support the noble Lord, Lord Hunt, in his moving opposition to these clauses. We, too, believe that Part 7 should be removed from the Bill.
It is a curious paradox that during this week the Lord Chancellor should complain about the homogenised nature of the judiciary—70 per cent white, male, middle-aged and Oxbridge—and that he should talk about setting up a commission in order to expand the pool from which the judiciary are chosen to include younger people, more women, people from different ethnic backgrounds and so on. That mixture of people—young, different ethnic backgrounds, men and women—is the very foundation of the jury system: a mixture of people which amounts to a mini parliament—a democracy in itself—and which has always acted as a buffer against repressive regimes and against repressive laws.
The noble Lord, Lord Hunt, referred to the noble and learned Lord, Lord Williams of Mostyn, and the remarks he had made on previous occasions when the Government sought to restrict the right to jury trial. I find it rather interesting to illustrate my point in this way. The noble and learned Lord, Lord Williams of Mostyn, comes from an area 25 miles or so from where I live. We share very similar backgrounds; we went to very similar educational establishments. I think we have the same Presbyterian background—progressive,
anti-privilege and anti-establishment. Indeed, the noble and learned Lord is anti-establishment even though he now embodies the establishment. We have shared values—I know that, for us, certain truths are self-evident. Although we dance to different party Whips, I would be very surprised if the views of the noble and learned Lord, Lord Williams, differed from mine on all the great issues that shake your Lordships' House such as fox hunting, Section 28, jury trials or the composition of the House of Lords.If one were to imagine this House made up of 650 Queen's Counsels, all of whom had been born and brought up in north-east Wales, this place would be unutterably boring. It is the fact that there are other people who have different values and hold to different principles, who believe in stability and continuity, that allows this Parliament, in both Houses, to work as a democracy and to represent all the people of this country.
People who believe in stability and continuity—and many of Her Majesty's judges are such people—have other truths which appear to them to be self-evident. Very often, those of us who come from the sort of background that I have described, hit up against the self-evident truths of the judiciary—less so, when it comes, perhaps, to the jury.
The jury is an essential democratic institution at the heart of the system of justice in this country. Any attempt to weaken it should be resisted. Clause 41 deals with the choice of jury trial. The defendant is to have the opportunity of choosing to be tried by a judge alone. The defendant will choose to be tried by a judge alone only if he sees some advantage to himself in it. That may not necessarily be in the interests of justice.
Lord Justice Auld said in his report that the judge sitting alone would be a simple, more efficient, fairer and more open way of justice. I do not believe that to be true for a moment. Who will be attracted to the idea of being tried by a judge alone? Sex offenders, perhaps, who have been the subject of massive publicity. Perhaps a white person charged with the rape of a black girl would fancy his chances more in front of a white judge sitting alone. If he were to be acquitted, what an uproar there would be throughout the press against the judge who had come to that conclusion.
Perhaps middle or upper-class fraudsters going into court wearing the right tie—one shudders to think it, but it could be a Garrick Club tie or one from another institution—would think that the person trying them shared their values, was not a cross-section and would respond to the sort of explanations that they wished to put forward for what was suggested against them.
The third category might be those who have no real merit but who hope that by the use of some technical argument they might be able to find a chink in the reasons that a judge sitting alone would inevitably have to put forward for his verdict and thereby get off on a technicality.
One can see all sorts of grounds for public disquiet; where a judge alone was chosen by the defendant it would be seen to be a mode of trial that was not open and
not necessarily independent. It would not be open in the sense that a great part of any trial these days consists of the prosecution going to see the judge without the knowledge of the defendant to make a public interest immunity application. Private information is handed to the judge which the defendant does not know about and cannot check. This system, I respectfully suggest, is not acceptable.In Clause 42, we come to the perennial question of fraud trials. It so happens that the rate of conviction in fraud trials is variously assessed as between 83 and 87 per cent of those who are tried. That is significantly higher than the percentage of those convicted in all other trials. So what is wrong with the current system? It is said that fraud trials are too complex and that juries do not understand. There is an enormous arrogance in assuming that juries do not understand. That is not my experience. In most fraud cases, the financial background is perfectly clear and usually unarguable. The issue before the jury is simple: what did the defendant do and was it dishonest, not by the standards of the City of London but by the standards of the cross-section of ordinary people of this community?
It is said that we should have a judge sitting alone to try fraud trials because of the length of trials. What is being saved by the abolition of juries? The jurors' time, but I think we should be robust about that. It is a very important part of being a member of society to serve on a jury and to understand the complexities of the criminal justice system and how it works. How else is it to be shortened? Are witnesses to be clipped? Is cross-examination to be shortened? Are lawyers to be paid less? I fail to see the savings in the length of trial conducted by a judge sitting alone. That is not the experience that some of us have from viewing prosecutions in Hong Kong, for example, where very lengthy trials take place before district judges.
It is for the prosecution and the defence to make it clear where the criminality lies in a fraud case so that if a person goes to prison for a long time, the public understand it and there is no criticism of the verdict of the jury one way or the other because the public are a part of it.
Clause 43 deals with jury tampering. I am amused to see that the noble Baroness, Lady Scotland, as the noble Lord, Lord Hunt, pointed out, feels that jury tampering is unfair to a defendant because it is more likely to lead to his conviction. Jury tampering will never take place in a trial in which the defendant is totally innocent, because then there is no need to tamper with the jury. The fact that the conviction rate is higher in cases where tampering has taken place is wholly unsurprising.
The Metropolitan Police have provided the service to about four to five trials per year across all sorts of trials, whether they emanate from the Crown Prosecution Service, Customs and Excise, or elsewhere. That is not a great number of trials; that is no reason to breach the principle of jury trial.
The terms of the clause are nebulous. The judge is to sit alone if there is "real and present danger" of jury tampering. What is that—a subjective judgment by the
police supported by evidence which is presented to the judge in a public interest immunity application that the defence never sees? If the judge has been provided in the middle of the trial with private information that jury tampering has gone on in respect of the defendant who stands before him, so that he decides that he should discharge the jury, does the trial continue in front of him? How can he dismiss from his mind that which he has been told in secret and which has caused him to rid the trial of the jury because of suspected tampering?In all those ways, there is continuing pressure from the Home Secretary and, no doubt, from the police behind him, to get rid of the jury trial. It is seen as something that prevents justice being done. I hope that all noble Lords will reject any such notion and will join us when and if we reach a vote on this subject.
3.45 p.m.
Lord Ackner: I put my name down with those who wish to oppose the jury proposals standing part of the Bill. I know that there is a great danger that one will make a Second Reading speech rather than confine oneself as one should in Committee. If I err in that direction, the Government are to blame to some extent because we should have had two days for making speeches on Second Reading, in which case we could have done more than choose one point out of 200 pages of clauses, and another 200 pages of schedules.
I shall try not to repeat the philosophy and the points already made. In October 1998, the Fraud Advisory Panel submitted proposals to the Lord Chancellor's Department for procedural reform in cases of serious fraud following the establishment of a review of pre-trial procedures in such cases. A short while before, the Home Office had also published a consultation document entitled Juries In Serious Fraud Trials, in which a number of different options for the trial of serious fraud were canvassed. The Government have taken no action on those proposals, which has caused members of the fraud prosecution very sensibly to take the view that, before the question of dispensing with trial by jury is contemplated, we should first put forward procedural amendments. Such amendments would substantially shorten the process, reduce the cost and reduce the burden placed on juries. Then we can reconsider the wisdom of managing without juries. A number of those suggestions are conveniently set out in one of the briefing papers from Justice, on which I hope that the noble Lord, Lord Alexander, may expand. I found it extremely helpful.
The suggestion has been made that long cases are simply not appropriate for juries. I have read an article on the Wickes case, which took 10 months to try. It took the jury less than eight hours to reach unanimous verdicts, finding all three of the accused not guilty. In the course of his summing up to the jury, the trial judge said:
- "The care and attention which you have devoted to this case has been obvious to me throughout from almost the very first moment you started to try this case. Those who may hereafter criticise
- juries' appreciation of lengthy and complex fraud cases would have done well to see the care and attention that, as I say, you have given to this case throughout".
- "That this House reaffirms its faith in jury trial for serious criminal cases as an essential cornerstone in British liberty; recognises that it provides a unique example of the responsibilities of citizenship; rejects the unfounded and unsubstantiated allegation that jury men and women cannot comprehend complex factual issues; and recognises that procedures and powers already exist to distil issues and shorten trials in serious fraud cases and to guard against rare attempts to tamper with the jury".
At the back of the matter is the Treasury approach of value for money. The Treasury does not believe that a jury trial in long cases gives value for money because it takes longer and is more expensive. The Treasury concept of value for money is not the same as the consideration as to whether a system is delivering a better justice.
The only other point that I want to make is on the question of public perception, which I believe to be very important. A large proportion of the public, particularly the ethnic minority groups, looks upon trial by jury as giving a better quality of justice. They suspect that a judge has become case-hardened, which would not be surprising because the same sort of defence may be served up time and time again. That has often been the criticism levelled against stipendiary magistrates who are now district judges.
I believe that in the majority of fair-minded judges there can be a subconscious bias towards the prosecution. Although it is not in any way meant to be an unjust approach to the case, there is a feeling that the case would not have been brought if intense investigation had not shown that there was a strong case to answer. That perception is terribly important. If the minority feel that they are being done out of what they consider to be the only truly just and dispassionate way of getting justice, then a real sense of injustice will pervade a part of that population which already views the establishment, so to speak, with deep suspicion. Even though most of us may disagree with it, we must allow the perception to be satisfied. We do not do that by this objective approach to which system sounds and seems the most likely to give the best value for money. Accordingly, I subscribe to the amendments.
4 p.m.
Baroness Kennedy of The Shaws: I have a real sense of deja vu because I have made many speeches in this House on the subject of juries. Two previous Bills were defeated when the Government tried to persuade us that the jury system should not be wasted on low-level crime and small-time offenders who abuse the system. At that time, the argument was that serious crime deserved the Rolls-Royce of jury trial—it was the less-serious crime that did not deserve it. I am afraid that, having failed at the lesser end, the Government have turned their assault on its head.
Last weekend, the Prime Minister opened a conference on the renewal of the third way. A list was put up outlining what would be discussed, and it contained seven categories. The sad thing was that the third way clearly has nothing to say when it comes to liberty and justice. The Government have allowed the agenda on law and order to be set elsewhere. What is forgotten is that the "law" part of the "law and order" strapline actually refers to justice—not to the making of laws, but to justice.
Although the jury is 800 years old, and the Government tend not to like anything of age, it is one of the most modern institutions in our firmament. It speaks to all those things that should be at the heart of a contemporary society. It empowers the citizen. It requires his or her responsibility to society. It means giving something back, participation, belonging to a community and bringing the community's values into the court room. By so doing, it validates the legal system.
It is highly desirable that society as a whole should be represented within the processes that determine guilt or innocence because a fellow citizen may be punished as a consequence of that verdict. These processes affect liberty.
Lord Devlin's description of the jury as a mini-parliament—and therefore as an element of our democracy—has already been quoted. However, Lord Devlin also said:
- "the first object of any tyrant in Whitehall would be to make parliament utterly subservient to his will and next to overthrow or diminish trial by jury".
Juries keep the law honest and comprehensible because working with juries—as those of us who work with juries know—puts an obligation on all of us to explain the law and the rules and to apply the standards of the public to what is right and wrong. The jury stops the law becoming opaque. It stops the law becoming closed and sometimes even dishonest.
In the rush to modernisation, we are sometimes unaware of consequences which may not have been immediately foreseeable. The jury, in fact, protects the judiciary. It is what maintains the esteem of the British judiciary. When I travel for the British Council, one comment is always made in relation to Britain and British institutions—that whatever small faults it may have, the British judiciary is globally regarded as incorruptible. That reputation is justified and is due to no small extent to the fact that we have a jury system.
There is no point in bribing or bullying judges as to the verdict because the verdict is not theirs. It is also almost impossible to bribe or bully the whole of a jury. To get a corrupt verdict one would have to get at least 10 jury members on one's side. To get a spoiled verdict, one would need the support of at least seven jury members. Although some serious criminals will inevitably attempt to bribe or intimidate, it happens on remarkably few occasions. However, it will happen more frequently if we have trial by judge alone. A magistrate in France recently publicly stated that there had been threats to her life and that she had been advised by French intelligence not to stand at her own apartment windows for fear of being shot. She had been investigating a fraud trial as an investigative magistrate.
Trial by a single judge catapults judges into a position which makes them very vulnerable. A jury tries a case, delivers its verdict and drifts back to the anonymity of daily life. However, a single judge trying a case will enjoy no such anonymity. Everything about that judge will come under scrutiny, not just from the press but also from the lawyers conducting the cases. Challenges will be made to judges. There will be insistence on disclosure of their every financial interest, and indeed those of their spouses.
Like it or not, judges also acquire reputations—for being prosecution-minded; most often, one would hope, for being even-handed; or, sometimes, even for being soft. Juries are exempt from accusations of being parti pris because they do not have reputations in that way. Having a judge with a reputation decide on a verdict is likely to inflame speculation and allegations of cases being deliberately placed before certain judges. All the public perceptions of the judiciary of which the noble and learned Lord, Lord Ackner, spoke would be affected. In some high-profile cases, there may be a public perception that the judge is a man brought in to do a job for the state. The undermining of confidence in the judicial system could be very serious. I suspect that the Government have not thought through the potential consequences.
We have an adversarial system. One cannot cobble together a quasi-inquisitorial system simply by removing the jury. I know there are those in government and among those who lobby government who, looking for greener grass, really believe that an inquisitorial system would answer their hopes. However, the checks and balances that are necessary within any system would not exist. The clearly defined role of people such as the juge d'instruction would be absent. So I am afraid that simply removing the jury will not accomplish that goal.
Clause 41, which suggests that the accused should be given the choice of whether to have a judge or a jury trial, is very seductive. That word "choice" is, of course, very much the flavour of our time. However, it is the defendants in those very cases that attract public notoriety—such as sexual cases, where there is a strong, proper and necessary expectation of a jury trial by the public—who are most likely to apply for trial by judge alone. What you may then get is judge shopping and people saying at the door of the court, "Actually, forget the jury. Now that I am in front of a particular judge, I think I shall decide on judge trial instead". When that starts to occur it will discredit our system.
I turn to fraud trials. That is not how they are referred to in the Bill which refers to long and complex cases. I am concerned that the matter will not confine itself just to fraud trials but will affect many other kinds of trial and that bureaucratic creep will start to occur. I am afraid that we know who the bureaucratic creep is. Money laundering cases connected with drugs, money laundering cases connected with terrorism and all manner of cases which the public would expect to see tried by a jury will be tried by a judge alone.
As regards the whole issue of fraud there is something very distasteful about creating a system in which white collared professionals are tried by other white collared professionals. How will ordinary citizens, excluded from the process, feel about acquittals in those circumstances? We were told that the reason for reducing jury trial for fraud was that mere mortals could not get to grips with the complexity of such cases, despite the fact that most practitioners, whether prosecuting or defending, take a very different view. It is certainly not the case that fraudsters are getting away scot free. The conviction rate is 86 per cent.
The argument changed in the other place in the final debate on the matter when it was going to a Vote. Suddenly the Secretary of State said, "No, the issue is not about complexity and a jury not understanding the matter. We are concerned that we are not getting the proper mix and a fair reflection of society in juries who attend long trials because most people are too busy to do so. Juries in such trials will mainly be composed of people who are available for long trials. Therefore, you do not get the proper mix". But the truth is that you get very representative juries nowadays. More and more people are retiring early who have a huge wealth of experience in many fields. You do get the disabled person, the unemployed person and the mother of young children on juries. You get an incredible reflection of society as a whole.
But the interesting thing is that the argument about complexity and juries not being up to the task changed as it did not fit comfortably with the Government's argument that juries were smart enough to be able to deal with hearsay and previous convictions and that they were able to sort the wheat from the chaff. If the Government put forward that argument, they must show at least some degree of integrity as regards fraud trials. Suddenly we have a change of argument at a
very late stage. The argument now is about how representative the jury is in a long fraud trial. But I ask what is representative about one white male judge, as most judges are who try these cases?I turn from the issue of fraud to the issue of public interest immunity, which reveals a very important reason why the measure does not work. Increasingly, judges hear public interest immunity applications by the prosecution to withhold information from the defence. I wish to make clear to those who are not lawyers that this is about the prosecution saying to the judge in the absence of the defence, "Certain information came our way as a result of intelligence. An informant gave us that information. We do not want to have to disclose that material to the defence because of the possible repercussions". The defence obligation to disclose everything is limited when it may affect the good running of our investigatory system. The judge hears that application in the absence of the defence and he then says, "I am not going to make an order that this is disclosed to the defence. I do not think that is necessary but at some later stage I may, as the trial develops, have to change my mind". So what does one do in a situation where a judge is sitting on his own with material and facts at his disposal which he is supposed to then put out of his mind? Who will believe that he is capable of putting such factual material out of his mind when he reaches a verdict on the facts in a case?
I am afraid that not only is the measure's manifest unfairness clear to anyone but it is also contrary to the European Convention on Human Rights. There is now a suggestion of having a parallel judge who would solve the problem as he would deal with issues of public interest immunity. But how can that help when the trial judge is supposed to keep the issue under review as the trial unfolds?
Finally, I wish to deal with the issue of jury tampering. Of course there is always a risk that professional criminals might interfere with a jury. I was involved in one such case where that suggestion was made against one of the accused. All the members of the jury had to be protected and any unfairness was visited upon the other defendants who were not involved in any imputation of having interfered with the jury. When I hear it said that miscarriages of justice might follow from that, I should say that the jury in that case was perfectly capable of making distinctions between those who were guilty and those who were innocent.
Apparently, a jury might be removed where there is a real and present danger that tampering will take place. Of course, determining whether there is a real and present danger relies on intelligence. It is a little like the imminent threat of weapons of mass destruction and involves the same problems. It will be founded on the opinion of investigating officers who may see in it an advantage to the prosecution in making a claim that there is a real and present danger that a jury will be interfered with.
I have spent the best part of my professional life involved in terrorism cases. One managed to conduct all those cases with a jury and one was well served by
having juries in such highly inflammatory cases. Of course it is a price that has to be paid if we believe in jury trial, but the cases where jury tampering occurs are statistically very small. The occasional cost of a retrial or of jury protection is a legitimate price to pay for the wonder that is the jury.We are on a slippery slope here. I alert the Committee to the fact that it is a slippery slope. It is like a virus that will spread. Whatever the Government tell us about confining this part of the Bill to very few cases, we have to ask whether we trust the Government to do just that. I am afraid that trust is a precious commodity and at the moment there is perhaps less of it around than there was.
When the Government tell us that they have no designs on the jury system as a whole, we have to remember that the Government have previous convictions. As there are no rules to prevent your using those previous convictions in reaching your verdict on this part of the Bill, I urge Members of the Committee to do so. I say that previous convictions should not be taken into account but sometimes it might make a difference if we know that in the past we were urged to do away with jury trial in another area. Is this the beginning, yet again, of an assault that will lead to yet fewer and fewer jury trials? I am afraid that my suspicion is that that is what we are looking at.
4.15 p.m.
Lord Renton: The noble Baroness is fully justified, if I may say so, in not going the whole way with her own party on every occasion. Although I shall vote against Clauses 41 and 49 because they go too far in getting rid of jury trials, I feel bound to point out that there is an exception to nearly every good rule. I wish to draw the Committee's attention to an experience which I had which I believe illustrates that.
When I appeared for the defence in a fraud case of great complexity and with a lot of money involved before a jury, it lasted five weeks. It was very complicated. Most of the jury were not very well educated and found it impossible to follow the evidence and the arguments. Indeed, from time to time some of them fell asleep. When the five weeks were coming to an end, the High Court judge decided that he had to direct the jury, by implication, and that is what he did. He went a long way towards doing so.
Therefore, I favour giving power to the court to do without a jury if that is what the defence also wants and if the prosecution agrees. If the clauses are voted down in Committee, I shall come back with a narrow amendment on Report that would enable the court to try any lengthy, complicated fraud case without a jury if that is proposed on behalf of the accused and agreed to by the prosecution.
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