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Lord Taverne: I have not spoken in the debate previously and I do so with great hesitation and humility, because it is a very long time since I had anything to do with the law. For the reasons which have been advanced by my noble friend Lord Thomas of Gresford and by the noble Baroness, Lady Kennedy, I do not accept the
arguments in favour of Clauses 43 and 45 and I do not support all parts of Part 7. In general, I accept the arguments for juries in serious criminal cases, but I am sorry to say to my noble friends, with whom I part company on this matter, that I am attracted by the arguments in favour of Clause 41 and by the amendment proposed by my noble friend Lord Phillips to Clause 42.I shall make a few brief, general remarks. I worked at the Home Office a long time ago. We found that the legal profession tends to oppose many reforms. It is a very conservative profession. The first question that arose when I arrived at the Home Office was whether we should have majority verdicts in jury cases. There was unanimous opposition from the Bar. The sky would fall if there were majority verdicts. The Criminal Bar Association was passionately opposed. It made official representations to the Home Office at that stage and argued that majority verdicts would be a disastrous development for criminal justice.
Leaving that aside, I also remember that earlier, during the time when a certain number of cases were subject to jury trials in civil proceedings, there was again strong opposition to any curtailment of jury trials in civil proceedings. I remember the late Lord Hailsham, when he was still Quintin Hogg, saying that there was a simple rule at the Bar. If one had a good case, one went for a judge; if one had a bad one, one went for a jury. In the case of Clause 41, it would be wrong to say that a member who thinks that he has a good case for the defence, and thinks that there may be prejudices against him if he goes for a jury trial, should not be allowed to opt for trial by judge. For once, I am not convinced by the arguments of my noble friend Lord Thomas of Gresford. He cited a number of examples—they seemed to be examples—where the defendant thought that there would be great prejudice against him. Therefore, in the case of Clause 41, there are reasons why it should be legitimate for a defendant to opt for trial with a judge alone.
Lord Lloyd of Berwick: I support the powerful speech of the noble Lord, Lord Hunt of Wirral, and those who have spoken after him to the same effect. I confine myself simply to Clause 42, which was another clause that was barely considered in the House of Commons.
There only ever was one plausible argument in favour of the principles behind Clause 42. That was that long fraud cases are too difficult and complicated for juries to understand, and that they have therefore acquitted in cases where they should have convicted. I said that was a plausible argument; it never was the case, as has now been conceded, I understand, by the Lord Chancellor in his speech at Second Reading. He specifically disclaimed any reliance on the argument that juries are not competent to decide those cases. One will find that in Hansard of 16th June, at col. 560. The noble Baroness, Lady Kennedy of The Shaws, made the powerful point that the Government's position has changed during the months.
I cannot speak from personal experience of ever having tried a long fraud case, but perhaps I may speak from the experience of others. Of course, juries do not
always take in every detail of a long case—one would not expect them to do so—but they are well capable of grasping the essentials. In most cases, as noble Lords will hear again and again this afternoon if they have not done so already, those long cases boil down to one essential point—does the jury believe the defendant or does it not? The essence of all such long cases is ultimately a simple question of dishonesty. Anybody with experience of those cases will confirm that juries have a very good nose for dishonesty.Moreover, it is simply not the case that juries are failing to convict in cases where they should convict. A figure was given by the noble Lord, Lord Thomas of Gresford, today. I thought that the figure that was given to us last time for long fraud cases was 92 per cent, not 86 per cent. That figure seems suspiciously high. I cannot believe that it is as high as that, but in any event, nobody is now suggesting that the rate of conviction in those cases is too low.
If fraud cases are not too difficult for juries to decide, what else is said? It is said, simply, that they are burdensome. Well, of course, they are. They are burdensome for judges, too. The remedy surely lies in the hands of the judges themselves. I return to a point that was very well made by the noble Lord, Lord Brennan, at Second Reading. How are the judges in these cases to try and limit the issues and simplify them for the purposes of making them easily digestible by juries? I remember a very wise and experienced criminal judge—and he will be remembered also by all the lawyers in the Chamber—Lord Justice Farquharson. He showed the way. At the start of any long fraud case, he would fix leading counsel for the prosecution with a beady eye. He would see an indictment with 10 or 12 counts, or however many it might be, and he would say to leading counsel, "Now, which are your four best points?". From then on, the trial would proceed on the basis of those four counts. All the rest would be swept aside. Judges ought to do something similar to that in order to make such cases—not easier to understand, because that point is no longer relied on—but less burdensome.
If fraud trials are made shorter and less burdensome, as I believe they can be, and if they are not too complicated for juries to understand, as is now conceded on the Government Benches, why do we need to change the law at all? The answer is that we do not. So long as juries can be found to try those cases—and they can be found—surely a defendant is entitled to be tried in our traditional way, by a traditional jury. If we allow Clause 42 to take its place on the statute book, it will mark the beginning of a very slippery slope. I thought that those were my words until a speaker earlier today pointed out that those had been the words used by the shadow Home Secretary in the House of Commons. I am glad to see my not very original words have that additional support.
I do not know what the fate of Clause 41 will be. I hope that it fails. But if it does not, I shall want to vote against Clause 42, and I hope that those on all sides of the House today who share my feeling for justice will do the same.
4.30 p.m.
Lord Cooke of Thorndon: I regret that on this matter I must differ from some respected, eminent and eloquent colleagues of Bench and Bar. It may well be that I swim against the tide of sentiment, but is it not indeed largely a tide of sentiment and myth? The Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the European Convention on Human Rights do not speak of a right to trial by jury. What they all require is an independent and impartial tribunal.
The so-called "right to a jury" is cherished in images of the English legal system and derivative systems, as the debate this afternoon has demonstrated. It is dear to the hearts of many lawyers. But it cannot be put higher than that. It is not fundamental. Such has been the verdict of well-informed reviews; for example, the Roskill report of 1986, the Narey report of 1997 and the Auld report of 2001. Auld recorded that only about 1 per cent of criminal cases in England and Wales are tried by jury. Percentages of that order may be seen as suggesting that the emotions raised by this subject are out of all proportion.
The English system of criminal procedure has undergone seismic changes over the centuries—some relating directly to the jury; others relating to the procedure before the jury. Once, jurors were men of the locality, summoned because they knew the facts of the case and could explain them to the itinerant justices. As late as the end of the 17th century, it was established doctrine that if the jurors knew something about the facts, they should act on that knowledge where it contradicted the evidence of witnesses. Now, however, knowledge of the facts of a case would be regarded as making men and women unsuitable to act as jurors in it.
Until the mid-19th century, a person accused of felony was not even allowed to address the jury through counsel. It was not until the later years of that century that the accused was given the right to give evidence himself before the jury. Again, in the 1870s, a category of offences triable either way—"hybrid offences"—was introduced, irrespective of the defendant's consent. Majority verdicts were introduced in 1967.
In the light of history, it cannot be suggested that some modification of the law of jury trial in this country would transgress any fundamental principle.
Clause 41 gives the accused, within limitations, a right to trial by judge alone. A broadly similar provision has been in force in New Zealand for some 20 years or more—so, too, in Canada and some Australian states. In New Zealand, it does not apply if, having regard to the interests of justice, the judge considers that the accused should be tried with a jury. One can compare the exceptional circumstances provisions in the Bill in Clause 41(6), (7) and (8).
The other New Zealand limitation is that the accused's right to a judge alone does not apply when the maximum penalty is imprisonment for life or 14 years or more—for example, in cases of murder, manslaughter, aggravated robbery and serious drug offences.
The New Zealand provision has worked successfully. It has been invoked by accused persons typically in cases of alleged white-collar crime—a field in which it had been found on appeal that an over-emotional presentation of the prosecution could produce a verdict unfairly prejudicial to the defendant. Thus, in a case of alleged fraud, a parade in the witness box of prosecution witnesses being widows who have lost not only their husbands but their money can be a dangerous precedent in a trial by jury.
Clause 42 of the present Bill goes further than the New Zealand provision in enabling a trial by judge alone against the wishes of the accused in certain complex or lengthy cases—that is, financial or commercial cases or those relating to property—where, in the words of the Bill, there would be,
- "an excessive burden upon the life of a typical juror".
As for detail, the only amendment proposed is that tabled by the noble Lord, Lord Phillips of Sudbury. That appears to provide for a special jury of six in Clause 42 cases. All special juries were finally abolished in England and Wales in 1971. In the words of Halsbury's Laws of England:
- "A special jury was a jury consisting of persons who . . . were of a certain station of society, such as esquires, bankers, merchants, etc".
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