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Lord Ackner: Before my noble and learned friend sits down, I wonder whether he has seen an article in the New Law Journal setting out a summary of the report of the Fraud Advisory Panel working party, which states:
My own experience as a judge working in this field in New Zealand was in an appellate capacity where quite frequently in my court over the years we heard appeals from convictions entered by judges who had tried a case alone on the application of the accused. I fundamentally disagree with any suggestion that a sense was created of untrustworthiness in the legal system or anything of that kind. To my knowledge, the system worked perfectly satisfactorily. On the other hand, we had previously found that some convictions by juries were vulnerable because the juries appeared to have been swayed by emotions induced by the manner of the prosecution.
Lord Hooson: I had not intended to say very much today, but I have been provoked by considering Clause 42 in relation to espionage. There has been much discussion today about fraud and other trials of that kind. Let us imagine that an espionage case is brought in this country. Very few such cases have been other than pleas of guilty in our history. However, I happen to have been involved in one particular case which was tried by jury. If Clause 42 became law, undoubtedly there would be an immediate application by the Crown in such a case that the matter should be tried by a judge alone; that it would be far too complicated and difficult for a jury to try.
It so happens that in what became known as the Cyprus spy trial, a trial which lasted over six months at the Old Bailey, I was one of the defending counsel. Young servicemen were charged with espionage. It involved the safety of the country and NATO and the whole trial was held in camera. Because of the nature of the charges, the jury panel was positively vetted and was probably the most intelligent jury I have ever seen in my experience at the Bar. Jury members were selected, and so forth. Objections were raised to one or two. There was no reporting of the case, and we all had to take the oath not to disclose anything that went on in the trial.
However, it is interesting that at the end of that trial the most intelligent jury which I have ever seen took over a week to consider its verdicts. Six young servicemen were separately charged with espionage. The jury found them not guilty on each charge. Looking back, it is my belief that the particular judge who tried that case might well, although I do not know, have reached the same conclusion.
When one considers what the sentences might have been, it was of vital importance that the case was tried by a jury. That was also very important from the point of view of this country. I make no secret of the fact that
However, as there has been no mention of espionage, and as I happen to have been involved in that case, it is as well that I should bring it to the attention of the Committee. I do not know whether anyone here would suggest that the government of the day with that clause would have tried to ensure that the trial was by judge alone rather than by judge and jury. I can think of many judges who might have reached exactly the same verdict as the jury. I believe that the learned judge who tried the case might well have done. However, I can think of other judges who I know quite well who might have taken a very different view. That is why, from my own experience of that particular case, trial by jury is essential. In that kind of case there should not be an opportunity for the establishment to apply under Clause 42.
Lord Clinton-Davis: I rise to oppose my noble friend. I do not do that easily or often. However, on this occasion I think that the case that has been made by a number of Members of the Committee is almost irrefutable. When one considers the views of organisations such as Justice, the Bar Council and the Law Society, none of which are averse to changes in the law, such views are persuasive. They are wholly against the ideas which have been advanced by the Government, particularly as regards the three items mentioned by the noble Lord, Lord Hunt.
My view is that the burden of proof rests very heavily upon those who want to change the law. As far as I can make out, what is being advanced by those who argue for these provisions is based on belief that in certain cases it is safe to dispense with juries. But, frankly, belief is insufficient. The burden of proving that the system of justice can be improved falls on those who put forward these solutions. Therefore, I think that belief is insufficient. We are not talking about 30 or 40 years ago, we are talking about the present situation.
None of the organisations I have mentioned can be accused in any way of being conservativewith a small "c". In their time, those organisations have put forward vital, important and, in my view, essential provisions for strengthening the law. It is true that certain police organisations have come out in favour of the change which is being advocated, but they are all concerned with the prosecution of offences. Therefore, not one organisation of repute, which is concerned both with prosecution and defence issues, supports these proposals.
My view is based upon some 50 years of practice as a solicitor. In the debate so far, only the noble Lord, Lord Hunt of Wirral, and myself represent that particular profession. In that time, I have never come across a situation in which a jury was totally misled or totally foundered upon the evidence that was put forward by the prosecution. Members of the jury come forward with their own ideas. As has rightly been said,
In my view the jury system, even in complex cases, answers the bill. There are certain instances in which there should be more co-operation between the prosecution and the defence. I also believeand I speak here from experiencethat where there is such co-operation, the cause of justice is improved immeasurably.
I turn to jury tampering. As I said at Second Reading, when I was defending I came across one particular incident in which the argument of jury tampering was advanced. It resulted in a total acquittal of the defendants. Of course they had a brilliant advocate at the time. That apart, the case which was put forward was vitally flawed. I do not think that we should consider a right to trial by jury being abrogated because of something that may happen in the future. It may well be that there is some evidence of jury tampering, but surely there are other means of protecting juries that could be tried.
On what evidence is the removal of juries wholly justified? I think it is slender. I return to the point I made right at the beginning. I do not think that the evidence should be slender: it should be firm and irrefutable; and that is not the case.
Lord Mishcon: Perhaps I may be allowed a short speech, an anecdote and an observation. The anecdote is forever written on my heart. I mean that without being emotional. It occurred many years ago when I was a young advocate appearing at Bow Street on a very unimportant case. The chief magistrate was there looking after his court.
While I was waiting for my case to come on, I witnessed a trampthat is what he looked like. Incidentally, this was in the days before legal aid. He was accused of having stolen a wallet in St Martin's Lane by the trick of sidling up to someone who was on the pavement and asking him the time. The gentleman supplied the information. He then found his wallet was missing and the person who had asked him for the time was speeding up his walk along St Martin's Lane.
The magistrate had no doubt whatever in discarding the story that the trampnot very vocallytold. It was that he had genuinely asked the time and wanted to know it because he had an appointment very near St Martin's Lane. The magistrate said: "There's too much of this going on. It's always the same storysomeone asking the time. You're guilty and I want you please to go below while I have a report".
One of the reasons why I shall go into a certain Lobby if there is a Division is because I cannot forget that case. I am quite sure that a non-case-hardened jury would not have found that man guilty. Certainly, they would not have done so after a plea from an advocate, which was not heard in that court on that day, indicating that the onus is upon the prosecution and not upon the defendant.
I now make my short observation. I say with certainty that if any Member of your Lordships' House was charged with any offence covered by this clause or Clause 42, there is not a lawyer available, either here or elsewhere, who, upon being asked to advise on whether that Member should go before a judge or be tried by a jury, would not say to him that if he valued his reputation and it meant so much to him, that he should choose to go before a jury.