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Lord Donaldson of Lymington: I do not think that that is true. I particularly call in evidence our Home Secretary, Mr Blunkett, who certainly is not of the opinion that a decision by a judge is a decision of the establishment.

Lord Morgan: As a non-lawyer, perhaps the first to participate, I want to say very briefly why I am afraid that I cannot support the Government in the Lobby. Speaking as a non-lawyer seems peculiarly appropriate, because the law belongs to everyone. The matter is too serious to be left to lawyers, and my case is relevant because the point of the jury system is that jurors are not lawyers. They have no legal background or axes to grind in terms of their expertise.

As a historian, I totally disagree with the noble and learned Lord who has just spoken, who says that he finds it impossible or very difficult in our history to find examples of the jury acting as the bulwark of liberty. I find that a puzzling remark. The concept is rooted in our traditions. It is in and precedes the Magna Carta. I wonder whether it is even part of the Government's disrespect for the Middle Ages that they should offer the proposal.

I have two very brief remarks; we have had a long debate. I find very strange the idea in Clause 42 that jurors somehow might be thought too inadequate mentally or in terms of knowledge to understand the details of a case. As professional people, we have, as they say, a mission to explain. I have spent my entire life as a university teacher. One distinguishes between the accumulation and assessment of evidence and the reaching of a conclusion based on facts. One tries to do so not by assuming that one's pupils are foolish or stupid, but that they are intelligent citizens who can get to grips with it. So it should be and is in the case of a jury. A judge is there to direct a jury, and to explain technical details to it. As we have heard, verdicts are reached. It is important, not merely that the jury should be thought to understand, but that the public should be thought to understand. These are not arcane matters for an enclosed profession; they are for society as a whole. It is extremely important that Clause 42, which appears to contradict that proposition, should not be supported.

Further points could be made about the openness and the independence that the jury system enshrines. Those qualities would be compromised by judges deciding in secret conclave whether cases should be conducted with a jury or not.

I wish to follow up the observations of the noble Lord, Lord Maclennan, with which I very much agreed, that the issue relates to citizenship. Citizenship is a concept with which people in the United Kingdom have difficulty. Not long ago, we had great difficulty getting the word inserted in the Communications Bill. Citizenship relates to the doctrine of liberty and the

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doctrine of rights. That would be compromised, perhaps, by having two kinds of cases—those conducted with a jury and those conducted before a judge. Even more importantly, citizenship is about a doctrine of solidarity. It is about society acting together, and, in this case, publicly reaching its own idea of what are norms and values embodied in particular kinds of behaviour that one can accept, behaviour that one cannot accept and behaviour so unacceptable as to be deemed a crime. It is extremely important that that be maintained.

The jury system has been with us for centuries. It has survived King John at Runnymede and the rigours of the Second World War. I recall a distinguished judge and compatriot, Lord Atkin, who vigorously defended in wartime the maintenance of the full panoply of habeas corpus, our civil liberties and our judicial system. That is why we were fighting. The war was about defending our liberties. I recall as a historian reading the material produced by the Army Bureau of Current Affairs during the Second World War. It enshrined trial by jury as one of the supreme values that justified what the war was about.

I hope that the Government think again. I approve their other moves towards constitutional modernisation. I do not regard this proposal as modernisation. I hope very much that it will be rejected.

Earl Russell: The noble and learned Lord, Lord Donaldson of Lymington, tempts me to my feet; I had not intended to speak. I shall not follow the noble Lord, Lord Morgan, into the territory of Magna Carta, save to say that he is quite right. I am more concerned with the mundane matters of theft and minor felony. The great age of the jury as the bastion of liberty is in the first great age of the mandatory sentence, when one suffered the death penalty for any crime worth more than one shilling. Now we are entering what looks like the second age of the mandatory sentence. That case is beginning to acquire, again, a special merit.

It was my privilege this year to give the annual lecture at the Shakespeare birthday celebrations. The play was "Measure for Measure" and the text, of course, was mercy. It became clear to me as I worked on it that mercy, in that context, means an attention to the special circumstances of that case which distinguishes it from other cases in that mandatory category. It is necessary to look at whether there is genuine contrition, whether the crime was done professionally for profit, and whether there are mitigating circumstances that move to leniency. Those three urges to look at the evidence are a vital counterbalance to the mandatory sentence.

Juries regularly undervalued stolen goods in order to avoid a conviction of felony. In some cases, they reached special verdicts, which, until you look at the circumstances, are quite surprising. On one occasion, a man came home from work and found someone else in the act of raping his wife. He banged the man on the back of the head, which was the only accessible portion of that gentleman, and the man died. The jury reached a verdict that John Lellowe did it, the evidence having

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shown the presence of no such person anywhere near the scene. If we must have a mandatory sentence, we must have mercy, and the jury is its appropriate agent.

As the noble and learned Lord, Lord Bingham of Cornhill, said at the Second Reading of the Crime (Sentences) Bill in 1996, if you attempt to exclude discretion in one place, it bursts out in another. What better vehicle for discretion than the jury, which has studied all the facts of the case, unlike anybody who has merely read the transcript? The noble and learned Lord would do well to read some of the work of 17th century criminal historians, which is of very high quality.

Lord Donaldson of Lymington: I am persuaded by the noble Earl that I overstated my case. Without going back to further reading, there is ample material in relation to the life imprisonment mandatory sentence, which juries disregarded bringing verdicts of diminished responsibility. I had overlooked that. Where there is a mandatory sentence, I agree that the jury is invaluable. But we ought not to have mandatory sentences.

Lord Mayhew of Twysden: I enter with diffidence these arcane discussions merely to try to draw one perception from Northern Ireland and, secondly, to offer respectful comment on the speech of the noble and learned Lord, Lord Cooke.

In Northern Ireland for the past 30 years, during what is still called the emergency, certain defendants charged with serious offences have, for very necessary and proper reasons, been denied a jury trial. The corollary of that has been that judges, whether at the High Court or at the county court sitting as High Court judges, have had to act as judges of verdict and of law. There cannot be the slightest complaint about how those judges have discharged that task. On the contrary, they have behaved heroically. To my knowledge, no serious criticism has ever been made of the integrity, the impartiality or the professionalism with which they have dealt with those cases.

However, the fact has always remained, and remains today, that there are two classes of trial for offences of equal severity. One class has been denied jury trial by reason of an association with the emergency, or a presumed association with it, and the other class has had jury trial. That has given rise to grievances and perceptions that have been very inimical to public confidence in the judicial system.

This debate seems to be about the necessity for confidence in the jury system. From Northern Ireland one can draw certain perceptions. The first is that, all things being equal, the people strongly prefer jury trial, for the reasons that have been so well disclosed today—they scarcely need more than a passing mention from me. Pace the noble and learned Lord, Lord Donaldson, people see juries as offering a bulwark against a bully.

I could add another case to the two that the noble and learned Lord recalls in which the jury has gone against the weight of the evidence and the weight of judicial

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direction and done what it believed to be right because it thought that the law, whatever it was, was not being enforced in a way that accorded with its sense of what was sensible, proportionate and right. I think, therefore, that people see juries as a safeguard against a bully. They certainly see them as an independent institution—the importance of independence is very topical. People prefer their fate to lie in the hands of their fellow citizens. Perhaps they should not, but they do, and I am not in the business of telling them that they should not.

The second perception to come from the Northern Ireland experience is that mandatory discrimination between one defendant on a serious charge and another and according jury trial to one and denying it to the other is certain to engender grievance and a suspicious perception. Therefore, there is something to be drawn from the experience in Northern Ireland that may commend itself to the Committee. I hope that it does.

Lastly, I would like to say, with great respect, how much I enjoyed the speech made by the noble and learned Lord, Lord Cooke of Thorndon. I believe that I may be the only Member of your Lordships' House present today to be able to claim that I have appeared before the Court of Appeal in New Zealand when the noble and learned Lord, Lord Cooke of Thorndon, was president. From then onwards, I have entertained the greatest respect for that court, for its then president and for the entirely respectable way in which it disposed of my Spycatcher litigation.

The noble and learned Lord, Lord Cooke of Thorndon, said that trial by jury cannot be put higher than a cherished institution and that it was not a fundamental right. I agree, of course. It was extremely interesting as well as helpful to learn of the ways in which the jury system has been modified and adapted in New Zealand. However, I am not arguing for an unchanged system of jury trial because to retain it is to retain a fundamental human right. I believe that we should retain it because it is what the people want, for the reasons that I have outlined. At the moment, the system has the people's confidence in a way in which the alternatives proposed in the Bill, in my judgment, do not.

People see the jury system as an institution that is well tried and well approved, and one that carries valued advantages that would be lost by the suggested alternatives. Its replacement has not been electorally demanded. I did not find my argument holed beneath the waterline by the speech by the noble and learned Lord, Lord Cooke—enormously impressive and interesting though it was.

I conclude by offering this reflection. In many jurisdictions that derive from common law and owe their origin to this country, there are all sorts of variations that have been found to be acceptable and congenial in those respective countries. I hope that I will not be thought frivolous to point out that New Zealand has a one-chamber legislature, which is not a precedent likely to commend itself to the Committee.

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5.30 p.m.

Lord Brennan: To serve on a jury is an act of citizenship and citizenship is best understood within the history of the country in which it is being exercised, which for these purposes, is England and Wales. One can fairly say about the concept of citizenship in our country that it involves the right to have rights and the duty to perform duties. A jury trial exquisitely and democratically combines those two aspects of citizenship—one's right to be tried by one's fellow man and one's duty to participate in that process when called upon so to do. It is no doubt because we regard that as a fundamental value that the Government have included in this Bill the requirement for practically everybody to serve on a jury, whatever excuses people may try to put forward. What better vindication of its fundamental value in our society could we have than that provision?

Within our country such a value is not a myth, it is a reality: it is not sentiment, it is belief. The noble and learned Lord, Lord Mayhew of Twysden, was correct. We are not talking about human rights. We are talking, if the phrase is not too pretentious, about a fundamental value in which we have confidence. If that value is to be altered in legislation, it must be justified by serious, intelligent and convincing evidence and argument.

Many noble Lords on these Benches regard this Bill as an effective challenge to crime. Generally speaking, I accept the proposals about disclosure and double jeopardy. However, I stand firm on jury trial for the following reasons. First, on the provision in favour of trials without juries in long and complex cases, the Home Secretary himself said today or yesterday that he does not contend that juries cannot understand the evidence in such cases. If that is correct, the only concern that remains is the question of the burden upon the members of the jury who are asked to serve. Let us remember that all jurors are asked whether they are able to sit. If they have a reason not to, it is judicially considered. In all long cases juries sit as citizens throughout the process. We should not be concerned about the convenience of a particular juror when we are dealing with a fundamental value.

In this first sector of serious crime—usually fraud—I am for getting tough on fraud, but not for getting tough on the jury system. We are hopelessly weak in our attack on white-collar crime. I will briefly repeat the points that are obvious to us all. We do not have an organisation such as the SEC—the Securities and Exchange Commission—in America that pursues people early on and makes them pay massive fines to get out of a trial. We do not do that here. When people are brought to trial under the provisions of this Bill, there will be disclosure provisions that require defendants fully to explain the nature of their defence. With such a power of disclosure in the court, is it beyond the wit of the judge so to organise a fraud trial to crystallise the issue, require it to be phrased in plain English and restrict the number of counts before a jury? Of course it is not.

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We are becoming hypnotised by the system that we have used for so long. Case management, a single offence of fraud, or any such ideas have not yet been properly tried. Until they are, I stand with the jury. What is the alternative that we glean from the material around the Bill? The Serious Fraud Office is seriously suggesting, if I have read correctly, that it could produce yet more complex prosecutions if a trial could be before the judge alone. Such trials would undoubtedly take longer and be more expensive. They would require the judge to produce written reasons and would certainly not assist justice. On the question of serious long cases, if we vote for this system, we suffer a real risk of institutionalising in our society enormously long, complex and expensive cases, as if that were our way of doing justice. It is not.

My second point concerns jury tampering. My noble friend Lady Scotland, no doubt acting on the material given to her by her advisers, is reported to have said in one of today's newspapers that it is almost impossible to guarantee the security of jurors at present. It is an astonishing state of affairs in a mature democracy that we cannot secure the safety of jurors in our criminal process. However, we should add that neither can we guarantee the safety of witnesses, nor that of a prosecutor and, according to one of the examples given in some of the briefing material, not even that of a judge. There was an example a while back of a defendant seeking to get out of a case by planting into the judges telephone records a totally bogus call said to have taken place between the judge and the defendant, which was then used as an argument for getting out on appeal. It is simply wishful thinking to say that, because we can do without a jury, the system is bound to work. It is not necessarily so.

Is the priority to protect jurors, witnesses and prosecutors, or is it to tinker with the jury system? It would be an unhappy result if we were to pass the clause and it became a fact of life in this country that we could not guarantee the security of jurors. Can it be done? America proclaims the value of the jury system in a society in which crime has been far more organised, sustained and ingenious than in this country. On that ground, I stand for the jury.

Lastly, there is election by the defendant. In Clause 41, there is a considerable exercise in illogic, no matter how felicitously phrased, for several reasons. First, there is no guidance as to the circumstances in which a defendant may seek trial by a judge, instead of a jury. Other than the given exception, there are no indications of the standards that a judge is to apply in deciding whether to allow trial by judge alone. That is how the Bill stands. What will it mean, if we have such election? Surely, it means—implicitly, if not quite explicitly—that there are grounds in our democratic society to doubt the justice of a jury trial. We cannot have it both ways: we are either for the system, or we declare ourselves to have lost confidence in it.

The irony of Clause 41 is well demonstrated by the fact that it provides that a case in which a servant of justice is charged with an offence the nature of which

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appears to bring into disrepute or prejudices the administration of justice is the type of case for which we are likely to need a jury. Is that logical?

On election, tampering and fraud, I say, "Stand by the jury". However, I do not say, "Do nothing"; I say, "Do plenty—to get rid of the problems that are said to found the reasons for the change". If we have to vote at the end of our considerations today, the question will be whether we are convinced that it is a necessary step. Are we convinced, not only personally, but because we think that the majority of the community would agree with such changes in the jury system? I do not think that they would. One need not be a lawyer to make the analysis that I have just made; one must be a citizen who believes in jury trials. I do.

5.45 p.m.

Lord Alexander of Weedon: My Lords, I have listened to the debate with great interest, with great support for the views that have been expressed on the jury system and with ever-growing puzzlement as to why the Government are putting the suggestions forward.

There is little more that I would want to say on jury tampering than what my noble friend Lord Hunt of Wirral said two hours ago. If there is jury tampering, it should be dealt with in ways other than deprivation of such an important right, which is vested in the defendant.

As I understand it, there is total acceptance by the Government—this is why I respectfully demur from the approach adopted by the noble and learned Lord, Lord Donaldson of Lymington—that, normally, serious offences should be dealt with in this country by the jury system. If that is right, it is nothing to the point that judges are capable of judging cases fairly and well. We have long opted for the jury system.

I looked at the ground for the exception in the case of serious fraud trials. I own that, some years ago, when the Roskill committee reported, I was attracted by the idea of trial by judge and two assessors. Then it was suggested that one of the reasons for that was the need to ensure that a fair verdict was arrived at by a tribunal that understood the evidence. As I understand it, the Government have abandoned the suggestion that the jury cannot understand the case. Now that they have done that, the entire underpinning of their case has gone.

In several respects, dishonesty is at the heart of most such cases. It is desirable that the issue—one of fundamental truth—should be decided by a jury. The reasons have been given by others, and I shall not expand on them. The noble and learned Lord, Lord Ackner, mentioned the Justice briefing, which has been supplied to the Minister. It is possible to improve procedures in our jury trials to avoid and lessen the burden on jurors.

I commend to anyone who thinks that it may not happen a splendid book by Mr Trevor Grove, called The Juryman's Tale. He speaks of a long trial that conditioned his experience and led him to become a

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magistrate and write a subsequent book, The Magistrate's Tale. He comes to the conclusion that the jurors can understand such cases but, my goodness, they could be helped by improvements to the procedures. I agree.

I shall close by taking up a point made by the noble Baroness, Lady Kennedy of The Shaws. She made a point about control by the Government. I do so as gently as I can, as I am not an especially party-political person. However, I have, in recent years, become more and more concerned about the attitude of the Government to the value of the rule of law. It began with the attempt—made twice in a short space of time—radically to limit the availability of juries in minor trials. Those plans were kicked out by your Lordships' House, and that was applauded by the public.

I am sorry to say it but, this year, we have seen a Home Secretary who, on occasion, has undoubtedly made disparaging remarks about judgments that were given against him. It is the task of the Home Secretary to decide whether to appeal judgments that go against him: it is not his task to do anything that may bring our independent judiciary into disrespect.

In the Bill, there are certain disclosure requirements relating to the defence, including the requirement relating to expert witnesses, which have led no less fair, courteous, decent and able a judge than our Lord Chief Justice to put a paper in the Library saying that the provisions give unequal treatment—that is, they are not fair to the defendant, as against the prosecution. I would have hoped that no Lord Chief Justice would ever have seen it necessary to make such a charge against a government of our country. All that and the Government ask us to limit trial by jury and to leave the trial to judge alone when we simply do not know at the moment by whom those judges are to be appointed.

The Minister demurs, but perhaps I may remind her of an answer given by the noble and learned Lord the Lord Chancellor yesterday. The final decision would be made by a Minister. At present, that Minister is the Lord Chancellor. That Minister is legally qualified. That Minister is insulated from the House of Commons. That Minister and successive holders have a long and honourable tradition of preserving total independence in the appointment of judges. By contrast, the final appointer now, if the consultation paper goes through, is to be a Minister who will be in the Cabinet, contrary to the Government's avowed principles of separation of powers, who may be in the House of Commons and who need not necessarily be legally qualified. We simply do not know what will be the basis of their competence to preserve the independence of the judiciary and to choose the appropriate judges.

I hope that my fears about the ultimate aim of the Government in some of these reforms are unfounded. What I know is that until we actually know the degree of independence which is to go into the appointment of

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judges, until Parliament, which is the decision-taking body on this, has decided it, I would not go an inch to lessen the role of the jury.

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