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Noble Lords: Hear, hear!

Lord Phillips of Sudbury: Thank you. I have a strong source of intelligence about what the great British public think about our legal system and its defects. The flow of letters—about 100 a week—into that programme is totally unmediated.

For my money, the problem is not that an unselected, random group of citizens is currently sitting on fraud trial juries. The public are not daft. They understand that the unbelievable difficulties of following those trials, if one has no financial experience, training, or numeracy, make the process a near farce. We should not be caught up in recollections of Henry Fonda in "Twelve Angry Men". The jury is wonderful for a typical case involving violence, dishonesty, burglary, where there is a match between the jury, the accused and the case, but not in complex fraud trials.

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I conclude with a further quote from Mr Staple that puts the finger on the myth of jury comprehension. He stated in his letter to me,

    "When the time comes, at the end of the process, to reach a verdict, the juror is expected to recall with clarity evidence which may have been presented to him many months before and take it properly into account when reaching his verdict. Subjecting lay people to this process is not to my mind best calculated to ensure that in the most complex and difficult cases the juror will be free from doubt and thus be sure of his verdict".

That is the nub of it. I am powerfully in favour of jury trials, but powerfully, I hope, realistic about the particular problems of complex fraud cases. I would like to think that the central proposal of the amendment takes what is already happening informally to a point where one would have competent juries dealing with the cases that need such expertise and experience. I beg to move.

Lord Brennan: I want briefly to comment on the proposal. The eloquence of the noble Lord's presentation of the amendment does not overcome its inadequacy as a proposal. I shall deal with it in four ways. First, good taste requires me to limit the kind of anatomical metaphor that might be appropriate, so I shall content myself with saying that the noble Lord has got it back to front. In his analysis, he accepted the present system as the norm. I vigorously challenge that. It should not be the norm. Why should we put up with trials that go on for months on end? Why should we allow lawyers to tell us that it is so complex that one can understand it only when one has looked at it for six months? It is absolutely ridiculous. We should change that system in favour of the jury. The example of America that the noble Lord gave merely illustrates the fact that if one is tough up front in regulatory control, one dramatically reduces the number of trials that are necessary for fraud.

I shall move to my second point. I did not follow it up with the noble and learned Lord, Lord Cooke of Thorndon, in the previous debate for reasons of time, but I reject his historical analysis. The passage of our democratic history in the 20th century, which led to ordinary people having the vote—emancipation—was matched by their having the right and duty to act as jurors. The history books on the law show that it was regarded as a great democratic advance that ordinary folk would judge as jurors. I am completely against, in a democratic sense, the idea of any kind of special jury.

The third point that I must regretfully criticise is the idea that the people on the panel of special jurors should be determined by a Secretary of State. I cannot believe that we would want to create a jury system in which those chosen were the product of government nomination to the panel from which they were chosen.

Lord Phillips of Sudbury: I thank the noble Lord for giving way. Perhaps I may relieve him of angst on this point. I am certainly not suggesting that. I am suggesting that the means by which the selection would

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independently be carried out would be laid down in the normal way by the Secretary of State, as it would be in many other parts of the Bill.

Lord Brennan: My legislative immaturity would be greatly advanced by an explanation of how the Secretary of State is to identify and organise lists of those eligible, without his being involved in a decision about who is on the list. No doubt, the noble Lord can amplify that if the amendment is pursued.

I turn to my fourth and final point, which is probably the most important of all in my critique. I am strongly against any accommodation in our debate about jury trials. Either one is for that system or one goes for a completely different approach. I would much prefer a judge alone to six special jurors. In making that remark, I do not see how the confidence of the public would be assisted by a system in which they saw the judgment of guilt or innocence in a fraud trial, from the City, for example, determined by people from the City. That would not produce the confidence that is essential.

The noble Lord must forgive me. I have been extremely harsh towards his suggestion, but for, I hope, good reasons. I admire his good intent. I simply suggest that, on this occasion, it is misplaced.

Baroness Scotland of Asthal: I thank the noble Lord for moving this amendment. I do so because he engages with the debate in terms of what we need to do to respond to the pressure placed on the system by the nature and extent of such cases. Therefore, I commend the noble Lord for attempting to enable us to have a discussion about where the proper boundaries may be.

Having said that, I am afraid I must say to the noble Lord that we do not consider these proposals to be workable. However, I understand that he put them forward very much in the spirit of the Committee stage—that is, to enable us to explore, discuss and hone, although it appears that we may be deprived of that advantage. I shall deal with this issue as quickly as I can.

The proposal put forward by the noble Lord suggests an alternative solution to the problems of dealing with long or complex fraud cases by giving the court the option to try complex and/or lengthy fraud and fraud-related trials before a "special jury" following applications from either the prosecution or the defence. As the noble Lord said, both Roskill and Auld considered, and rejected, that option. Therefore, I feel that I am probably in good company when I say that it is not necessarily attractive to the Government either. Perhaps I may say why.

The noble Lord, Lord Brennan, raised the question of the selection of juries. To the following extent, I empathise with what he said. The idea that the jurors serving on such cases essentially would be self-selected jury enthusiasts involves a significant departure from the principle that jurors are selected randomly from the population local to the Crown Court in question. The Government would need to be sure that the

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benefits of a special jury would outweigh the undesirability of compromising the principle of random selection. It is not at all clear that that would be the case.

There is no evidence to support the assumptions underlying the proposal that a special jury would be more competent than an "ordinary" jury or deliver better verdicts, or, conversely, that ordinary juries are doing a poor job. However, I very much take on board what the noble Lord said about the attempts that we have made in terms of the questionnaires to ascertain whether jurors have any conflict of interest. I also take on board the fact that the noble Lord said that, on a number of occasions, issues of literacy have been highlighted. That would obviously make some of the trials, which are heavily dependent on the consideration of detailed documents, a challenge for some jurors who may feel that they are thereby disabled from engaging fully in the process. Therefore, I hear what the noble Lord says in relation to that.

What the noble Lord, Lord Brennan, and other noble Lords said in the previous debate was also important inasmuch as the Government argue that all attempts to simplify fraud trials, in particular, and to make them as clear as possible should continue. Therefore, nothing that I said in relation to the previous set of clauses or, indeed, to this amendment should be misunderstood in that we do recognise that attempts to manage the process better must continue.

Although I understand the import of what the noble Lord seeks to do in relation to these amendments, we had come to the conclusion that the choice should be between a full jury and a judge alone. It is hoped that a judge alone would be able to make impartial decisions. Noble Lords will know that historically it was suggested that if interested groups were involved—for example, in relation to insider dealing issues—then it might be thought that, because it was a matter of common practice, it was therefore permissible. But, in fact, the judge must say, "It may be common but it is unlawful". Therefore, having heard from the defence about common practice and from the prosecution about illegality, a judge alone may be able to make such a distinction.

We understand why the noble Lord has tabled the amendments, but, for all the reasons that I gave previously, we do not believe that they meet the required needs. Therefore, we must consider the choice between a full jury and a judge alone.

Lord Phillips of Sudbury: I am most grateful for the contribution of the noble Lord, Lord Brennan, and for the Minister's careful summing up. I believe it is a common-sense proposition that in phenomenally complicated matters of law and fact, people of competence and some experience are needed to deal with them. I do not accept that we would be moving into the territory of what the Minister described as "self-selected jury enthusiasts". That certainly would not be the case. I believe that an irreducible complexity is involved in these matters, however well one manages the case. The noble Lord, Lord Brennan, may go on

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about what happens in America, but we are not in America; we are here. People have been trying to simplify fraud trials for years with little effect.

However, time is getting on. No one is supporting me. I am a thin-skinned fellow and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 132ZB to 132ZF not moved.]

[Amendment No. 132ZG had been retabled as Amendment No. 132ZDA on the Marshalled List.]

Clause 42 negatived.

Clauses 43 to 46 negatived.

Clause 47 [Further provision about trials without a jury]:

[Amendment No. 132ZH not moved.]

Clause 47 negatived.

Clauses 48 and 49 negatived.

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