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Lord Borrie: My Lords, Clause 43 gives the prosecution the possibility of asking for a judge-only trial, provided that certain conditions are satisfied relating to the burden that there would be on a jury, if it were a jury trial, and to the complexity of the facts. It has been said, particularly by the noble Lord, Lord Hunt, that if there is any difficulty in the jury comprehending the details of a fraud indictment, the case should be simplified because juries certainly understand the difference between honesty and dishonesty. There are dangers in that, however, as my noble friend pointed out, if the details of the prosecution case are withheld from the jury. If it does not get, receive or hear evidence about the details, the full force and strength of a prosecution case may be diminished.

I shall dare to repeat what may have been mentioned in Committee. The Government's White Paper, Justice for All, stated in 2002 that,

Perhaps I may raise a point that has not yet been raised today. Who actually constitutes the jury in these complex cases? Is it really randomly selected? In the Maxwell case, 700 jurors were called and 550 were excused. Juries in these complex cases are likely to be less representative of the general community than in the norm of criminal trials, and they are unlikely to be peers of the people sitting in the dock. I fear that the jurors called who are not excused may be least likely to have experience of accounting or business. People running their own businesses and people with significant positions in industry and the professions are most likely to be excused jury service.

I fear that not enough was said during earlier stages of the Bill about the length and difficulty of some fraud cases. The Maxwell case, to which I referred, began in May 1995 and lasted until January 1996. It resulted in an acquittal to defraud the Maxwell pensioners of 122 million. The jury took 12 days to reach its verdict. It had taken 131 trial days and the cost was reported as being about 20 million.

In November 2002, The Times reported the acquittals of certain businessmen, the chairman of a company and finance directors who had been charged with fraud—

The Earl of Onslow: My Lords, is the noble Lord saying that those accused of the Maxwell fraud are guilty and the jury got it wrong?

Lord Borrie: My Lords, I would not have the impertinence to draw any such conclusion. I am talking about how lengthy such cases are and how

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difficult it is to find jurors, particularly those with experience of business, to sit for the number of days required in order to determine the matter.

Lord Thomas of Gresford: My Lords, is the noble Lord suggesting that judges should have experience of accountancy and business?

Lord Borrie: My Lords, frequently they have and they can certainly understand more readily than many of us what is explained to them. I do not want to lengthen the debate, so perhaps I may put in parenthesis the fact that I would prefer a system whereby the judge sat with assessors who were particularly knowledgeable of finance and so forth. That suggestion is not before us in the Bill. There should be jury trials in every case or, alternatively, the possibility of requesting that it be a judge-only trial. That possibility, subject to conditions and to appeal as provided for in the Bill, deserves the support of Parliament.

In conclusion, it is worthwhile drawing attention to an article which appeared in the Financial Times two or three days after our debates in Committee by a former head of the Serious Fraud Office, Miss Rosalind Wright. She suggested what were the advantages, at any rate in some cases, of trial without a jury. She mentioned that the judge,

    "could read the documents in advance of the trial and cut through the swathes of paper in the courtroom; he could ruthlessly limit cross-examination and speeches; he could give a reasoned judgment at the conclusion of the proceedings"—

juries, of course, never give reasoned judgments—

    "which would assist both prosecution and defence in understanding how the verdict was arrived at",

and no doubt be of assistance as a precedent in later cases.

There is a strong case for allowing the Commons view to prevail—that there should be a possibility of asking for a trial by judge alone—and I hope that we will not persist in this House in continuing opposition to that.

3.45 p.m.

Lord Morris of Aberavon: My Lords, I regret that I was abroad when the House last discussed juries. The House will be cheered that I will not repeat the arguments used on that occasion. The debate has been broadened by the Opposition into some observations which appertain to the next clause and it may be convenient if I deal briefly with both.

First, I am fundamentally opposed to tampering with the right to trial by jury—either at the instigation of the prosecution or the defence. Secondly, although I cannot go into the Lobby to support the Government, I accept with regret that at this juncture the views of the elected House must prevail.

As a practitioner in criminal law all my working life, save for the 13 years as a Minister and a senior Law Officer of the Crown, I believe that in the overwhelming number of cases the jury system in England and Wales

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works with young or old jurors, short or long trials, simple or complicated trials. That has been my experience most of my working life.

Since 1972, when the Criminal Law Revision Committee reported, there have been repeated attempts in one direction or the other to limit jury trials. In each case, one or other House of Parliament has resisted such attempts.

The Government have rightly watered down their original proposals in Clause 42. Their original proposals were unsustainable. There remains the only part of reform where I have a real sympathy for such trials which are really burdensome to jurors.

The longest criminal trial in which I was involved began in February and finished in September. All of us felt the burden. But is this enough for a change? I welcome Clause 42(6), respelling the duty of the judge to reduce complexity or length. A more active judicial role is to be welcomed. The Court of Appeal from time to time has dealt with the question of overburdening the indictments.

But before the House embarks on this unhappy part of the legislation, perhaps I may quote what was written a long time ago—more than two centuries—by Blackstone in his commentaries. He stated:

    "The truth of every accusation . . . should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours, indifferently chosen, and superior to all suspicion. So that the liberties of England cannot but subsist, so long as this palladium remains sacred and inviolate; not only from all open attacks (which none will be so hardy as to make)—

he did not reckon with Mr Blunkett—

    "but also from the secret machinations, which may sap and undermine it; by introducing new and arbitrary methods of trials by justices of the peace, commissioners of the revenue, and courts of conscience. And however convenient these may appear at first (as doubtless all arbitrary powers, well executed, are the most convenient), yet let it be again remembered, that delays, and little inconveniences in the forms of justice, are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concern.".

I commend those remarks. If we are to go down this road, I hope that Blackstone's Commentaries will be remembered when we next discuss it.

Viscount Bledisloe: My Lords, the noble Lord, Lord Hunt, will have very successfully curdled the blood of the House by reciting some of the comments made by Mr Blunkett in another place about your Lordships' House. If Mr Blunkett considers it necessary that we have a Speaker in this House in order that the Government may get their way, I should have thought that he will have fairly conclusively decided for this House how it will feel about that. I am very pleased to see that the noble and learned Lord, Lord Lloyd of Berwick, is in his place to hear those views so that he may take them into account in his committee.

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The noble Lord, Lord Hunt, and others, have made a very powerful case for the right to a jury trial. But surely the amendment currently before the House—Amendment No. 32—concerns the question of the defendant's ability to abandon that right. Surely it is a corollary of every right that one is entitled not to exercise it. I have to confess that I find the noble Lord's case on that amendment far weaker than his case on the others, where the right is being taken away from the defendant rather than being voluntarily surrendered by the defendant. If the noble Lord is minded to test the opinion of the House, I wonder whether he will consider it more appropriate to test it on the later amendments, where the right is taken away, rather than on the defendant's right to surrender his right. At present, I cannot understand the objection to that.

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