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Lord Renton: My Lords, I support what the noble Viscount has just suggested. In Committee, I mentioned an immensely complicated fraud case which lasted for five weeks. By the time the case had gone on for two or three weeks, the jury, which largely consisted of not very well educated people, did not have a clue what was going on. Therefore, I feel that a degree of flexibility in this matter is necessary. If the defendant wants a jury, he should have it. But if he feels that he is not obtaining justice with the aid of a jury, a jury should no longer be inflicted on the court.

Lord Davies of Coity: My Lords, I know that it is rather dangerous for someone who has not been directly involved in the judiciary to trespass on this debate. Nevertheless, I sometimes think that those closely involved do not see the wood for the trees.

The noble Lord, Lord Hunt, was very critical of my right honourable friend the Home Secretary in regard to a pyrrhic victory. I am not sure what point was being made, although he referred to the Oxford Dictionary. But I believe that the general understanding is that a pyrrhic victory does not have very much value.

I believe that if we want justice to prevail, our legislation must ensure that that happens. Having considered this matter, the Government found that some fraud cases are rather prolonged, generally organised crime is involved and no one supports the culprit. We want to preserve the protection of the victim. Consequently, the law enforcement associations in this country support what the Home Secretary is putting forward. I do not want us to enter into an academic judicial argument of principle when the practical application should ensure that justice prevails in this country. The British people should be supported by a system which ensures that the guilty are, in fact, convicted. I hope that this House will support what the Home Secretary is doing.

Lord Ackner: My Lords, I want to make one or two short interventions on this matter. Reference has just been made to the right to surrender the right to a jury in complex cases. If that right is given, why should it not apply to all cases? That, indeed, was one proposal in the Bill. The answer was simply that if there is a right in all cases, when the jury sit in a jury case, in a number

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of cases they will say, "Why hasn't he chosen a judge alone? This surely means that he is trying to pull the wool over our eyes". Largely for that reason, the proposal was rejected and, I believe, rightly so. I believe that we should have a trial process which is appropriate throughout.

My second point is that the percentage of success in long fraud cases was quoted as being, I believe, in the region of 80 per cent. I stress that that figure was achieved without the procedure alterations which have been advised and to which the Government have paid no attention at all. There is no reason not to expect that the figure of 80 per cent will increase if the procedures are improved. Therefore, I suggest to your Lordships that the amendment is not appropriate and that we should stick to juries throughout.

Perhaps I may remind your Lordships that jury trial carries the perception of a better class of justice—certainly with the minorities. That perception will not be brought to an end. It is based in part on sheer prejudice but also in part on the fact that judges subconsciously have a bias pro prosecution. That is understandable. At least 90 per cent of prosecution cases have been thoroughly investigated and proceedings brought as a result. The judge becomes case-hardened and says to himself, consciously or subconsciously, "I have heard all this before". That is one reason for the perception. But the perception is there; it is very strong; and we ignore it at our peril.

Baroness Scotland of Asthal: My Lords, I have listened with great care to everything that noble Lords have said. I was a little surprised by the lack of temperance on the part of both the noble Lords, Lord Hunt and Lord Thomas of Gresford. Noble Lords will know that, on occasions too numerous to mention, I have commended your Lordships' House for the dedication and thoroughness with which it has addressed these issues. But perhaps I may say with the utmost gentleness that I do not consider the way that the issues relating to juries were dealt with necessarily have been your Lordships' finest moment.

This House has had a tradition of scrutinising Bills thoroughly and well. First, we debate them extensively in Committee. It is our custom to use the Committee stage for that purpose. We discuss Bills clause by clause, often examining the pros and cons of each and every comma and word in the clauses. However, we did not give Part 7 of this Bill our customary care. Your Lordships will know that we had one long, extended and very full debate, after which the whole of this part of the Bill was struck down. We thus deprived ourselves of our usual opportunity for detailed scrutiny. That is something which, speaking entirely for myself, I deeply regretted.

One of the joys of going through a Bill—a joy it is on occasion, although not always—is that we are able to debate together with great particularity how we should weigh one element of a Bill against another. After that, on Report, we usually craft something which we can then go on to divide upon where we disagree. Before we congratulate ourselves too much,

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it is right that we should have the humility to accept that in dealing with Part 7 we did not do that. Some noble Lords will say that thereby we did not do our duty, so I deeply regret the failure of this House to engage in detailed and constructive debate on these provisions.

4 p.m.

Earl Russell: My Lords, is the Minister making a virtue of the fact that the Bill suffered from a lack of defenders?

Baroness Scotland of Asthal: No, my Lords. It did not suffer from a lack of defenders, but this part of the Bill suffered from a lack of scrutiny. We were entitled to undertake that scrutiny because we believe that it would have advantaged the House to be able to hear the detail.

I turn to the questions raised specifically on Amendment No. 32 to which the Commons have disagreed for their reason numbered 32A. I agree that it is somewhat curious that those who support the right to jury trial—among others, the noble Lords, Lord Hunt and Lord Thomas of Gresford, did so—say that they wish to deny the defendant the right not to have a jury trial. That is an odd arrangement.

I appreciate that in my opening I conflated the two amendments. In due course I shall deal with Amendment No. 42 in its proper place by addressing our amendment.

The noble Lord, Lord Borrie, is right to point to the issues of complexity and length in trials. I respectfully agree with him. The noble Lord, Lord Thomas of Gresford, asked about the special ability that the judge has. The noble Lord knows that, if there is a particular need, it is usual for the Lord Chancellor or the list office to alight upon a judge who may have the type of experience, through practice or through sitting in a certain division—the Commercial Division judges are not unfamiliar with commercial and other frauds—that makes him or her more suited to dealing with certain trials. That is an advantage.

I turn to my noble and learned friend Lord Morris of Aberavon. Without reservation I say to him that we too greatly value and respect the jury system. The noble and learned Lord will remember that each time there has been an encroachment on jury trials, there has been an outcry that that will mean the end of the jury. The noble and learned Lord will remember the tears that were shed for the loss of peremptory challenges. No longer would we be able to challenge jurors when choosing a panel. The noble Lord will remember the tears shed in relation to the abandonment of unanimity and the move to majority verdicts. That was supposed to signal the end of jury trials as we know them. Juries are still with us.

The arguments made in relation to this part of the Bill were also made, as I understand from the noble and learned Lord, Lord Cooke, in New Zealand. People in New Zealand thought that such measures would mean the end of the system as they knew it. But the provisions have rarely been used and they have

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been targeted on those cases that really need them. Further, the judge retains a discretion about whether the provisions should be used.

I am curious and somewhat taken aback by the hostility aimed at Clause 41, because it gives defendants a choice that they do not have at present about the way in which they are tried. We find it puzzling that noble Lords opposite are so vehement in their defence of a defendant's right to choose one context, but should oppose this reasonable right. We shall stand firm on the matter.

We also intend to stand firm on the other provisions in Part 7 which deal with those who seek to manipulate the system to evade justice. Clauses 43 and 45 provide an effective and a proportionate solution to the increasing problems of jury tampering and Clause 42, to which I have already spoken and to which I turn again briefly, does that too. New Zealand is not alone in benefiting from using these provisions. I am sure noble Lords are aware that they are also used in the United States, Canada and Australia. We do not seek to do anything that is terribly novel.

I have not dealt with the comments made by the noble and learned Lord, Lord Ackner. We are not pulling the wool over anyone's eyes. We are being absolutely frank about what is happening. My noble friend Lord Davies of Coity is right to say that we have to be realistic when considering how the provisions will be viewed and that members of the public who will be asked to participate in these trials will be very concerned about the extent of the duty that they will be invited to undertake. I am gratified to hear the acceptance by the noble Lord, Lord Renton, that such fraud trials can be long, very difficult and complex. His experience is that on occasion jurors are not able to deal with them appropriately or at all.

The noble and learned Lord, Lord Ackner, raised the issue of the Serious Fraud Office and its conviction rate. This matter is not about conviction rates. We do not seek to raise the conviction rates in this regard. These provisions attempt to address real problems in trying to manage certain fraud cases. The conviction rate reflects not the difficulty of rendering such cases manageable for jurors but the damage that is done to the public interest when it is not possible to try defendants on charges that truly represent the extent of their alleged offending. That was a matter underscored by my noble friend Lord Borrie.

Perhaps I can explain the purpose of the government's amendments.

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