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34CLord Hunt of Wirral rose to move, as an amendment to the Motion that the House do not insist on its Amendment No. 34 and do agree with the Commons in their Amendments Nos. 34A and 34B to the words so restored to the Bill, leave out from "House" to end and insert "do insist on its Amendment No. 34".

The noble Lord said: My Lords, I understand that Amendment No. 36C is consequential on Amendment No. 34C.

I want to make the point that, to some extent, we have already covered this subject in the opening debate when we responded to the Minister in covering a range of situations relating to non-jury trial. However, when the Minister read out that portion of her speech which did not seem to come from her, but rather from a written document—the point at which she remarked that she believed that those opposing this clause did not understand the depth of the Government's concern—I believe that she made a grave error. During these debates we have constantly declared war on any form of intimidation and we want to join with the Government in ensuring not only that the intimidation of a jury does not take place, but that the intimidation of a judge—some very serious cases have been reported recently—of parties or of witnesses also does not take place. At some stage we would welcome a dialogue with the Minister and her colleagues on seeking to increase the sentences for jury tampering, judge or witness tampering, or other intimidation of any of the parties. At the moment the penalties are not sufficiently severe. We declare war on intimidation of any kind.

All I wish to say in addition to my previous comments is that I thought that my honourable friend Mr Grieve went into considerable detail in explaining his amendment. However, it was not tabled yesterday, like the government amendments; it was tabled six months ago. When the Minister takes credit for having come forward with these amendments, it should be noted that the Government produced them only 36 hours ago, but we are talking about a debate that took place in this House on 15th July. Only yesterday morning did we first see the Government's proposed new wording.

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Furthermore, there are defects. Members of all parties are nervous about allowing a judge who has just received evidence of jury tampering then to continue to sit on his own. When Mr Marshall-Andrews spoke yesterday from the Labour Back Benches to agree with the points that my honourable friend Mr Grieve was making, that was a most telling intervention. So we ask again: please may we have co-operation from the Government to arrive at a formula that would meet this very serious situation? In effect, I am saying: please may we have some constructive engagement instead of sudden, last-minute amendments which are defective—those defects were pointed out yesterday in the other place? We need to get this right. I beg to move.

Moved, as an amendment to the Motion that the House do not insist on its Amendment No. 34 and do agree with the Commons in their Amendments Nos. 34A and 34B to the words so restored to the Bill, leave out from "House" to end and insert "do insist on its Amendment No. 34".—(Lord Hunt of Wirral.)

5 p.m.

Lord Morris of Aberavon: My Lords, I thank my noble friend on the Front Bench for her careful explanation of what is intended. As we know, real difficulties can arise in certain cases. Fortunately, as she explained, they are few in number, but the difficulties relate to very serious cases which involve substantial allegations. I have some experience of this, having been for some two-and-a-half years the Attorney-General with responsibility for Northern Ireland.

The purpose of my intervention is to say this: given the background of what we are dealing with, can my noble friend tell us whether she is satisfied that no difficulties would arise from the first sentence of Amendment No. 34B, in seeking to prove,

    "where there may be evidence of a real and present danger that jury tampering might take place"?

Is such evidence to be heard in open court, obviously on oath? Further, does she envisage any of the same problems arising from proving this particular requirement?

Lord Monson: My Lords, the noble Lord, Lord Hunt, claimed that Amendment No. 36C is consequential on Amendment No. 34C. While I realise that I am deficient in legal expertise, that does not appear to be so; they are quite separate matters. Clause 45 stands alone and is not dependent on the passing of Clause 43.

Baroness Anelay of St Johns: My Lords, I rise briefly to assist the noble Lord, Lord Monson. We took advice on this from the Clerk at the Table and consulted the Government. We have all received the same advice. That was the reason why my noble friend Lord Hunt referred to Amendment No. 36C being consequential on Amendment No. 34C.

Lord Thomas of Gresford: My Lords, intimidation is something that must be attacked and Members on

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these Benches join with all that has been said by the noble Lord, Lord Hunt. Nothing in this clause would do anything about intimidation. It provides that, if there has been intimidation, any subsequent trial would be held without a jury.

The Minister referred to the cost of protecting juries. No doubt there is a considerable cost, but members of a jury come from the community and they disappear back into the community at the end of their term of jury service, whatever that may be. Therefore they would need to be protected for only a short time. Judges involved in terrorist cases in this country are provided with 24-hour protection for seven days a week. The position is the same in Northern Ireland, where heavy protection is provided for judges all the time. One wonders about the cost of that.

I say that because in Northern Ireland a judge has been murdered, while in continental systems and in other parts of the world, judges are assassinated from time to time. When we are dealing with serious crime, we must provide full-time protection in those circumstances. So no saving in costs would be made as a result of these provisions. In fact, the costs incurred in protecting juries referred to by the Minister would be rather modest when compared with some of the costs of police protection being incurred today. That is no argument for abolishing the right to trial by jury. We are with the noble Lord, Lord Hunt, in opposition to the Government's plans.

Baroness Scotland of Asthal: My Lords, first, I should like to emphasise in response to my noble and learned friend Lord Morris of Aberavon that the test now applied to have a jury covered for 24 hours a day is very much the same: it is a "real and present danger". Taking the four or five cases that I have already mentioned, the judge must already be satisfied in relation to that test before he would authorise 24-hour protection. We do not think that there would be any difficulty about that. It is clear that the judge will have to assess the potential risk of tampering on the basis of the evidence before him. It would need to be clear and cogent evidence, whatever form it takes and whatever its nature.

Our amendment simply gives examples. We do not say that these are the totality of circumstances that the court must take into account. We have given them as an exemplar of the quality of evidence that we think would need to be presented before the court could be satisfied that providing protection would be a proper thing to do.

We can draw comfort from the fact that judges dealing with such cases have used the provision of 24-hour protection very sparingly. One of the reasons for that—one cited on an earlier occasion—is that if one looks at the conviction rate, it would appear that there is a slightly higher conviction rate for those juries under protection than otherwise. That may be due simply to the weight of the evidence, but there is a significant difference and it is something that we must consider.

I shall take up the point made by the noble Lord, Lord Thomas of Gresford, about the costs incurred in providing protection for judges. I believe that I said

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earlier in my remarks that it is easier to protect one judge than it is to protect 12 jurors. The nature of the protection is different.

The robustness of our judges is also different. They take on an enormous responsibility on behalf of the public and discharge it with honour. I pay particular credit to the judges in Northern Ireland who have been discharging that duty in Diplock courts with real courage, dedication and fairness for many years. We do not doubt for a second that we have judges of the kind, nature and calibre necessary to discharge this duty, not only in terms of their own personal courage but also in terms of the way in which they will address matters in the interests of justice.

I can assure the noble Lord that this is not a cost-cutting exercise. We do not believe that we will save money, but neither do we shy away from addressing the issue. We believe that it is right to take this opportunity.

A very senior judge indeed mentioned to me that he had spent the last three years of his practice conducting one trial. At the first trial, through some happenstance, inappropriate material managed to get in front of the jury in almost the twelfth month. The first jury was discharged. It was genuinely thought that there had been successful interference with the jury—tampering.

The second trial proceeded for almost a year when one day a juror ran from the jury box in a state of distress, declaring that he could go on no longer knowing that other members of the jury were in receipt of money and had been tampered with. That trial came to an end and the juror was subsequently prosecuted. The third trial again took a year.

The point that was made to me was that if those serial criminals had known that the consequence of seeking to tamper with the first jury was likely to be a trial by judge alone, they probably would not have done it in the first place. They may have considered that being tried by 12 good men and women true would be a better option for them. So the fact that there is a backstop of this nature may well act as a deterrent to those who would wrongly seek to undermine the interests of justice.

That was told to me by a very senior judge indeed who had, before that three-year experience, been of a view similar to the one expressed in this House on previous occasions. We are dealing with a very different world today than in the past—a world in which my noble and learned friend Lord Morris was privileged to serve.

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