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3.53 pm

Lord Maclennan of Rogart: My Lords, the noble and learned Lord the Attorney-General began by indicating that the procedures followed in this debate are somewhat unusual. He is entirely right; but I am bound to say that we entirely agree with the reasons advanced by the noble Lord, Lord Kingsland, for treating this measure in the way that he has done. It is not a new matter of substance; I recall participating in another place in a debate on the Roskill committee report in which many of the arguments advanced by the noble and learned Lord the Attorney-General were deployed. The remarkable difference, however, has been the unwillingness of our present Government to respond to the objections to their proposals.

The previous debate was led by Douglas Hurd, now the noble Lord, Lord Hurd of Westwell, who listened to the views of another place. Of those who spoke in the debate, 11 out of 12 Members spoke against the proposal that the Attorney-General seeks to advocate today. Unsurprisingly, the measure was withdrawn in the form currently being advanced.

It is remarkable how little the arguments have changed in 21 years, but in one respect the general legal ethos has changed. There have been disturbing indications from the Government that they do not cleave to the foundations of our freedoms, our rule of law and justice without cavil to the extent of their predecessors. We have seen measures that have called into question habeas corpus and the rules about the burden of proof in criminal trials. The Attorney-General may not like it, and he may shake his head, but the reality is that this country needs to beware of measures that undermine one of the fundamental rights of the citizens in this country—the jury trial, which they perceive to be a guarantee of their freedoms.

No doubt the Attorney-General is aware of the recent inquiries by the legal professions in England on the attitude of the public to jury trial. Eighty per cent of those who gave evidence thought that juries would be much more likely to adhere to their views than judges would. There was far greater confidence in juries than in judges. That does not reflect an understanding of the very great distinction of our judicial profession, but it sounds a warning against the limitations on the jury system that this measure seeks to introduce.



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One point made in the minority report on Roskill, which I thought telling at the time, was when Mr Merrick said that legislators ought to bear in mind,

It is hard to understand precisely what motivates the Government to persist with this legislation in the face of the grave anxieties expressed in another place, by the legal profession, bodies such as Liberty, JUSTICE and the Law Society, and many who have had direct experience of the conduct of fraud cases. What lies behind it? It is hard to tell from the views expressed in another place by the Solicitor-General. When pressed, he said that,

It is not the length of the case that leads to this radical measure; length is apparently incidental to the Government’s motives.

In any event, on the length issue—it was ably dealt with by the noble Lord, Lord Kingsland—the procedures provided for in the measure would enable the defendant to take matters on appeal from the judge, including the reference to provide for a trial without a jury. On the face of it, it seems highly likely that the appeal process would extend trials beyond the time acknowledged, in relatively few cases, to be very burdensome.

The complexity of trials from the point of view of the juries has been dealt with by the noble Lord, Lord Kingsland, who properly pointed to the findings in respect of the Jubilee Line trial and the comprehension of the jurors of the issues at stake. It is proper to remind ourselves that the concerns expressed in that review by the independent inspector were about the management of the case, which appears to be what underlies the complexity. Here again, there is ambivalence on the part of the Government and the noble and learned Lord the Attorney-General. When he talks, as he did, about bringing all the issues together in one trial, I wonder exactly what he has in mind. Is that in the interests of justice? Is it necessary to make the case more complex to cover all the issues that might be raised? It certainly was not necessary, when Dr Shipman was being tried for murder, to bring into the case all the possible cases in which he might have committed murder. It was possible to convict him on the evidence of a number of cases, but to obtain a conviction and an exemplary sentence appropriate for the seriousness of the crime it was not necessary for the case to be comprehensive in the way in which the noble and learned Lord the Attorney-General seemed to suggest that fraud cases should be.

The noble and learned Lord the Attorney-General has brandished the threat of the Parliament Act. I am bound to say that that does not make it more attractive to me to see this Bill continued beyond today. It suggests deep commitment, for whatever reason—I

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find it difficult to divine the reason, other than a degree of stubbornness—that would render the noble and learned Lord the Attorney-General opposed to any amendment that might be advanced. It was clear from the way in which amendments were dismissed in another place that the Government are not open on these issues. They have set their face firmly in one direction and they intend to travel down that route until they arrive.

The question that might properly be asked is: why have the Government shown so little confidence in the measures that they themselves introduced to deal with some of these problems? Why are they not prepared to wait to see the effect of the Fraud Act, which only came into effect in January? Why are they not prepared to consider whether the amendment by the noble and learned Lord, Lord Justice Woolf, to the criminal procedure rules and the protocol for the control and management of serious fraud and other complex cases deliver the objectives that, on the face of it, they seem concerned about? Why are these measures being written off as not as important as tampering with the jury system? The noble and learned Lord the Attorney-General stated that they are not enough, but he has no evidence of that; he has no evidence at all, because they have not been in effect for long enough to draw conclusions.

There is another matter, again relating to the Government’s own legislation. The Attorney-General spoke about the all-embracing nature of the charge and the inclusiveness of the trial, making sure that every point is considered. That was not the motivation behind the introduction of the Domestic Violence, Crime and Victims Act 2004, which provides for trial by jury of sample counts only, if certain conditions are fulfilled, with the remaining counts to be tried by a judge alone. Whether that Act leads to differences is worthy of consideration. It might tell us something about the possible effect of the measure before us.

Despite the fact that these matters have been considered and debated for 21 years, the Attorney-General’s action appears, in the light of what has been done in the past two or three years, precipitate and careless of our fundamental rights and freedoms. I therefore hope that a stop will be brought to this legislation today and that the public will have an opportunity to consider the issues and why this House is proposing to take this action.

4.06 pm

Lord Elystan-Morgan: My Lords, the noble Lord, Lord Maclennan, has properly reminded us that the matter with which we are concerned today has occupied the attention of both Houses of Parliament for more than two decades. It is not so much a battle as a campaign. One is tempted to compare it with medieval sieges: the troops are deployed subtly; the advance trenches are dug; the trebuchet catapults are bedded in place, all directed towards what is perceived to be a weakness in the defensive wall. I shall not extend the metaphor further and suggest what might happen to the Attorney-General when he leads us with forlorn hope into the breach, but one may be tempted to say that, if that attack on the breach fails, he is considering almost a nuclear option. That is the situation.



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A problem has very properly been identified by the Government. They have very honourably considered a solution as an alternative, by way of the Fraud Act of last year, the Domestic Violence, Crime and Victims Act 2004 and the protocol that was introduced almost exactly two years ago this week by the noble and learned Lord the Lord Chief Justice.

The Government rely heavily on two postulates; first, that the failure in the operation of trials for serious fraud must be somehow be laid at the door of the jury. There has been a great deal of examination of anecdotal and empirical evidence, but that case has never been proven. Such evidence as exists is very much to the contrary. Reference has already been made to R v Rayment and others; that is, the Jubilee Line case. The remarks of Mr Wooler, Her Majesty’s Chief Inspector of the Crown Prosecution Service Inspectorate, went far beyond merely saying that there was no evidence that the jury failed in this matter. Indeed, he specifically exculpated the jury with these words:

Seven or eight months after the end of the trial, members of the jury were able to state conclusively exactly what the issues were in that trial. We should always remember that for the last seven months of that trial, the jury sat to hear evidence on only 13 days. The trial collapsed for a number of reasons. It seemed to be jinxed. Illness and various other factors probably contributed as much as anything else, as much as the prosecution’s tactical mistakes in the way that it deployed its case.

There is no evidence to show that there is a causal connection between what the Government regard as failure in high profile fraud cases and the actions of a jury. That begs the question how one defines failure. If one takes an Orwellian view, one may well say that conviction is good, acquittal is bad. Surely that argument is not going to be relied on by the Government.

The Government’s second postulate is that there are inherent weaknesses in the situation of a jury in such a trial. The arguments have already been very properly deployed by the noble Lords, Lord Kingsland and Lord Maclennan. The Government no longer seem to rely on a jury’s lack of cognitive capacity, although there were doubts about the way in which the matter was put by the noble and learned Lord the Attorney-General. This is what his partner, the Solicitor-General, said in the House of Commons at Second Reading on 29 November last year:

He went on to say in the same speech:



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I mention the matter because the twin qualifications for an application under Section 43(5) are, on the one hand, that there should be a lengthy trial or, on the other, that there should be complexity. Complexities will inevitably lead to the length of trial. However, since the length of trial is dealt with separately from the question of complexity, it seems that complexity must apply in some way or another to the capacity of a jury to understand. In other words, that the issues are so complex that a jury is not able properly to comprehend what the issues are at each stage, evaluate relevant evidence or collate evidence and reach a rational conclusion. If the Government say that they are not relying on the stupid jury argument, so be it, although there seemed to be some overtones of that in the noble and learned Lord the Attorney-General’s address.

The second matter is the length of trials. The Government are very properly applying their minds to a genuine problem. It must be burdensome, sheer purgatory, for a person to have to sit on such a jury for, say, 12 months or more, but I am not sure that that forms a relevant part of the Government’s case. If the length of the trial is the problem, that does not confine itself to trials for serious fraud. The definition of a lengthy trial given by the Lord Chief Justice was a trial of three months or more, six months as a ceiling and 12 months in unique situations. I am sure we would all accept that definition. However, I ask the noble and learned Lord the Attorney-General this question—and I am sure that he will assist the House in this matter. Of the 30,000 or so trials in the Crown Courts last year, how many lasted more than three months? I suspect that the number must be many hundreds. Some of them would be drugs cases, some would be non-fraud conspiracy cases and some would be terrorism cases. If the Attorney-General has such data, I am sure that he will release them to the House. If those are not available to the Attorney-General, how could he and his colleagues have come to any conclusion about evaluating the whole problem in relation to serious fraud?

Time is forestalling me. If I am right in my submission, as I believe I am—although I have an overwhelming sense of my own fallibility at all times—the Government should succeed in this matter if the only possible way by which they can bring the matter to a solution is through this legislation. However, in view of the three-pronged attack that they have already, very properly, announced in relation to the Fraud Act 2006, which has been in operation for only two months, the protocol which has been in operation for exactly two years and the Domestic Violence, Crime and Victims Act 2004 which has not been brought into force, it seems to me that there is a very strong case for tarrying a while.

I agree with what the noble Lord, Lord Kingsland, said. When dealing with a jury, we are dealing with something that is much wider than a legal context—I say that not out of any soggy sentimentality for juries. Juries are utterly central and fundamental to our concept of liberty and justice.

I end with a quotation from Sir Patrick Devlin, as he then was, in a book that was published exactly 50 years ago, Trial by Jury. The verities that are dealt

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with I think are immortal. Here it is couched in the undying prose of Lord Devlin:

4.17 pm

Lord Rosser: My Lords, I hesitate to intervene in what appears to be a predominantly legal exchange. I support the Second Reading of the Bill and will vote against the wrecking amendment. I note the pledge to use the Parliament Act if necessary.

The Bill deals with an issue that seems to generate considerable feeling and sometimes has been described as the thin end of the wedge as regards trial by jury. There is no trial by jury in a magistrates’ court and for summary cases the defendant does not have a right to opt to have the case heard instead in a higher court so that it can be before a jury. If a district judge is sitting in a magistrates’ court, the case is heard not by three people, but by one person who determines the verdict and, where applicable, the sentence, which could be a period of imprisonment.

Trial by jury is not the norm throughout the criminal justice system. In the civil courts, where cases of potentially enormous significance can be heard, it is not a key part of the process at all. Even in the criminal justice system, cases can be heard, in exceptional circumstances, without a jury if a jury could be subject to intimidation.

However, the Bill does not propose to hack away at the current rights of trial by jury. There are just under 30,000 contested jury trials a year and the Bill will reduce that number by a handful. The figure is unlikely to be more than 20 and probably just half a dozen. It would apply only to lengthy, complex and serious fraud cases, of which there were half a dozen lasting six months or longer in 2005, and only in cases where the prosecution, the trial judge and the Lord Chief Justice were satisfied it was necessary, in the interests of justice, judged against the strict criteria laid down. For the four years from 2002 to 2005, 26 fraud trials lasted for more than six months, six of which lasted for more than a year.

The need for new ways of trying complex fraud cases, often involving many defendants in inter-linking transactions and other acts, was highlighted in the reports by Lord Roskill in 1986 and Lord Justice Auld in 2001. Their argument did not extend to either other types of case or into a general proposition for a move away from jury trial. This Bill, in line with those reports, is also about a limited number of very specific, lengthy or complex fraud cases, which are likely to go on for many months, indeed up to a year or more. For the members of the jury that is an enormous period of time, and way beyond what can justifiably be expected of a citizen required to do his or her civic duty. It certainly raises questions about

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why cases need to go on for so long, and why we have a judicial system that allows, allegedly in the name of justice, for cases to extend over such a period of time.

For a juror, it can mean a lengthy disruption of his or her personal life. For those in employment it can put at risk promotion prospects or even their job, levels of income, pay rises and bonuses, and the ability to keep up to date with developments in their field of work. In some jobs, if skills are not regularly used, it can make a return to work many months later even more difficult. Needless to say, not being around for many months does not exactly endear an employee to his or her employer.

All these factors can also make it harder to end up with a jury that is as representative as the selection system is intended to produce. Those with careers to think about, those who have a less than sympathetic employer, and those with significant personal commitments are likely to use whatever channels they can to avoid sitting on cases lasting up to a year. Thus the principle of the randomness of selection of the jury is compromised in such cases.

My noble and learned friend quoted Lord Justice Auld’s report in which, referring to fraud cases, he said that their burdensome length and increasing speciality and the complexity with which jurors had to cope put justice at risk and was a most compelling factor in favour of reform. Whether Lord Auld is right in inferring that jurors may have difficulty in coping I do not know, but I am sure he is right in referring to the burdensome length and its impact. That was an issue brought out in the report undertaken by the inspector following the Jubilee Line case even though it may not have met the intended criteria for trial without a jury since it was not expected to be as lengthy or as complex as it was.

The requirement for oral explanation of documents which can run into thousands of pages in complex fraud trials is a factor in such trials lasting many months or even up to a year or more. This places a real burden on juries, since few people are in a position to give up their normal lives for so long. There is evidence that to get round this problem prosecutors split complex fraud trials into separate trials, drop the less serious charges against secondary defendants and reduce the number of charges before the court. None of these actions is in the interests of justice, since it means that the full alleged culpability of the defendants is not presented to the court.

In the Blue Arrow case the trial judge had to sever the case into two trials to make it,

He said that,

The Court of Appeal said that,

A judge sitting alone should be able to overcome these difficulties, hear a large number of charges, look at all the evidence and make sure that speeches and questions are not repetitive and are directed at the relevant issues and differences over facts. It may not

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result in the case being shorter but it should result in all the charges being put, all the defendants appearing before the court and the evidence in full being heard.

Complex fraud cases almost by definition include issues of whether what was being alleged was, or was not, being done knowingly and with intent. If it was, it is more than likely that fairly elaborate steps were being made to cover tracks and to present it in another light. Defendants in complex fraud trials are not usually relatively unsophisticated folk, unlike many who appear in benefit fraud cases tried in the lower courts.

Lengthy fraud trials, where juries have sat for many months before being asked to make decisions reflecting complex evidence, speeches and questioning relating to multiple defendants who they heard weeks and months earlier in the trial, would not be many people’s idea of how an effective criminal justice system should function. They certainly would not regard it as so if a better way was available, in certain clearly defined circumstances, to deal with such cases.


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