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I do not believe that the public would regard the hearing of a small number of very lengthy and complex fraud cases before a single judge as an injustice or as an attack on jury trials; nor do all members of the legal profession share a lack of confidence in the appropriateness of a single judge and a non-jury trial in such cases. I believe that the public would support such a move, particularly if it ensured that the whole case was heard in one court and that all appropriate charges were laid, all appropriate defendants charged and all the evidence heard. That is justice, and that is what the public support and want. They do not want a system which, in respect of a limited number of lengthy and complex fraud cases, at times appears to be the sophisticated fraudster’s friend.

4.26 pm

Lord Hunt of Wirral: My Lords, I rise to speak in this debate in sorrow and in anger. I speak in sorrow because for more than 700 years the historic institution of trial by jury has been seen as the embodiment of justice of the people, by the people, for the people. I speak in anger because I had to hear the speech of the noble and learned Lord, which rewrote history. It was as though the events of 19 and 20 November 2003 never took place.

I was involved in the discussions on the Criminal Justice Bill. I sat down in good faith with other noble Lords and representatives of the Government and, after some to-ing and fro-ing between the Houses, we reached a solemn agreement. I have no need to refer to the private words, which were much stronger than those used on the Floor of this House and in another place, because David Blunkett explained it all to the House of Commons. There was not one word of that in the noble and learned Lord’s speech. Mr Blunkett said that if this House dropped its objection to Clause 43—it was then Clause 42, but it became Clause 43—he would ensure that there would be full and proper consultation involving not only the main parties but also the Attorney-General, the Serious

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Fraud Office and the senior judiciary to look at the various alternatives to restricting trial by jury. He said:

He was pressed by Mr Simon Hughes about whether that consultation would consider an alternative to the conventional jury that keeps the principle of jury trial. Mr Hughes asked:

Mr Blunkett replied:

What has happened? How dare the noble and learned Lord the Attorney-General tell us that the consultation was a seminar?

Lord Goldsmith: My Lords, before the noble Lord continues in this way, which is a little uncharacteristic in this House and a little uncharacteristic of the noble Lord, perhaps he would reflect on what Mr Blunkett said:

that is a reference to the previous sentence about measures drawing on a specialist range of expertise for a jury—

Is the noble Lord aware that, despite our attempts to take that forward, no single suggestion has been put forward from the opposition parties other than that we should simply do away with Section 43?

Lord Hunt of Wirral: My Lords, I was told at the time that he was not happy with the agreement that had been reached. I am angry because the noble and learned Lord has not responded to the later comments of David Blunkett when he said that the purpose of the consultation would be to look at the alternative solutions. A number of alternative solutions were put forward, but all we have heard in this debate is that the consultation that took place was one seminar.

Lord Clinton-Davis: My Lords, the noble Lord said that a number of solutions had been put forward. Would he identify them?

Lord Hunt of Wirral: My Lord, I mentioned one that Mr Simon Hughes put to Mr Blunkett: that instead of a conventional jury there would still be a jury but it would have an expert element. There are a whole series of possibilities. What I object to is that the only consultation has been a seminar organised by the noble and learned Lord on 30 January 2005.

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There has been nothing since. I know that we in this country have only an unwritten constitution, but a change of this magnitude ought to be built on stronger foundations than that.

The Government do not come with clean hands. For 10 years—

Lord Maclennan of Rogart: My Lords, before the noble Lord leaves the question of alternatives, does he not agree that the measures announced by the then Lord Chief Justice, the noble and learned Lord, Lord Woolf, amounted to a very material change in the conduct of such trials? That in itself has altered the situation.

Lord Hunt of Wirral: My Lords, yes, I agree with the noble Lord. My anger is compounded by the fact that the noble and learned Lord the Attorney-General sought to attack my noble friend, who is putting forward a very reasonable case with which I agree. The Government do not come with clean hands. We have been down this road several times before. The noble and learned Lord did not mention the mode of trial Bills.

Lord Goldsmith: My Lords, the noble Lord will recall that his party, when Mr Michael Howard was Home Secretary, also put forward exactly that proposal.

The Earl of Onslow: My Lords, that is a frightfully bad excuse. Just because two people do something does not make it any better. It means that there are two fools about the place rather than one.

Lord Hunt of Wirral: My Lords, my most difficult task is to follow that. For 10 years this Labour Government have been actively undermining jury trial. Since 1997 we have had two modes of trial Bills presented. I remind the House that they were to take away the right of the accused to elect trial by jury in certain cases and pass the decision to magistrates. I recall that during the proceedings on that Bill, we were given a clear understanding by the Ministers that there would certainly be no attempt to remove jury trial for more serious cases. We saw through that attempt and defeated the Government. Following these abortive attempts to scrap juries in certain instances, we had the Criminal Justice Act 2003.

Jury trial is an historic institution that endures with widespread public support. It allows citizens to be directly involved in the criminal justice system. It is a vital part of participatory democracy and it maintains confidence in the impartiality of our system of justice. There are a number of measures—the noble Lord mentioned some, and I am sure that my noble friends will mention others—but, against that background, how dare the noble and learned Lord the Attorney-General threaten us this afternoon with the Parliament Act. Those are words that I am sure he will come to regret.



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4.35 pm

Lord Carlile of Berriew: My Lords, I declare an interest. I still practise at the Bar and have appeared as defence counsel in Serious Fraud Office and other very long cases; with a bit of luck, I will continue to do so. I am also the head of a large set of mainly criminal chambers many of whose members are involved daily in Serious Fraud Office cases.

I start with a procedural point that was introduced into the debate by the noble Lord, Lord Clinton-Davis, and dealt with by the noble and learned Lord the Attorney-General concerning whether we should give the Bill a Second Reading. The point is a simple one for me: giving the Bill a Second Reading involves an implicit acceptance of the unacceptable. The only acceptable amendment to it that I can see is to oppose Clause 2 standing part; that would have the same effect as voting against the Bill at Second Reading.

I also feel entirely unintimidated by the noble and learned Lord’s threat of the Parliament Act. By the next Session we shall have a new Prime Minister, new priorities, new views and possibly even new personnel in various offices. If a week is a long time in politics, it is an extremely long time if there is a change of Prime Minister in the interim.

I do not say that the noble and learned Lord the Attorney-General is seeking to undermine the jury system. I listened carefully to what he said and I take him to be a man of his word, as I have always found him to be in the past. Nor do I think that he is proposing the thin end of a large wedge; that is not a very useful argument in this debate. He just has it horribly wrong on this occasion.

I agree entirely with the noble and learned Lord that, over the years, the Diplock courts have reached high standards of justice in Northern Ireland. I also agree with him entirely that there are certain classes of case in which, in this modern age, it is no longer possible to have a reliable trial by jury, but they are a very special class of case. They are not cases where the jury has to be there for a long time or has to make a difficult judgment; they are cases where the jury system is so undermined by, for example, intimidation of or threats to jurors or sectarian conflict that it is simply not possible for the jury to return a reliable verdict. By no stretch of the imagination do fraud cases fall into that category. This is an attempt at a pragmatic Bill; it is an attempt by the Government to persuade the House that, quite simply, fraud cases are too burdensome for juries. However, for reasons that I shall set out, I disagree wholeheartedly.

My one serious criticism of the noble and learned Lord’s introduction to this debate, measured as it was, was his inappropriate use of remarks made some years ago by the Lord Chief Justice as he now is. The Attorney-General should perhaps have recognised, as he may reflect he should have done, that significant changes have taken place in the management of fraud trials since those remarks were made. As I understand it, today the noble and learned Lord the Lord Chief Justice takes a somewhat adjusted view of what he said, as the noble and learned Lord the Attorney-General put it, several years ago.



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I do not want to dwell on the legal philosophy behind the jury system—many have already spoken about that—but I hold to the view that a jury trial is a most democratic act. Taking part in a jury trial is probably the most democratic act that any citizen can undertake.

Surely the decision on honesty or dishonesty—the essential decision in a jury trial—is a classic determination for a jury. It is worth looking at the record of jury trials. How many cases have there been in which there has been a successful appeal on the basis of something done by the jury? So few as to amount statistically to zero. But there have, of course, been many appeals in which errors by judges are so serious that the conviction has been rendered unsafe, with the result that there has had to be a retrial.

I believe that the Attorney-General knows that in every, or almost every, case of fraud, if tried by judge alone, there would be an appeal in which his or her conclusions not only of law but also of fact would be attacked. There would be complex decisions on disclosure and PII. Although the system of PII has worked tolerably well in Diplock courts, there has been at least one instance in the past two years in which there have been difficulties because two judges were dealing with issues on the admissibility of evidence, with a separate judge deciding on public interest immunity.

The noble Lord, Lord Rosser, said that judges decide very important issues of liability on their own every day of the week. Of course he is right, but the cachet of criminal is rather different from the cachet of tortfeasor. We do not refer to that tortfeasor over there, but, for example, we may well not wish to see sitting in your Lordships’ House criminals who are convicted while Members of this House. It is a different quality of issue.

Jurors’ determinations of fact are based on a collective view as lay people of the conduct of the defendant. A judge’s determination of fact may in some cases—I hesitate to say this in the presence of distinguished and retired judges in this House—be somewhere between idiosyncratic and a great deal worse. The annals of the law reports are full of cases where judges have made serious mistakes; as I said earlier, jurors have made few.

The Fraud Act 2006 has already been mentioned. In so far as there is any complexity in deciding whether someone has been proved to be dishonest or not, that decision-making process has been simplified very sensibly by the introduction of an overarching offence of fraud. We can expect to see that charge frequently. From my experience and that garnered from others, I can speak of many cases in which juries have brought in differential—mixed—verdicts. They find some defendants guilty and others not guilty, and defendants guilty of some charges and not others in very long cases.

I can cite one from the Central Criminal Court where all defendants were found guilty—regrettably including my client. It was an SFO case. I can cite another SFO case at Snaresbrook Crown Court in which two were found guilty, one not guilty—happily, my client—and one not guilty on a retrial. I can cite a

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case at Southwark Crown Court in which there was a very obvious understanding between the judge and jury. Eventually as a result of extremely good case management, the judge took it out of the hands of the jury at half-time, accepting a submission of no case to answer. The jury had asked numerous questions during the trial, and it was quite clear that their engagement had had an effect on the judge.

In another SFO case at the Central Criminal Court, two defendants were found guilty and another not guilty. There are many other cases, not of serious fraud, where exactly the objections made by the noble and learned Lord the Attorney General could be made. For example, in the cockle pickers’ case at Preston Crown Court, which lasted for several months and in which I appeared for one defendant, three defendants were found guilty and two not guilty.

This brings me to the question of representative juries. I do not know where the noble Lord, Lord Rosser, gets his view that juries in long cases are not representative. It is illogical. Within a random selection of the population will be people who have employment difficulties, people who have booked holidays and people who have family difficulties. Thinking in particular about the cockle pickers’ case, among others, I suggest that if one examined the evidence empirically—and far more research into juries is needed—one would find that juries were just as representative in long fraud cases as in others.

The question of undue burdensomeness for juries has already been discussed; I will not repeat what has already been said about the research of Professor Sally Lloyd-Bostock. The noble and learned Lord the Attorney General has failed completely, in addressing the House, to take into account the numerous measures taken in the last two to three years to enable juries to understand fraud cases better. I have heard the Lord Chief Justice’s protocol cited day after day in court; it has had a dramatic effect on the management of cases. There is currently a long ongoing case, albeit not one of fraud, in which a High Court judge has decided that there should be one lead cross-examination of the expert witnesses to be called by the prosecution. Someone involved told me that this has shortened the case substantially.

Judge Rivlin, resident judge at Southwark Crown Court, has a system of allocating and managing cases so that they are dealt with effectively and practically within that Crown Court. Technology, as I have seen, is used in many cases; it shortens them dramatically, juries like using it and it gives everyone, counsel included, a much clearer understanding of the case. Then, of course, there is the welcome development of plea bargaining. Plea bargaining, let us face it, has been done behind the scenes throughout my 35 years of practice at the Bar. It should be formalised and made more open; it should be clear what benefits are available. Perhaps it should be more like the American system in that regard. It is another development that can be used to shorten cases and manage them more effectively.

Comparable common law countries retain juries for long cases, including those of serious fraud—as, in my view, we should here. I am afraid that the Government

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have not produced enough evidence for this Bill to go to the jury of Parliament. It is not a case of the jury being out; the jury should not be in at all. The evidence for juries’ ability to deal with these cases is stronger than ever.

4.48 pm

Lord Clinton-Davis: My Lords, I am glad to follow the noble Lord, Lord Carlile of Berriew. The mixed results he has adduced concerning representation should not be viewed by anybody as a deterrent to instructing him; they will be very well represented.

I am rather torn on this issue. My own experience compels me to the view that the situation presented by the Bill is somewhat misplaced. On the other hand, I do not think that what the Opposition propose in moving this amendment is worthy of them. All in all, because of that, and because I consider this Bill capable of amendment, I shall vote for it—but with gritted teeth.

To suggest, as the noble Lord, Lord Hunt, did, that there has been no adequate consultation about this issue is quite wrong. The Roskill report, the Auld report and the debates that have taken place in the legal profession on this issue have all been of immense importance. I think that the noble Lord rather overstated the case, uncharacteristically, because I like to think that he is a friend of mine. I am sure that he is.

However, I am torn on this matter because I spent some 50 years in the profession of solicitor—indeed, the noble Lord, Lord Hunt, and I are the only two solicitors in this debate—and a great deal of time involved in fraud trials, but I cannot recall any in my own experience that lasted for more than three or four months. Nowadays it is quite common for fraud trials to last considerably beyond that period. Indeed there was the Jubilee Line case, which has been widely quoted today; that was not a fraud issue, but it lasted in all for more than two years. Certainly, any juror who was on that panel should be sympathised with.

It is no small wonder, therefore, that demands have grown for juries to be dispensed with. My own view on what ought to be a non-political issue is that the Government have not finally fully made out the case for taking this very drastic step. I am far from convinced that all or a majority of fraud cases have become so complex in more recent times that a jury is incapable of comprehending the essential issue. Of course, that hesitation that I spoke of could be overcome—but it has not today by virtue of the arguments made in this important debate. We have heard some excellent speeches, but speeches that have been devoid of argument.

The proposal that the Government advance to do away with juries in certain fraud trials divides the legal profession. Many organisations that advise on criminal proceedings, such as the Bar Council, the Law Society and Justice, have made very strong representations on this count. But although these representations have been very persuasive, do they really express a majority or minority view? We do not know. It is certainly an issue that divides the whole

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legal profession. Accordingly, it would be folly for the Government to ignore those significant views—and I entirely agree with the noble Lord, Lord Hunt, that there ought to be more discussion about this issue than has taken place.

There is a powerful common denominator between everyone who has participated in this debate. How do we improve the present position? How do we ensure that we arrive at an intelligent decision on admittedly complex matters? Are we satisfied that trial judges always exercise sufficient and satisfactory control of the long cases that come before them? How best can we accomplish that? We have heard little about it, except that the present situation is fine; that it ought not to be altered. The Government have said, “Of course, we should—as far as a small minority of fraud cases is concerned”. So how can we make an intelligent decision about that?

My suspicions about the Bill were intensified by the Solicitor-General’s important statement, on extending the measure to other classes of cases, that the Government,

of doing that. That is why I am so obliged to my noble and learned friend for saying today, in clear terms, that that was not the Government’s case, which was that there was no intention of going beyond what they were proposing at the present time. I am grateful to him for saying precisely that. In other words, the Government are saying that, as far as this is concerned, the anxiety that several of us have expressed is misplaced.

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