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The Government contend that the proposed legislation is satisfactory, and that it is only because of this House that they have not been able to ensure that the necessary legislation should take effect. Well, that may be and it may not be. Certainly, serious consideration ought to be given to what the Government say regarding highly complex cases; they are duty-bound to adduce evidence that juries are incapable of coming to a sensible decision as far as that is concerned. Having said that, I depart from the Opposition in several respects.
It is idle to pretend that it is possible to oppose this Bill in principle, and therefore come to the decision that we ought to vote against it. Of how many Bills could that be said? There are many that I have heard myself in this place, put by the Opposition of all kinds—Labour and Conservative. Is it not possible to come to a decision today that we can amend this Bill in several respects—to make it rather better and make sure that a jury trial in a democratic society can take place, but that there may be an exception to that? Should we not come to a conclusion that fraud is rather special and difficult? How should it be handled?
All this is capable of amendment. No single issue has been adduced so far to show that the Bill is incapable of amendment. The noble Lord, Lord Kingsland, says that the House of Commons concluded that it would try to amend the Bill and failed. But that
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In conclusion, I have several questions for my noble and learned friend. First, would the defendant be entitled to be heard at the same hearing at which the prosecution can submit that the case should proceed without a jury? I do not think that anything is said about this in the Bill. Secondly, what sort of sanction can be imposed on prosecutors who do not obey the injunction that they should present their case succinctly, as sometimes happens?
Although I have doubts about the Bill, I do think that the Opposition entirely misconstrue the situation. To play politics on so important a matter is scandalous and unforgivable. Any chance of amending the Bill will be lost, without doubt, if the Government deploy the Parliament Act; so rather than abstain, as I was inclined to do, I will vote for the Government in the hope that the Bill will be satisfactorily amended in many respects. The Opposition cannot escape from the past as easily as they pretend. Mr Michael Howard, who was then the Home Secretary, proposed exactly what the Government are doing today. Who on the opposition side objected then to what he said? Not a single person.
Lord Lyell of Markyate: My Lords, when one was a member of the Government, what one said in public was obviously limited; but I assure the noble Lord that very strong objections were expressed.
Lord Clinton-Davis: My Lords, I am very glad that the noble and learned Lord was one of them, but I do not think that his was a majority view at all. As I said, the Government are entirely wrong about the Bill, but there is nothing in it that cannot be cured or attacked by the Opposition—I mean all opposition parties—and some Labour Back-Benchers as well.
5.04 pm
Baroness Miller of Hendon: My Lords, as someone who was a magistrate but who has long since retired, I have law and order still listed as one of my interests. However, it is not a subject on which I normally speak in your Lordships’ House, especially as there are so many eminent lawyers here. Listening today to so many of them, I wonder why I changed my mind. The last time I spoke in a law and order debate was when I made my maiden speech in 1994 in the debate on the Queen’s Speech.
Like many members of the public, I have been concerned at the huge costs, which sometimes run into millions of pounds. The defence, lacking the resources of the prosecution, is often at a disadvantage. I am concerned about the gridlock caused when a specialist judge, a courtroom and prosecuting lawyers are tied up for many months; about cases in which members of the jury are drowned in paper or, nowadays, have to study masses of figures and documents on a computer
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However, the noble and learned Lord the Attorney-General asked how many of your Lordships would like to be tied up for nine months, a year or even longer. I found that a bit odd because he went on to say that the length of the trial was not the concern. I agree that most of us would not want that, although we sit here day after day, week after week and month after month quite happily, but we do not have to because we can sit outside if we wish.
The problem is that the public often are rightly incensed when all that effort, time and money is wasted, and the case collapses. I am not talking about too many defendants being acquitted, as is sometimes claimed. That is what juries are for; namely, to put the onus entirely on the prosecution and to give the defendant the benefit of any doubt.
The Bill is supposed to deal with complex fraud cases; can the Minister tell us why so many of them have to be complex? That bothers me. I am not talking about cases where the fraud is a result of convoluted manoeuvrings of the defendant. Often, the most blatant frauds are as a result of some relatively simple actions. Why is it so often the case that a large number of similar charges, based on similar actions and evidence, are levelled against the defendant? The noble Lord, Lord Maclennan, said that it was not necessary in the Shipman case to bring in all the other cases that had taken place. There can be dozens of such charges and, sometimes, there are many more. Why? Unlike in the United States of America where sentences are usually consecutive, the sentencing practice here is for concurrent sentences.
I apologise for repeating myself from my maiden speech—I am not 100 per cent sure that I will say exactly the same today, 13 years later. I said that I hope that our judges will limit the use of concurrent sentences because I believe where there are three convictions there ought to be three sentences. Our courts should not be a kind of discount store: commit two crimes and get one free. I notice the noble Lord, Lord Rosser, shaking his head, although I did say that I am not sure if I will still say the same today. My point is about concurrent sentences. To hear one case is one thing, but to have to listen to 40 cases to get to the same position is something else.
There is a story, which is perhaps apocryphal, about a president of the Court of Appeal who, when faced with counsel’s opening remark, “There are X number of grounds for appeal”, would reply, “Well, Mr So and So, just tell us your best point”. Without trying to create an atmosphere of prejudice in the minds of a jury by the sheer weight of allegations against a defendant, it cannot be beyond the wit of the prosecution to secure a conviction on the basis of perhaps one, two or even three sample charges. The magistrates’ courts had a system of taking into consideration similar
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This avoids the prosecution taking a second bite at the cherry if it is dissatisfied with the sentence that has been imposed. It also clears the book of numerous other related offences. In the end, the consequential disgrace of the conviction will always be the same, especially to a so-called white-collar criminal. As I said, concurrent sentences result in the same amount of time in prison no matter how many charges are levelled against the same defendant. The Crown Prosecution Service and the Serious Fraud Office could be persuaded to restrain their exuberance in the interests of securing justice for the prosecution and the defendant and in the public interest. They should simply bring before the court in the words of the Court of Appeal judge “their best case only”. That would help to solve some of the problems that, according to the Government, this Bill seeks to redress. I know that the noble and learned Lord the Attorney-General is trying to do his best, but we wonder whether getting rid of the jury is the solution.
Juries, which have been so aptly described by my noble friend Lord Hunt, are a pillar of our legal system. In all conscience, to get rid of the jury to alleviate the problem of complexity is a step too far. I do not believe that we on this side or the Government should be thinking of allowing this to happen. I very much hope that the Attorney-General will think long and hard about this. I know that he has. I do not know how much consultation has taken place, but I have heard from around the House today that there has not been enough. The Attorney-General is nodding his head; we are all doing that today. I assume that he does not agree with what has been said. However, he will agree that all people today, whether they are speaking for or against the Bill, are doing so with conscience, conviction and with real belief. Therefore, it is imperative that, before we get rid of systems that have been in place for some 700 years, as my noble friend said, we take to heart and think carefully about what it would mean.
5.12 pm
Baroness Thomas of Winchester: My Lords, I am not a lawyer either, but I have been called for jury service on two occasions. Because of that, I have an interest in jury trials and therefore a deep concern about the Bill. I have to make it clear that I do not have a sentimental view about juries, but I do know that most of the British public are proud to fulfil their civic duty by doing jury service, even when it is most inconvenient for them. I also know that various Governments have explored this issue before, and that the Roskill commission in the mid-1980s, as we have heard, recommended a judge and two assessors for some serious fraud trials. However, there were powerful voices on the opposite side too, in particular Lord Devlin, who said in his evidence:
“Trial by jury forms part of the political compromise we have made between arbitrary and popular government. ‘Arbitrary’ in this confrontation means the rule by those, e.g. the judges, who are not answerable to the electorate”.
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“Not since the glorious revolution of 1688 has a citizen been imprisoned for any substantial time, ie longer than the short sentence for summary offences, otherwise than on the verdict of a jury”.
I wish to make three points. The first is whether this Bill is the best way to remedy the problem of the length and complexity of some serious fraud trials. Surely, it is not only the jury for whom it is a burden, but all those involved, including the trial judge. Arguably, serious fraud is not as stressful on the jury as trials involving the emotions, such as rape or murder. As for complexity, the report on the aborted Jubilee Line trial, about which we have heard so much this afternoon, showed that the jury were fully up to speed on that particular case, in spite of those who hoped that it would vindicate the Government's position. I have recently heard of several serious fraud cases lasting months in which the jury has had up to half a dozen lever-arch files of documents to read, which it has willingly done. Only last week, I heard of a trial with 30,000 documents, in which the judge told me that the jury was completely on top of the issues. If there is no jury in such cases, is it not likely that they will last even longer, as there will be no incentive on the part of either side to cut to the chase, as it were? In a debate on the Roskill proposals in 1986, the late Lord Wigoder QC pointed out that there would be no pressure at all to keep the case simple or clear.
My first point is therefore that surely the more difficult job of tackling the length and complexity of cases should be undertaken before the relatively simple and blunt instrument is used to axe jury trial in serious fraud cases. As others have said already, the reforms instituted by the then Lord Chief Justice, the noble and learned Lord, Lord Woolf, in March 2005 on the control and management of heavy fraud and other complex criminal cases have hardly been given any time to work, and certainly cannot have had time to be reviewed.
Secondly, the Criminal Justice Act 2003, which contains the substance of this Bill, was only passed after the Government offered the famous consultation on this particular part. As we have heard, that turned out to be a hurriedly arranged morning seminar; I remember it well. Considering that this is an important change in the law, I would be interested to hear what consultation the Government have had with bodies such as the Criminal Bar Association. It cannot be right that the Government seek to change the law in this area with so little consensus among law practitioners.
My third and last point is that abolishing jury trial for any serious crime is a dangerous step for the Government to take without that consensus. It looks to the man and woman in the street as though the Government do not trust them, as members of a potential jury, to get serious fraud case decisions right. My informal researches among the judges whom I have come across recently have not uncovered any appetite at all for judge-only trials—in fact, just the opposite—and I am sure it was not just to do with their personal safety, which is not something we have heard much about. Their comments have all been remarkably similar—that they believe juries do a good
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When the noble and learned Lord the Attorney-General was asked in a radio interview last year whether the Bill was not the thin end of the wedge to abolish jury trial in other cases, I distinctly heard him reply that if it was a wedge, it was the thinnest of all possible wedges. But that is what a wedge has to be in order to be effective. The rationale that the Government are using in this case could be used to abolish the jury in other cases. After all, other long criminal cases are just as burdensome and complex, as we have heard.
Finally, I find the Government's method of getting their way on the Bill oppressive, and I am glad that the combined opposition are planning to act in a robust fashion at the end of the debate.
5.18 pm
Lord Brennan: My Lords, the service of any one of us to sit on a jury, as is now required, is an act of citizenship. The jury trial most democratically embraces another aspect of citizenship—the right to be tried by your peers. The two—being a juror and being tried by a jury—therefore fulfil two basic elements of being a citizen: the duty to perform a duty and the responsibility that that entails, and the right to have rights to be tried by a jury.
I regard that as not legal, although in its context, in essence, it is a democratic feature of our democracy. If this is an appropriate act of citizenship, I remind those on my Benches that the work that was put in to achieving the working man’s suffrage was subsequently followed by the abolition of special juries and the right of every voting man and woman to sit on a jury. It was thought to be that fundamental.
Any change to this democratic issue should be tested democratically. One should always be prepared to test a principle, no matter how firmly held, by its practicality. This Bill tests the principle of jury trial by its practicality in serious fraud cases. It does so by setting out conditions. In the fifth volume of the six volumes of legislation for 2003, Section 43 of the Criminal Justice Act provides conditions, which the Bill does not rehearse again but which still apply. The condition for a trial without a jury is that the complexity of it or its length is likely to make it so burdensome to a jury that the interests of justice require a trial by a judge alone. Before a judge so decides, he must have regard in Section 43(6) to,
to make the trial less complex and shorter. Those principles still apply, and I propose to test them against the Bill.
Complexity means intelligibility of the evidence, not only by a jury but by the people who present it. Whether they are the police or the Serious Fraud
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In the very first fraud case in which I was led as a junior, the opening by the prosecuting silk was something like this, “This case is about a lot of money”. He pointed to the people in the dock and said “It belonged to their company, and it is all gone. It is gone because of their dishonesty. Over the next few days, we are going to find out what they did with it”. He then called the first witness. Am I to be told that that did not explain to the jury the three elements of any such fraud case—participation, knowledge and dishonesty—each of which is capable of being judged by any ordinary citizen, provided the material is presented intelligibly? It would be a sad moment if, as some think, the implosion of the Serious Fraud Office was accompanied by this fundamental constitutional change. Let us see the fraud prosecution system working effectively first to make things more intelligible and therefore less complex.
On length, I unashamedly invite the House to note that our friend and ally the United States took on what it thought to be our best values, one of which was the jury trial. It has never ever given up on that value and on its importance in society. If American citizens were listening to our debate, they simply would not understand it. “Why are you proposing to conduct a serious fraud case without a jury?” they would ask. “Because it takes too long”. “Why does it take too long?” “Because that is our system”. “Why is it your system?” “Because it has always been like that”. That is a weak and illogical basis for doing away with a serious principle.
The noble Lord, Lord Carlile of Berriew, was quite right to point out significant change: the as-yet-untested effect of the Fraud Act; simplicity of the offence; the growing effect of complex trial protocols; new ways of doing things; shortening matters; introducing technical evidence in an attractive way; and time-limiting us lawyers.
On the last of these, why not? I once heard a prosecutor being told by a judge in a New York trial concerning a fraud about letters of credit that, with five defendants, he had 30 minutes to close the three-week trial to the jury. He dealt with the first defendant as follows. He explained in about a minute the man’s defence, then looked at the jury and said, “If any of you guys believe that, meet me after court because I am going to sell you the Brooklyn Bridge”. He then moved on to the second defendant.
Are the Government really saying that the complexity and length of trials involving dishonesty mean that they are not capable of being judged by the ordinary folk of this country? Everybody knows dishonesty when they see it. The questions are not as complex and long as we claim they ought to be. It is a disgrace that any trial should take more than three months. That the six that we heard of took more than a year is unbelievable and unjustifiable.
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I looked up what our party’s manifesto of 2005 said on this issue. It stated:
- “and the way that fraud trials are conducted to update them for the 21st century and make them quicker and more effective”.
I invite my noble and learned friend the Attorney-General to explain to us in his closing remarks how this Bill will make trials quicker and more effective; in other words, more intelligible and shorter. I have seen nothing in the Bill, nor heard anything said, that shows that objective being achieved in this legislative context.
Even in this modernising 21st century, we should not forget the basics. There is nothing more basic than to sit in a court room and watch one citizen being judged by other citizens. It is absolutely essential. We do away with it at our peril, and we certainly do not do away with it without compelling evidence that it is necessary.
5.28 pm
Lord Mayhew of Twysden: My Lords, the noble Lord, Lord Brennan, has applied to his own speech his criteria of intelligibility, simplicity and attractive presentation.
As Solicitor-General in 1986, I supported the then Government’s decision not to accept the recommendation of the majority of the Roskill committee that serious and complex fraud trials should be tried by a special fraud tribunal, consisting of a judge and a small number of a specially qualified lay members. I preferred to retain the jury system, and I still do. Perhaps it is right that I should begin by declaring that I have form.
Like the noble Lord, Lord Carlile, I propose to leave to others the well recognised and, to my mind, compelling virtues of jury trial. I would otherwise be only repeating and no doubt spoiling what many others have said in that regard. I shall make only a single point, which is that this state of conflict which today’s debate has illustrated is no kind of background against which to introduce an important constitutional change, especially one which bears on our rights as citizens to be tried by our peers, and especially when so many innovations, sensibly and properly made by government and the judiciary in recent years, have yet to be proved and evaluated.
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