Fraud (Trials without a Jury) Bill

For two reasons, my Lords: first, because the Opposition are, ultimately, opposed to the principle of changing the rules about jury trials in criminal cases; and, secondly, because the reaction of the Government during the Commons stages resulted in us having no prospect of any amendments that we might have tabled being accepted in any event. For both those reasons, we have chosen to table today’s amendment in your Lordships’ House. On the substance of the matter, as your Lordships are well aware, jury trial has been a central component in the conduct of all serious criminal trials for about the past 700 years. Its contribution to the preservation of the liberty of the individual, and to the legitimacy of Government, is quite incalculable. In particular, it is not the state but the community and individuals within it that determine who is responsible for depriving individuals of their liberty. This process has been endorsed by each generation for all of those centuries; so it will require some very cogent evidence and powerful arguments to convince us that the system needs changing. We submit that the Government have simply not produced them. There are a number of reasons for getting rid of jury trial, or modifying it, that might reasonably be argued. One is the question of the length of fraud trials, which are expensive and take a long time. Would the measure proposed by the Government make them any shorter? Well, the answer is no. When the noble and learned Lord and I attended a seminar in January 2005, arranged by his department, the now Lord Chief Justice—then Master of the Rolls—was a participant. The noble and learned Lord, Lord Goldsmith, will recall the noble and learned Lord, Lord Phillips of Worth Matravers, saying in terms, as Master of the Rolls, that switching from jury trial to trial by judge alone in long and complicated fraud trials would not shorten them. Indeed, if the noble and learned Lord, Lord Goldsmith, were to read the Second Reading speech of the Solicitor-General on this Bill in another place, he would have seen that the Solicitor-General adduced, as an important component of the Government’s thinking, the fact that they want the opportunity to present what the honourable gentleman described as ““the full criminality”” of the accused to the court. He suggested that this would be much easier to do in front of a judge sitting alone than in front of a judge with a jury. I shall later question whether that is true. However, more immediately, my understanding of the problem that the Serious Fraud Office faces is not whether it can represent the full criminality but whether it can secure a conviction at all. That issue in no way calls into question the jury principle—unless of course the Government are going to suggest that it is easier to secure a conviction in front of a single judge than itis in front of judge and a jury. Nothing in the Solicitor-General’s proposal will shorten fraud trials. If anything, it will lengthen them because much more evidence will be put in front of a single judge than in front of a judge and jury, and no money whatever will be saved. The second suggestion is that juries are not capable of understanding the complexities of fraud trials. This has been firmly disproved by the outcome of the Jubilee Line case. Your Lordships will remember the debate in this House of the report by Mr Stephen Wooler, Her Majesty’s Chief Inspector of the Crown Prosecution Service, after the breakdown of the Jubilee Line case. All the jurors were interviewed many months after the trial broke down. A special study was conducted by Professor Sally Lloyd-Bostock of the University of Birmingham. The conclusion drawn by Mr Wooler and Professor Lloyd-Bostock was that the jury had a very firm grasp of a large number of extremely complicated issues, even after seven or eight months and without referring to any documents whatever to refresh their memories. Indeed, the Solicitor-General went out of his way in another place to say that the Government were not contending that the jury was not capable of understanding complex cases. I am at a loss to know why the Government have continued to use the word ““complex”” in the standard laid down in Section 43 if what the Solicitor-General said in another place not so long ago continues to be government policy. If the trials are not going to be any shorter, and if a jury is perfectly capable of understanding all the complexities of the evidence presented, what argument is left to the Government? The Government have said that the real problem is that these trials are too burdensome for the jury, and use a number of criteria to explain this, including the disruption of family life. However, many other sorts of trials are also long and complex. There are health and safety trials, narcotics trials, many trials relating to child abuse and terrorism trials. Many of these trials are equally lengthy and equally complicated, and often involve vast amounts of documentary evidence. What is the difference between a long and complicated fraud trial and a long and complicated trial of many other issues? I suggest that there is no difference whatever; so how long will it be before the Government come up with another Bill dealing with another section of criminal law in which it is alleged that a jury is simply incapable of understanding the matters, or that the matters are far too burdensome for a jury to get to grips with? One of the things that most concern the Opposition is that we are being presented with the thin end of the wedge. If we allow the Bill to go to Committee and to make its way through the House, and if it ultimately gets on to the statute book, this will then set a precedent for removing juries from other cases; and that would be quite unacceptable. It was also suggested in another place that juries are in some way unrepresentative. It is true that on long trials quite often the composition of the jury is made up of perhaps a disproportionately large number of ladies and retired or temporarily unemployed people. But that is true for all long trials, not just for trials for fraud. Moreover, whatever the composition of a jury, it is likely to be far more representative than the judge alone. Perhaps I may draw your Lordships’ attention to what it would be like for a single judge to try a case like this. In any jury trial, the jury sees only admissible evidence. A great deal of evidence is brought before the judge by the prosecution asking for it to be admitted into the trial. The judge reads that evidence and considers whether it is admissible. If it is inadmissible thejury does not see it. I am thinking particularly of hearsay, confessions or propensity evidence. But if the judge is not only the judge of law but also the judge of fact, in a single-judge case, he will have to read all the evidence. He will see all the evidence which he, for one reason or another, goes on to declare inadmissible. I am not suggesting thatthe judge is not capable of divorcing inadmissible evidence from admissible evidence, but in some cases it may be very difficult. However, the perception of the public will be that he cannot. In another passage in the debate in another place, the honourable gentleman the Solicitor-General suggested that one way to shorten a trial would be for the judge to read himself into the case so that it would not be necessary for what he read to appear before the court. That is a quite unacceptable proposition. A cardinal feature of trials in front of a jury is that the defence has an opportunity to cross-examine all the evidence put against his client. But if the honourable gentleman—