Fraud (Trials without a Jury) Bill

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. 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: "““No responsibility for the inconclusive outcome of the case can properly be attributed to the capabilities or conduct of the jury. Overall, they discharged their duties in a thorough and conscientious manner, and the fact that the trial became unmanageable was not their responsibility””." 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: "““It is not our case that jurors are not clever enough to understand complex fraud cases. That is a straw man that the Opposition seem to put up each time we debate this issue. That is not our claim””.—[Official Report, Commons, 29/11/06; col. 1089.]" He went on to say in the same speech: "““I am not advancing what the hon. and learned Gentleman describes as the stupid jury argument—not at all. I want to make it very clear that it is not our claim that juries are incapable of understanding complex fraud cases””.—[Official Report, Commons, 29/11/06; col. 1098.]" 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 exactly50 years ago, Trial by Jury. The verities that are dealt with I think are immortal. Here it is couched in the undying prose of Lord Devlin: "““Each jury is a little parliament. The jury sense is the parliamentary sense. I cannot see the one dying and the other surviving. The first object of any tyrant in Whitehall would be to make parliament utterly subservient to his will; and the next to overthrow or diminish trial by jury, for no tyrant could afford to leave a subject’s freedom in the hands of 12 of his countrymen. So that trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives””."