Fraud (Trials without a Jury) Bill

My Lords, each of the preceding 12 speakers has identified a problem with jury trials: problems of length and complexity. There is agreement in the House about that, but none of those who defended the Bill has given any indication that either of those problems will be met by this measure. I am sorry that two speakers got up and half-apologised for being non-lawyers, because this Bill is about reducing the involvement of ordinary people who are, in the main, not lawyers in our legal process. That is one of the reasons why it is fundamentally flawed. It says much for the personal and persuasive powers of his advocacy that my noble and learned friend the Attorney-General has managed to make this legislation, which I believe has the potential to do immense damage to a cardinal principle of our criminal justice system, sound modest and half-reasonable. I believe that it is neither of those things. I too have to declare form in that I have been in practice at the criminal Bar for more than 30 years. I have watched juries in action, day in and day out, in cases which were on occasion complex, lengthy and burdensome to all involved and which occasionally also involved fraud. The Bill’s first flaw is that it approaches only one tiny area of the criminal law. Fraud does not have a monopoly of complexity. A very short case, as the noble Lord, Lord Kingsland, pointed out, may involve technical or scientific issues or a sheer bulk of evidence, which are difficult to convey to a layman and, very often, to a lawyer. Fraud does not have a monopoly on length. Cases with a large number of defendants, in particular where there are many witnesses for the prosecution and perhaps many for the defence, may involve relatively straightforward facts—in other words, who did what to whom during an affray? However, they still take a very long time to try and do impose the burdens, about which we have heard, on jurors. Fraud does not have a monopoly on long trials or on causing inconvenience. All jury trials, especially long ones, cause inconvenience to jurors, even when they have been given a reliable estimate of length at the outset and when, on occasions, those estimates are inaccurate because of unforeseen delays. In those cases, the inconvenience is magnified. There are problems with all long jury cases; yet the Bill makes no attempt to tackle the real problems to which, I believe, there are real solutions. Instead, it simply sacrifices the principal cornerstone of our criminal justice system: that serious crime is tried by ordinary men and women sitting as a jury. I believe it makes that sacrifice for no good reason. Jury trial matters. It is one of the main reasons why our criminal justice system is still the most respected in the world. Justice is done in public. Our criminal law is not just the province of lawyers, but in every criminal trial, the law is interpreted in a practical way by 12 lay people—they are usually lay people—in a way that, through their verdicts, sets public standards of morality and honesty that reflect the changes in society. Juries are largely incorruptible and, most importantly, as others have said, they command public confidence as no individual can, however distinguished a lawyer he or she may be. What is more, juries get it right more often than any other system. When the Labour Party came to Government in 1997, I never thought that just 10 years later I would be saying to a Labour Attorney-General, trust the people. Jury trial and its continuation for all serious allegations of crime is not just of historic importance and is not just of importance to woolly liberals who have been dismissed by recent Home Secretaries; but, apart from throwing away 700 years, it is, or it should be, of importance to anyone and everyone who cares that those who commit crimes are convicted and those wrongly accused are not. What are we really talking about? What is the justification for the measure that is before the House? It does not follow the recommendations of either Lord Roskill or Lord Justice Auld in its detail. We all recognise there is a problem; not only does it affect juries but also defendants, their relatives, the judges who have to sum up at the end, witnesses, police officers and even lawyers. However, the problems are not faced by the Bill. Somewhere in the Chamber is an elephant which my noble and learned friend refuses to confront: the suggestion that juries cannot understand difficult cases. It would not be possible for the noble and learned Lord to say that juries cannot understand complex fraud, so he does not do so. However, it is implicit in the wording of the notes to the Bill that I picked up from the Printed Paper Office in this House. That suggests that complexity makes a trial too burdensome for ordinary men and women. Fraud is about dishonesty. Time and again, a jury of 12 people has shown that it can tell what is dishonest; what is more, our criminal law defines ““dishonesty”” by the standards of ordinary men and women. Therefore, it is ordinary men and women, not professional lawyers, accountants or experts, who should make that decision in the courtroom. If there is any real evidence that juries are bamboozled into making wrong decisions by complexity, I have yet to see or hear it and I hope the Government will produce it. It is said that it is easy enough to prosecute what is sometimes called blue-collar fraud but not white-collar fraud and, therefore, sometimes people who commit more complex fraud get away with it. Surely, the solution to that cannot be to create a two-tier justice system with different modes of trial for each of them. That is a mad logic and cannot lie with equality before the law. From my reading of the debates in another place, I had not understood that it was suggested on behalfof the Government that cases tried by a judge alone will either cost less or be any quicker. I had not understood that until I heard my noble and learned friend today suggesting that they might be quicker because a judge would be able to go away and read the evidence. Is it suggested that these new-style fraud trials are to take place away from public scrutiny? A cardinal principle of our criminal trials is that evidence is presented in open court for all to see and hear rather than a judge reading papers in his room and then emerging to give a ruling. Where is the evidence that this measure will cost either a penny less or save any time whatever? Nor is it suggested that conviction rates, which are already higher than average according to the Serious Fraud Office statistics, will necessarily rise. To confront the problem, which we all recognise, we need something to which speaker after speaker has referred: a concerted effort that has already begun to deal with how long cases like these, whether fraud or terrorism or whatever, are presented before a jury. I agree with what my noble friend Lord Brennan said; I do not see why any trial should last more than three months. Most trials should have no more than three people in the dock and, looking at the protocol, produced by the noble and learned Lord, Lord Woolf, two years ago, at the Fraud Act, which was produced last year, and at the proposals of the Criminal Bar Association, there are many ways in which case management could be vastly improved. Judges perhaps have been too timid about intervening. Not that long ago, I had a case in front of a judge who was far from timid. The case was likely to last some time and involved very young witnesses. We were told that no subject could be raised by more than one counsel in cross-examination—in other words, one counsel dealt with a topic and that was the end of it—and that no one was to cross-examine for more than half an hour. We got our act together and we did it. It was not unlike this House. At Second Reading, speeches are not time-limited and we speak for longer, but if we are given a fixed time we usually stick to it. That could be done in courts up and down the land, with proper timetabling and a robust approach to case management. That would render the whole of this exercise, the whole of what my noble and learned friend has done, unnecessary. The handling of jury trials and of jurors has improved greatly, but there is a huge amount to be done and a willingness to do it. I am very sad that instead of embracing that willingness, my noble and learned friend has chosen to do something which, in my limited experience in this Chamber, does not work well; that is, to threaten the House. We do not need a measure that masquerades as a modest little proposal, designed to deal with only a very few cases each year, but which, in reality, sticksa knife into the main artery of our criminal justice system; that is the principle that all serious crime should be tried by a jury of ordinary men and women. We now need to tackle those two problems: how we present complex issues and how we can reduce the time for which everyone involved in a case has to be present. That can be done. I am troubled by my noble and learned friend’s remark that there are no plans to extend this provision to other areas. I am afraid that that givesme no confidence, because we have heard those assurances before. On criminal justice issues, often government plans appear to have been made at very short notice in response to that day's newspaper headlines. In another place, Mr Quentin Davies reminded the House of what Blackstone had written in his commentaries 200 years ago. I apologise for doing the same, but those words are so apposite to today's debate that they are worthy of note. He said, "““let it be again remembered, that delays, and little inconveniences in the forms of justice, are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concern””." That must not be allowed to happen. I regret that I shall be unable to support my noble and learned friend in the Division Lobby tonight.