Fraud (Trials without a Jury) Bill

My Lords, there have been many good speeches and highly pertinent points have been made, so I will try to keep mine very short. We are dealing with one of our historic rights and liberties. The noble Lord, Lord Brennan, could not have put it better when he pointed out that every citizen has both the right to be tried by jury and the duty to sit on a jury. That, as the noble Baroness, Lady Mallalieu, said, was drawn to our attention by Blackstone 200 years ago and reinforced by Lord Devlin, who has been rightly quoted. Juries are exceptionally well fitted to try questions of honesty and dishonesty. They have shown that in complex fraud cases just as much as in any other type of case. Although the Serious Fraud Office had a tricky time during my period as a law officer, I did my best to build it up and it has done remarkably well. I hope that the Government are not going to dismantle it. About eight or nine cases were described as having collapsed during those years, and I have made it my business to look into every single one of them to find out why they went wrong. The problem was neverthe jury; it was always either problems with the presentation of the case by the prosecution or difficulties that the judge—and one often had great sympathy with the judge—had in seeking to analyse and sum up the case for the jury. It is now proposed that the duty of trying the key issue of honesty or dishonesty be removed from the jury and put as an extra burden on to the judge. Although I have a practising certificate, I do not practise and am not formally declaring an interest in fraud cases; but over a long career I have had the opportunity to discuss this with many very experienced fraud judges, the great majority of whom would much prefer to analyse the case for the jury in the summing-up and leave the question of fact to the jury. One of the great strengths of the system is that the jury’s decision commands huge—I would almost say complete—public confidence. It is one of the absolute mainstays of our liberties in that respect. To ask the judge to carry out all those duties and present it in a written judgment is a formidable burden. Noble Lords have been absolutely right in saying that it will not reduce costs and it is unlikely to shorten cases, particularly if, as the noble and learned Lord the Attorney-General said, it will bring in many more charges. There is a point in being able to bring the full ramifications, or a sufficient number of them, to present the overall dishonesty. I know that that matter has quite rightly concerned the noble and learned Lord the Lord Chief Justice, with whom I have had the privilege of discussing these matters, but I could not properly go further than to say that. The Government have rightly addressed that serious point. Taking that into account, I am quite certain that one should always focus, if possible, on the main charges only. If you can convict on the main charges there is no point in overburdening the case with a lot of charges, particularly in relation to the smaller fry. As noble Lords have pointed out, juries have shown themselves well capable of distinguishing between the real architects of the fraud and the lesser individuals. They have very often rightly acquitted the lesser individuals while convicting the main architects of the fraud. The noble and learned Lord the Attorney-General said that the average conviction rate over the past five years was 61 per cent. In my day, I looked at that figure and at the proportion of cases in which Mr Big was convicted, which was significantly higher than the overall average conviction rate. I can tell the House with absolute confidence that juries have no hesitation in convicting fraudsters if they are satisfied that their guilt is proved. For this reason I believe that the Government are going down the wrong course in this Bill. The criticism that it might be the thin edge of the wedge cannot be ignored. It has to be remembered that this is the fourth or fifth attack on the jury system brought forward by this Government in the past 10 years, starting with very small cases, on the basis that they were only very little—I think that that is the Victorian cartoon about a baby—and now in serious and complex fraud cases, on the basis supposedly that there are only a very small number of them and that that is where it will stop. Anyone who has been a Minister knows what the words ““The Government have no plans to do so”” mean. It means that it is not part of their current proposals for the coming Session; it does not mean that it will not be part of some future proposals. I will say no more about that. The criticism of the idea that the Parliament Acts might be used is vulnerable on several grounds. First, as has rightly been said by almost all noble Lords, this is a huge, historic constitutional issue in which the Parliament Acts should never be used, except in extremis. The manifesto does not say ““we propose to abolish trial by jury in any circumstance””. As the noble Lord, Lord Brennan, indicated, the words used have already been put into effect and the new protocols should be given time to work. I believe they will work. The mood for more efficient prosecution of fraud and complex cases has been growing over the past 10 to 15 years and will continue to do so. The counter act to a use of the Parliament Acts might be repealed by some future Government coming in, but I do not think we want to get into that kind of ding-dong. Let us draw back and think carefully now. Let us allow the present protocols to work. I will finish on the burdensomeness of the duties on the jury. Although I take an entirely different view on this matter from, the noble Lord, Lord Rosser, he did the House a service by pointing out that can be very burdensome to sit on a jury. That is the defence of our liberties. Blackstone, as quoted by the noble Baroness, Lady Mallalieu, reminded us of that. We are all conscious in this House, and our children and grandchildren will look back at it further, that in defence of our liberties our parents fought the Second World War and our grandparents went through the ordeals of the First World War. How does sitting on a jury compare with that in the defence of our liberties? What do the jurors think in any event? It is not the length of time that they resent; it is when a case collapses, when they perhaps are fully on top of it and the opportunity to do justice is taken from them through no fault of their own. Let us continue with our present system.