Fraud (Trials without a Jury) Bill

My Lords, I happened by coincidence to be reading a summing-up on Sunday, and I shall quote what the judge said to the jury. I think it is helpful to see how democratic principles are applied to a jury, to follow what the noble Lord, Lord Brooke, was saying. The judge said: "““You stand in between the state and the accused person. Trial by one’s peers has a long history in our jurisprudence as being the most tried and tested method of determining guilt or innocence of one's fellow citizens. It is an important right. Each of you will have come to the court bringing with you all of your lifelong experiences, coming from a cross-section of society, as to how people behave in our society, as to what is acceptable and unacceptable, and, most importantly, each of you brings with you, your innate common sense””." That was the summing-up of the Honourable Justice Brook in a capital case of murder in the Port of Spain Assizes in Trinidad last year. It illustrates better than I can think the way in which we should be proud of how we have exported all over the world the concept of a democratic jury to determine guilt or innocence in serious criminal cases. Nothing could have been more burdensome for the jury than that case, which ended with the judge saying to the defendant in sentencing him: "““May the Lord have mercy on your soul””." The noble Lord, Lord Brennan, referred to the United States of America carrying that same proud tradition. The trial of one of our number, the noble Lord, Lord Black of Crossharbour, is about to start in Chicago. It is said that there are 2 million documents. It is a trial with a jury and it is estimated that it will take four months. That gives you some idea of how, with a proper approach, a trial can be confined. In the Enron trial in Texas, a jury listened to56 witnesses over 15 weeks and studied 20 boxes of documents. It found the two former chief executives guilty of fraud and conspiracy. After the guilty verdict the jury gave a press conference, which is a good example of transparency, which we do not have in this country. It is interesting to see how representative the jury was. To hear the arguments advanced, sometimes you would think that the jury comes from the most unemployed people in our society. In this case, a payroll manager, Carolyn Kuchera, said: "““We were responsible. We were always accountable. We had to find a way to circle back and tie up loose ends. And I think those [Enron] employees were entitled to the same thing””." A business owner, Wendy Vaughan, said they were given, "““a puzzle with about 25,000 pieces dumped on the table””." The jury forewoman, Deborah Smith, who works in human resources at an oil services company, said that the jurors came with a variety of life experiences but a mutually high level of endurance. The issue at the end was simple: dishonesty or not. She said: "““It’s hard to believe that the defendant, such a hands-on individual, could not possibly know the things that were going on in the company””." She said of the jury itself: "““I think the balance we had on this jury was very effective. We got to know each other, respect each other and listen to each other””." There you have the democratic process of the jury, which we have exported to the world, working. The collapse of the Jubilee Line trial here led the head of the SFO, Mr Robert Wardle, who, your Lordships will recall, was the decision maker who bravely risked the wrath of the Prime Minister and the Attorney-General in pulling the British Aerospace bribery investigation, to express his belief that traditional methods no longer work in long fraud cases. It may be that that is where this is all coming from. He called for early plea bargains and the removal of juries. The head of the Serious Fraud Office said that. Well he would, wouldn't he? However, the report—referred to by many of your Lordships—from the Chief Inspector of the CPS Inspectorate, Mr Stephen Wooler, who investigated the collapsed trial, stated: "““The jury did not appear to have any difficulty understanding the evidence or the essentials of the case””." That throws through the window the view expressed in Lord Roskill’s report, which was not accepted by the Government of the day, that the jury suffered from ““cognitive unfitness””—in other words, they did not know what they were talking about. The argument has shifted. In the other place, the Solicitor-General, Mike O’Brien, said in relation to the Bill: "““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.]" That is an answer to some noble Lords on the Benches opposite. What is ““burdensome””, to use the word from the Act? What is burdensome to the jury? It is now said that the length of such trials represents, "““an unreasonable intrusion on jurors' personal lives””." The complexities of the case will place a burden on ordinary members of the public. Your Lordships will recall that the Jubilee Line case lasted some two years. In the Wooler report, the jurors said that they were ““pleased”” to serve for nearly two years and that they took their task seriously and were committed to jury service. As the noble and learned Lord, Lord Mayhew, said, they were incensed that the case had been stopped before they could come to their conclusions. The argument, as many of your Lordships have said, of unreasonable intrusion on jurors' personal lives applies, of course, to any long trial, such as in cases of terrorism, where there will be much evidence of surveillance; trafficking in people or drugs; corruption; murder/manslaughter; or any conspiracy. There is nothing special about fraud, as the noble Baroness, Lady Mallalieu, said, which makes it overlong. If the Bill goes through it will not be long before there will be pressure to try any case that is likely to last more than six weeks or three months by judge alone. Mention has already been made by the noble Lord, Lord Clinton-Davis, of the fatal words: "““The Government have no plans to extend the Bill at this stage””." I remind the noble Lord, Lord Brooke, that no argument has been advanced that convictions will be more likely as a result of a transfer to a judge-alone trial. That is not the argument. That would be surprising because where there is a trial, 81 or 82 per cent of defendants are convicted, which is higher than in almost any other category of crime. The Solicitor-General pointed out the advantages of trial by judge alone, as he saw it, in the Bill's passage through the Commons. He said: "““A judge can curtail lengthy speeches by … windbag lawyers””" to, "““ensure that the trial proceeds much more expeditiously””.—[Official Report, Commons, 29/11/06; col.1101.]" That was his first point. I am sure that the noble Baroness, Lady Miller, will allow me to remind her that I fancy that the Court of Appeal would have said, ““Just tell us your best point, Mr O’Brien””. Juries are not persuaded by wind; they are much more persuaded by the leader spoken of by the noble Lord, Lord Brennan—the one who is succinct and to the point. The ““windbag lawyers”” is just abuse with no foundation in fact—not even in Birmingham. I see the noble and learned Lord, Lord Archer, here, so especially not in Birmingham, where Mr O’Brien practises as a criminal solicitor—or did so. The second point is that there will be much less need for cases to be severed or for sample charges. Justice can be done by exposing the whole criminality of the case in a single trial. We have heard that argument advanced by the noble and learned Lord the Attorney-General today as well. That is the great error of assuming that by lumping together all the charges that you can think of, putting in all the evidence, adding as many defendants as you can, there will be a greater degree of justice. Nothing could be further from the truth, as any practitioner will tell you. The whole point is to simplify, pare down, make clear exactly why, if you are prosecuting, you want a person convicted. It is only right that when someone goes to prison as a result of having been convicted of a crime, the argument has been advanced in such a simple and clear way that the public understand it. We do not want a system where so much is thrown in front of a judge that no one can understand whyX has gone to prison for three years. There must be clarity. Indeed, in the Domestic Violence, Crime and Victims Act 2004, the Government introducedthe trial of sample counts by a jury. As far as I know, that has not been implemented. If there is no simplification, no cutting down on documents and no paring of the issues, prosecution cases will be less well prepared and less concise, and trials will be longer. The only ones to gain, as usual, will be the lawyers with high fees. Mr O’Brien’s third point was that a reasoned judgment will demonstrate that all procedures have been followed. The American solution is to allow the jury to hold a press conference, as I have already pointed out. I have some experience of these reasoned judgments from the district court in Hong Kong, where a judge sits on his own in fraud cases. I echo the noble Lord, Lord Carlile. Do not think that a reasoned judgment will result in greater acceptance of a verdict of guilty by the defendant or will lead to fewer appeals. As the noble Lord, Lord Carlile, said, every case is likely to be appealed. The virtue of the jury verdict is that it is conclusive. There is no partial blame; you are either guilty or not guilty. Every verdict, wherever it is given, in any court in the country, carries the same weight. It is conclusive. You do not have to look at the small print to see why that verdict was arrived at. What the Government propose is, in effect, a special court for white-collar crime, where the criminality of the defendant is tested not by a cross section of the public, but by a single white-collar judge. I think the noble Lord, Lord James, would be opposed to that. This is supported by lawyers in the Government, including the noble and learned Lord the Attorney General, whose lips would have curled, in practice, at the thought of appearing in a criminal court before a jury. They are happy to have commercial cases tried by a single judge and would probably have thrown a criminal brief out of the window, as shown by one of the favourite anecdotes of the noble Lord, Lord Hooson, from his brief sojourn in Sir Patrick Hastings’s chambers. The noble Baroness, Lady Kennedy, is not in her place. I understand that she is in America to receive an honour for her work in human rights. I remember her comment to me when we were talking about our responsibility, as criminal lawyers, for people’s lives, rather than cash. She said that it did not pay very well, but at least it was fun. The noble Baroness,Lady Kennedy, warned the House, when opposing Section 43 during the Committee stage of the Criminal Justice Bill, of undermining public confidence in the judicial system. She said: "““In some high-profile cases, there may be a public perception that the judge is a man brought in to do a job for the state””.—[Official Report, 15/07/03; col. 780.]" I have no hesitation in quoting her further. To my chagrin, I cannot better what she said: "““Juries keep the law honest and comprehensible because working with juries—as those of us who work with juries know—puts an obligation on all of us to explain the law and the rules and to apply the standards of the public to what is right and wrong. The jury stops the law becoming opaque. It stops the law becoming closed and sometimes even dishonest””.—[Official Report, 15/07/03; col. 779.]" I entirely agree with the words of the noble Baroness, Lady Kennedy. This Bill should go no further. Mr Robert Wardle may think that it will make his task easier; he is wrong. We are threatened with the Parliament Act, but surely this is not as important to the Government as hunting, is it? I see no advantage in cost savings, the simplification of issues, greater transparency or—above all—fulfilling the aim of the criminal justice system, which is to protect the innocent and punish the guilty. This Bill should be thrown out.