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Lord Maclennan of Rogart: This debate has been largely dominated by the lawyers among us. Although I am in a formal sense a lawyer, having qualified and briefly practised at the Bar, I do not claim any expertise in the field of criminal law. Indeed, in the last case in which I was involved, I unsuccessfully defended the distinguished historian CV Wedgwood from a charge of driving without due care and attention. That certainly cannot be said to qualify me to speak as a lawyer but, nonetheless, I speak in support of what the noble Lord, Lord Hunt, said about there being cause for pause.

It is not the first time that we in Parliament have had before us proposals to do away with jury trial in long and complex cases. I remember the debate on the Roskill report on serious fraud cases. In another place, of 12 Back-Bench Members who spoke, 11 spoke against the proposal to accept the Roskill commission's recommendation that serious fraud cases should be tried by a judge and two assessors. Periodically, Home Office Ministers return to that proposition but, once again, it is right that the Minister should pause.

I do not apply the arguments that have been so eloquently advanced in this debate, especially by the noble Baroness, Lady Kennedy of The Shaws, about whether justice is more or less likely to be done with or without a jury trial in the circumstances described in Clause 42. I found what she had to say on the subject enormously convincing.

What I found surprising is that the argument about justice being done is not what appears to lie behind Clause 42. It is not about the greater or lesser likelihood of convictions being wrongly obtained—innocent people facing conviction or people who are guilty being found innocent. Strangely, if the Bill's language is to be believed, it is about the burden to be placed on a juror faced with such a case. Non-lawyers have every bit as much right to speak about that justification as anyone else. Few responsibilities or

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rights of citizenship are so widely understood and accepted as is the duty to serve on the jury. The right to vote in an election is perhaps the other attribute of citizenship that the wider public understands.

I am not among those who would argue that the only system of fair and just tribunal that falls under the scope of the rubric of the European convention is the jury trial. How could I? I am a Scot and it is rather less frequently used there. Nor am I inclined to invoke arguments that any criminal justice system is perfect—certainly none that has passed through as many transitions as has ours since jury trials were invented.

Indeed, I went so far as to write the libretto of an opera about a Scottish jury trial in which Thomas Muir, a great radical reformer, was wrongly convicted of the Scottish equivalent of sedition. Of the 15 jurors, 11 of them were paid servants of the Crown. But we do not live in those times and the public does not have that sort of attitude today to jury trials.

I think that people accept that it is an obligation of citizenship which, if they are invited to discharge it, may be burdensome but not so burdensome that they should not assume it with pride and willingness. As a Member of another place, I of course was never called on to do that, but many of my family have been, to their great inconvenience. I have never heard serious suggestions that that was an obligation that they would not be prepared to meet.

If there are better arguments for Clause 42, I hope that the Minister will deploy them in answering the debate. The reasons in the Bill are wholly inadequate to cause us to change the law in an area in which, it must be said, the reputation of the law may be fragile, to the detriment of the fabric of our society.

5 p.m.

Lord Donaldson of Lymington: I shall probably be drummed out of the profession when I sit down, but that is a risk I must take. Of course I accept that the public has great confidence in jury trials, but I am not sure that it follows from that that they would have no confidence in a trial by a judge alone—or, as I should prefer, by a judge sitting with two magistrates, or something of that order. That does not follow at all.

We ought also to consider whether the public's confidence is justified. My personal experience suggests that it is, to the extent that it is unlike a jury wrongly to convict. From my experience—and I have had more criminal experience than I am sometimes given credit for—I led two cases in which I was virtually certain that the jury would convict and was equally certain that it ought not to convict. I broke some of the rules and instructed the members of the jury that, in all the circumstances, it would be more sensible if they returned a verdict of not guilty. With slightly surprised expressions on their faces, they did so.

However, I have come across a number of cases in which—perhaps I am narrow-minded as a judge—I had not the slightest doubt that the jury was wrongly

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acquitting. Although that is not as great a miscarriage of justice as is the other way round, it is a miscarriage of justice.

Against that background, I do not understand why the defendant should not have a choice. We have had the benefit of the long experience of the noble and learned Lord, Lord Cooke, of what happens in New Zealand. The system appears to work well there and I cannot understand why the whole edifice of justice will crumble if people are allowed to opt out of jury trial.

The only person who has advanced a tenable argument in favour of that view is the distinguished legal editor of the Daily Telegraph, Joshua Rozenberg. In an article a couple of months ago, he said that the trouble with Clause 41 was that if those who were innocent chose to be tried by a judge—he said that they might well do so, because it is a much more efficient form of trial and the chances of achieving justice if they were innocent were much greater—we should soon slide into a situation where anyone who failed to opt for judge-alone trial would be regarded as halfway to having admitted his guilt. I do not subscribe to that view. However, it at least suggests that he, with his experience and of course being much more in touch with the public and the judges than I am in that I have retired, thought that the public might take the view that if they were innocent there was a great deal to be said for being tried by a judge alone.

I totally reject the idea that the jury is the great bulwark of liberty against the establishment. I tried to think of cases in which it might be said that that was so, and could only think of two. I mentioned them at Second Reading. One was the attack by some anti-nuclear protesters on a submarine in the Clyde. They did a certain amount of damage and were triumphantly acquitted, although it is not clear on what legal basis they possibly could have been. The other was the great case of GM crops, where again there was a totally perverse finding of not guilty. But the establishment was not shaken and there has been no change in the law, so I do not think that there is much to be said for that.

I shall move on to Clause 42. It is said that it is the pride and duty of every citizen—I would certainly have been interested to do it, but that is a different matter—to sit on a jury. Duty, yes, but I query pride. Certainly on a long trial, I would very much query that. I was taught as a judge that one had to be very careful, when one sent a jury out or when it was out considering its verdict, not to be obstinate about considering the possibility that it might have to be discharged. If one keeps sending a jury out and saying, "You must try, you must try", one risks a situation in which those in the minority on the jury say, "All right, I give in. We must get home. We must reach finality".

Judges have been taught over the years to avoid that, but that is the situation that one will get into if one has a very long fraud trial. It is said that juries are wholly suitable for such trials because the conviction rate is 86 per cent. That figure frightens me. It is so out of line with the rate of conviction for non-fraud cases that I wonder whether the serious fraud squad is right in claiming—I do not doubt that it does—that it picks

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all the winners, and whether the jury simply does not understand and comes to the conclusion in some cases that people would not have been charged if they had not been guilty.

It is then said that one can simplify a fraud case. To some extent one can, no doubt, but to some extent one risks arriving at a situation where one is trying something different from the real offence. As a follow-up to that, it is said that every fraud case comes down in the last resort to a question of honesty or dishonesty, and that the man in the street is a wonderful judge of what is honest or dishonest. I could not disagree more. One has only to consider the difference between tax avoidance and tax evasion to see that very few juries would be capable of distinguishing one from the other. Provided that there was a profit in it and that it was something that they had not thought of, the chances are that they would regard it as dishonest.

On the subject of jury tampering, until today I was of the opinion that it was very regrettable that the police had to spend a lot of time, money and resources on protecting juries. However, I have certainly been persuaded by the letter in The Times today that it is not entirely a question of protecting juries, because bribery or attempted bribery cannot be protected against by the physical presence of policemen. Where that occurs and someone finds, as was described in the letter, a note of unknown denomination under his windscreen wipers with a clear indication that it is an advance payment, no amount of ordinary police surveillance would deal with that.

I should come back to the point about judges being protected from media scrutiny if they have juries. I entirely agree with the noble and learned Lord, Lord Cooke, that judges have to put up with that. Physical attacks are slightly different, but they have to put up with them, too. I was interested in the case of the French magistrate who apparently was told by her minders that she must watch out for rooftop snipers. Members of the Committee may think that fanciful, but I lived in the Temple when I was trying IRA cases, and my minders said, "You pull the curtains before you put the lights on, because of the rooftops nearby". It happens to us all, and it is just one of those things that goes with the territory.

I will support all three clauses, but I hope that consideration will perhaps be given to substituting, for a judge alone, a judge with two magistrates. I used to sit in the national industrial relations court with two full members of the court, and found that a great assistance. In the days when there were quarter sessions, I sat as the deputy chairman of Hampshire quarter sessions with magistrates, and again found that of assistance. I would not mind in the least having to give reasons, but I would like someone to discuss the matter with before I decided and gave my reasons.

5.15 p.m.

Lord Davies of Coity: I understood the noble and learned Lord to say that he did not believe that a jury was a bulwark against the establishment. Let us assume that that is correct. Is it not also correct that

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the perception is very clear by the people of this country that if a judge makes the judgment, that is a judgment by the establishment, whereas if a judgment is made by a jury, it is not one made by the establishment?


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