Previous Section Back to Table of Contents Lords Hansard Home Page



34APage 29, line 26, after second "is" insert "evidence of a"
34BClause 43, page 29, line 37, at end insert—
"(7) The following are examples of cases where there may be evidence of a real and present danger that jury tampering would take place—
(a) a case where the trial is a retrial and the jury in the previous trial was discharged because jury tampering had taken place,
(b) a case where jury tampering has taken place in previous criminal proceedings involving the defendant or any of the defendants,
(c) a case where there has been intimidation, or attempted intimidation, of any person who is likely to be a witness in the trial."

Baroness Scotland of Asthal: My Lords, I beg to move that the House do not insist on its Amendment No. 34 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 34A and 34B to the words so restored to the Bill.

I come now to Clause 43 which, together with Clause 45, is concerned with the serious and persistent problem of jury tampering. The background to these provisions is the increasingly sophisticated and determined attempts that are made in our courts to interfere with the course of justice by tampering with the jury. When the nature and extent of jury tampering threatens the fairness of the trial, the courts currently have no option other than to discharge the jury and terminate the trial, which clearly does not serve the interests of justice. Nor can we possibly expect members of the public who have given up their time to serve on a jury to undergo the stress and anxiety of actual intimidation, a genuine fear of intimidation or the misery of round-the-clock surveillance over a significant period of time.

Clauses 43 and 45 together provide a strong and effective deterrent to those who would seek to wreck trials and subvert due process by tampering with the jury. They send out a clear message that attempts to pervert the course of justice in that way will not be tolerated. Far from undermining the jury, the proposals will protect its integrity. I emphasise that the clauses are intended as a last resort. Jury protection measures will be appropriate and effective in most cases when there is a risk of tampering. I also remind the House that the test for jury exclusion in these

19 Nov 2003 : Column 1963

circumstances is a high one, and deliberately so: we anticipate that only a handful of cases each year will meet it.

Police protection is available when the court considers that there is a substantial risk that the jury may be subject to intimidation. In the most serious cases, 24-hour police protection may be ordered, with officers accompanying jurors to their homes and other places outside the court. Over the past three years, that level of jury protection has been provided in approximately four to five trials per year. The cost to the Metropolitan Police over the past two years for full jury protection has been 9 million. That is equivalent to 26,627 police days a year diverted from mainstream policing in London, or an additional 130 officers on the beat.

Increasingly, however, organised and sophisticated criminals are able to intimidate jurors despite protective measures, including full police protection. Jurors' mail, telephone calls and bank accounts are, quite rightly, not vetted. Nor are members of their family protected. Current protection arrangements cannot prevent approaches by means of telephone calls, letters, bribery or attacks—or threatened attacks—upon family members. Clauses 43 and 45 are designed specifically to deal with situations that the existing measures cannot satisfactorily address.

Questions have been asked on a number of occasions, within and without this House, about the extent and seriousness of the problem of jury tampering. As far as seriousness is concerned, I have already referred to the four to five cases each year that require full jury protection. The Association of Chief Police Officers recently reported evidence of an increasing problem of jury tampering. Chris Fox, its president, wrote about this issue on 27th October describing,


    "a clear picture of an ominous and growing problem",

which is, moreover, increasingly not confined to London and other big conurbations such as Liverpool, but in evidence throughout the country.

If serious jury tampering is allowed to continue and allowed to succeed unchecked, the outlook is grim. In a letter to my noble and learned friend the Lord Chancellor, Ian Blair, Deputy Commissioner of the Metropolitan Police, and John Burbeck, head of criminal justice at ACPO, outlined their fears of the possible consequences in the following way:


    "There is a tier of criminals in this country who are prepared to go to any lengths to evade justice. It is a fact that jury intimidation exists as a consequence of those people. If the current system cannot cope with the threat, and if the system is not improved, there will be a group of violent, sophisticated and dangerous criminals who may truly become untouchable".

A few recent examples make the point all too vividly. In August 2002, at Liverpool Crown Court, the trial of six defendants for serious drug offences collapsed because of jury tampering. Two jurors were threatened and a third juror was offered 10,000 to return a verdict of not guilty. The trial was in its fifth week and is estimated to have cost in excess of 1 million. In autumn 2001 at Kingston Crown Court, jurors

19 Nov 2003 : Column 1964

hearing a case had their cars sprayed with paint stripper. The jury was discharged and special protection was given to the retrial jury. During a trial in the west Midlands in July 1999, in which several witnesses were physically assaulted, three members of the jury were threatened on their way home from the court. The jury foreman was approached by a man who gestured that he was going to shoot him. Those are not fanciful cases; they are real, pressing and pernicious.

We have said, throughout the passage of the Bill, that we would welcome constructive suggestions for improving it. It is with great regret that I say that they have not been forthcoming in the way that we would have liked in relation to Part 7. None the less, the Government moved amendments to Clauses 43 and 45 when the Bill was debated yesterday in another place, in the hope of finding a way forward on these important provisions.

The Government's amendments to Clause 43 put beyond doubt the fact that there must be evidence of a real and present danger of jury tampering before the first condition for a trial to be conducted in the absence of a jury is met. Amendment No. 34B inserts a new subsection at the end of the clause that gives examples of the sort of evidence that may be involved. It states that they are:


    "(a) a case where the trial is a retrial and the jury in the previous trial was discharged because jury tampering had taken place,


    (b) a case where jury tampering has taken place in previous criminal proceedings involving the defendant or any of the defendants,


    (c) a case where there has been intimidation, or attempted intimidation, of any person who is likely to be a witness in the trial".

I hope that the amendments make it abundantly plain, if it was not before, that there is no question of the police and/or prosecution simply whispering in the judge's ear, in order to secure a juryless trial. Firm and substantial evidence of risk will be needed for an application for juryless trial to succeed. Our amendments make that clear and, in doing so, answer the concerns expressed by Her Majesty's loyal Opposition and those voiced in the other place by others who have spoken.

Amendments Nos. 36A and 36B, to Clause 45, also attempt to find a way forward. They take on board opposition amendments tabled in Committee and on Report in another place. They make it clear that jury tampering must be the primary cause of the jury discharge and that the judge, having discharged the jury, must make an order for the trial to continue without a jury only if he or she is,


    "satisfied that jury tampering has taken place".

Yesterday, in another place, the Opposition tabled amendments to Clauses 43 and 45, with the aim of further limiting the already restricted circumstances in which a juryless trial could take place, where there is tampering or the risk of it. I must confess that I share the puzzlement of my right honourable friend the Home Secretary about those amendments. They are not entirely logical.

19 Nov 2003 : Column 1965

The illogicality is apparent in the fact that they set a different test to be satisfied in respect of each clause. During yesterday's debate, Mr Dominic Grieve, the honourable Member for Beaconsfield, explained that that was because the test in respect of the risk of tampering should set a higher threshold than the test in Clause 45 for cases in which tampering has actually occurred. As the Government's amendments to Clause 43, I hope, make clear, evidence of jury tampering in a previous trial is, precisely, an example of the type of evidence that might be presented as evidence of a risk that jury tampering would take place. It also does not make sense to acknowledge the burden on the jury of police protection in one set of circumstances and disregard it in similar circumstances.

That condition addresses the question of whether we can reasonably expect members of the public to come forward and undergo the stress and anxiety of actual intimidation or a genuine fear of intimidation and the misery of round-the-clock surveillance over a lengthy period. Clearly, Her Majesty's loyal Opposition and others who sit opposite do not share our deep concern.

The amendments tabled by the Opposition in another place also ratchet up the interests of justice test in Clauses 43 and 45 to require there to be a "great" or "overwhelming" likelihood that jury tampering would take place notwithstanding any steps that might be taken to prevent it. I understand the concerns that underlie the amendments. It is our belief that the clauses already meet those concerns. If I can paraphrase what was said in the other place, I can assure Mr Grieve that they already require the court to make examinations in minute detail, before ordering that a trial be conducted or continued without a jury. In responding to that point, I invite the House to remember that Clause 43 draws on existing case law on jury protection applications, which requires the judge to order full police protection for the jury only where there is a real and present danger of jury tampering.

We cannot accept the Opposition's amendment to Clause 45, which would remove the judge's power to continue the trial alone, following discharge of the jury because of tampering. The amendment is based on concerns about the impartiality of the judge, who, having heard information that may be prejudicial to the defendant, goes on to sit as fact finder in the trial. However, I remind the House that judges routinely direct themselves to disregard prejudicial evidence. Having detailed knowledge of such information does not necessarily mean that the judge must automatically be considered prejudiced. Rather, the key question must be whether there are any ascertainable facts that would raise legitimate and objectively justified doubts about a judge's impartiality, and we are not convinced that in such cases, in general, there will be. I remind your Lordships that the judge will be able to do justice in such a situation, as he will have a discretion.

Of course, a judge who felt unable to take on a case because he or she feared that he or she would not be able to hear it with the requisite impartiality would not be obliged to do so. That established principle is already reflected in the Bill. I am sure that noble Lords will join me in expressing confidence in the ability of

19 Nov 2003 : Column 1966

the judge to exercise discretion in that way and to discharge himself or herself, if he or she feels that that would be in the interests of justice.

Several questions were asked about the way in which prosecution applications under Clause 43 would be made in circumstances involving sensitive information. The Government are confident that existing public interest immunity procedures are fair and effective and do not in any way endanger the rights of defendants. We are also confident that they will work equally well when used in the course of an application under Clause 43.

Moved, That the House do not insist on its Amendment No. 34 to which the Commons have disagreed and do agree with the Commons in their Amendments Nos. 34A and 34B to the words so restored to the Bill.—(Baroness Scotland of Asthal.)


Next Section Back to Table of Contents Lords Hansard Home Page