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The key benefit of Section 43 provisions will be more efficient trials that enable the full criminality of cases to be exposed. A judge sitting alone will be able simply to read evidence that would have had to be presented orally to a jury. Arguments that would have

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to be set out at great length to a jury will be understood far more rapidly by a judge. A judge sitting alone would be less likely to require cases to be simplified or severed.

I want to emphasise this because it has been a matter of concern to the House: Section 43 is not a general assault on the principle of trial by jury; nor is it about choosing between a fair trial and an unfair trial. It is about choosing between modes of fair trial. I fully acknowledge that there are great advantages to trial by jury, which is why it is appropriate for the vast majority of Crown Court cases; but there are circumstances—very limited circumstances—involving a very small number of cases where the advantages are outweighed by the disadvantages. For these cases, the 2003 Act provides for non-jury trial in England and Wales and in Northern Ireland. One category is where there is a real danger of jury intimidation. That was accepted by the House, and the provision was brought into force last year.

The other category is serious and complex fraud cases. Other sorts of case can give rise to very long trials—terrorism, for example—but serious fraud cases are distinct in that even an enormously long trial may not, for the reasons I have given, ensure that justice is done. That is why we are seeking to implement this measure. I should like to make it clear—the question is bound to arise during the debate this afternoon—that the Government have no plans to extend juryless trials to any other categories of case.

Section 43 will affect only a tiny number of exceptionally long and complex serious fraud trials. It will ultimately be for the Lord Chief Justice and other judges making decisions in individual cases to determine how many non-jury trials will take place. Our expectation is that, out of around 28,000 contested cases heard by a jury each year, the number of cases qualifying for juryless trial under Section 43 may be only half a dozen and will certainly not exceed 15 to 20 cases. That means that over 99.9 per cent of current jury trials will be unaffected by these measures. In the minute number of cases that Section 43 addresses, there exists an unacceptably high burden on the public, the public purse and the jurors.

Noble Lords will recall that, when Section 43 was passed, its implementation was made subject to a requirement for an affirmative resolution of both Houses. This unusual step constituted a guarantee from the Government to undertake further consultation. In accordance with that guarantee—

Lord Carlile of Berriew: My Lords, I apologise to the noble and learned Lord for interrupting, but while he is dealing with statistics, could he tell the House what percentage of SFO prosecutions he expects to be dealt with without a jury if this Bill becomes law?

Lord Goldsmith: My Lords, the SFO deals with something like 90 cases each year. I have indicated that the best estimate of the number of cases that will be tried without a jury is something like six. Those will probably be predominantly SFO cases, so it will

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be whatever percentage six out of 90 or 100 is: 6 or 7 per cent. I am always greatly assisted by the Benches behind me—in arithmetic and, I hope in other matters as well.

In accordance with the guarantee of further discussion, we made several attempts to seek a way forward in 2005-06. There was a seminar attended by members of the Opposition, including the noble Lord, Lord Kingsland, members of the senior judiciary and representatives of prosecuting authorities and the professional organisations. Although no clear agreement emerged, there was unanimous agreement on the need to change the way serious and complex fraud cases are heard. We then sought an affirmative resolution, which was passed in the other place. It became apparent, however, that it would not be passed in this House. At that point we again sought consensus, by opening further discussions with the Opposition on the basis that the Fraud Bill, which was then before Parliament, could be used to make modifications to Section 43 that might be acceptable to all sides. Again, no agreement was forthcoming.

The Government have always signalled their intention to give effect to the provisions of Section 43. The inclusion of the requirement for an affirmative resolution was never intended to constitute a permanent obstacle to the introduction of juryless trials; if so, there would have been no point in enacting the provisions. The failure to reach consensus on a way forward left the Government in the unfortunate position of having to introduce fresh legislation to give effect to the provisions of Section 43. We remain resolute in our belief that Section 43 is necessary. We hope that the House, having considered our arguments, will conclude that it would be inappropriate not to allow this to occur.

The noble Lord, Lord Kingsland, has tabled an amendment that, if passed, would result in this Bill being rejected now. I need not remind noble Lords how unusual it is for that step to be taken on Second Reading in this House. It would not, however, be inappropriate to remind the House that when the order for commencing Section 43 was passed in another place, noble Lords opposite intended to block it in this House until the matter had been considered in primary legislation. The approval Motion in this House had to be withdrawn. The clear implication was that noble Lords opposite wished to engage in debate in the context of primary legislation. When negotiations that were carried out during the parliamentary process before the Bill came to nothing, I announced that we would not bring back another order but would introduce primary legislation. This Bill is the result: it gives further opportunity for the debate that noble Lords opposite made clear they wanted to engage in. At least, that is what we understood. It is surprising, then, that having tabled amendments in another place, the opposition parties do not wish to pursue them further.

We said in our manifesto that we would overhaul laws on fraud and the way that fraud trials are conducted to update them for the 21st century and make them quicker and more effective. We have listened to the views of this House on more than one occasion. We have debated, consulted and twice taken back this issue for further discussion and to consider amendments. We have held many meetings with

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Opposition Members to see if there is a way forward. The Government, having listened and made those attempts, are committed to this Bill. It will be no surprise to anybody, therefore, for me to make plain that this Bill, if rejected today, will be reintroduced next Session, with a view to using the Parliament Acts.

If, therefore, the Bill is rejected today, as my noble friend Lord Clinton-Davis in his question made clear, your Lordships will be deprived of any opportunity to modify the contents of the Bill. I cannot guarantee, of course, that any particular amendments that your Lordships might want to make to the Bill would ultimately be accepted. However, I can guarantee that if this House summarily rejects the Bill the opportunity for such amendment disappears and the Bill that will be brought back in the next Session will be the Bill in its present form. I commend the Bill to the House.

Moved, That the Bill be now read a second time.—(Lord Goldsmith.)

3.30 pm

Lord Kingsland rose to move, as an amendment to the Motion that the Bill be now read a second time, to leave out “now” and at end insert “this day six months”.

The noble Lord said: My Lords, I thank the noble and learned Lord the Attorney-General for the measured and dispassionate way in which he presented his case. This is often a highly emotional subject, and I am very grateful to him for outlining the history of the measure and treating the issues involved very carefully and thoroughly.

I would not wish the noble and learned Lord the Attorney-General to think that we in the Opposition in any way underrate the importance of the fight against fraud. We attach the utmost seriousness to this battle and we applaud many of the things that the Government have done in recent years to improve society’s position in relation to the fraudster—most particularly the recent Fraud Act, which redefines fraud in a way that I trust will be much more effective in achieving what the noble and learned Lord described as justice in the courts.

The noble and learned Lord the Attorney-General finished his observations by addressing the Opposition’s amendment. It is true that we seek to defeat this Bill at Second Reading. The commitment to change the rules about jury trial did not appear in the manifesto, so we are not bound by a constitutional convention not to so act. But that is not the main reason why we have chosen to take this course.

As the noble and learned Lord said, under Section 43 of the Criminal Justice Act 2003, before the substance of the change to jury trial can be implemented, an affirmative resolution must be passed in this House. That affirmative resolution could not be amended by your Lordships; it would either be yes or no. The noble and learned Lord took the view that, at the end of the day, your Lordships would say no; he therefore chose not to introduce a resolution under Section 43 but to introduce primary legislation. The reason why

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we are seeking to divide on Second Reading is that we feel that we are in exactly the same position as we would have been had an affirmative resolution been tabled.

Lord Goldsmith: My Lords, will the noble Lord confirm that on at least two occasions at the time when that order was presented to the House, and during the passage of the Fraud Bill, he, on behalf of the Opposition, made it clear that they wanted to engage in debate on the details in the context of primary legislation? If that was the position that they took then, why is he now suggesting that actually all that they ever wanted to do was simply to vote yes or no to this provision?

Lord Kingsland: My Lords, that is not the point that I am seeking to make. An affirmative resolution would give us only the opportunity to say yes or no; it would not give us the opportunity to amend. The position under this Bill is thus no different from that which would have been the case under an affirmative resolution.

Our case is quite simple: we oppose the principle of resiling from jury trial in all serious criminal cases. The noble and learned Lord suggests that we might have amended it; the Opposition actually sought to amend it in another place, where every single amendment that we tabled was rejected.

Lord Clinton-Davis: My Lords, is it not very usual for this House to take a different view from another place in Committee, on Report or even at Third Reading? Why, then, can the Opposition not agree to allow the Bill to proceed at this time and amend it in the appropriate way?

Lord Kingsland: For two reasons, my Lords: first, because the Opposition are, ultimately, opposed to the principle of changing the rules about jury trials in criminal cases; and, secondly, because the reaction of the Government during the Commons stages resulted in us having no prospect of any amendments that we might have tabled being accepted in any event. For both those reasons, we have chosen to table today’s amendment in your Lordships’ House.

On the substance of the matter, as your Lordships are well aware, jury trial has been a central component in the conduct of all serious criminal trials for about the past 700 years. Its contribution to the preservation of the liberty of the individual, and to the legitimacy of Government, is quite incalculable. In particular, it is not the state but the community and individuals within it that determine who is responsible for depriving individuals of their liberty. This process has been endorsed by each generation for all of those centuries; so it will require some very cogent evidence and powerful arguments to convince us that the system needs changing. We submit that the Government have simply not produced them.

There are a number of reasons for getting rid of jury trial, or modifying it, that might reasonably be argued. One is the question of the length of fraud trials, which are expensive and take a long time. Would

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the measure proposed by the Government make them any shorter? Well, the answer is no. When the noble and learned Lord and I attended a seminar in January 2005, arranged by his department, the now Lord Chief Justice—then Master of the Rolls—was a participant. The noble and learned Lord, Lord Goldsmith, will recall the noble and learned Lord, Lord Phillips of Worth Matravers, saying in terms, as Master of the Rolls, that switching from jury trial to trial by judge alone in long and complicated fraud trials would not shorten them.

Indeed, if the noble and learned Lord, Lord Goldsmith, were to read the Second Reading speech of the Solicitor-General on this Bill in another place, he would have seen that the Solicitor-General adduced, as an important component of the Government’s thinking, the fact that they want the opportunity to present what the honourable gentleman described as “the full criminality” of the accusedto the court. He suggested that this would be much easier to do in front of a judge sitting alone than in front of a judge with a jury.

I shall later question whether that is true. However, more immediately, my understanding of the problem that the Serious Fraud Office faces is not whether it can represent the full criminality but whether it can secure a conviction at all. That issue in no way calls into question the jury principle—unless of course the Government are going to suggest that it is easier to secure a conviction in front of a single judge than it is in front of judge and a jury. Nothing in the Solicitor-General’s proposal will shorten fraud trials. If anything, it will lengthen them because much more evidence will be put in front of a single judge than in front of a judge and jury, and no money whatever will be saved.

The second suggestion is that juries are not capable of understanding the complexities of fraud trials. This has been firmly disproved by the outcome of the Jubilee Line case. Your Lordships will remember the debate in this House of the report by Mr Stephen Wooler, Her Majesty’s Chief Inspector of the Crown Prosecution Service, after the breakdown of the Jubilee Line case. All the jurors were interviewed many months after the trial broke down. A special study was conducted by Professor Sally Lloyd-Bostock of the University of Birmingham. The conclusion drawn by Mr Wooler and Professor Lloyd-Bostock was that the jury had a very firm grasp of a large number of extremely complicated issues, even after seven or eight months and without referring to any documents whatever to refresh their memories. Indeed, the Solicitor-General went out of his way in another place to say that the Government were not contending that the jury was not capable of understanding complex cases. I am at a loss to know why the Government have continued to use the word “complex” in the standard laid down in Section 43 if what the Solicitor-General said in another place not so long ago continues to be government policy.

If the trials are not going to be any shorter, and if a jury is perfectly capable of understanding all the complexities of the evidence presented, what argument is left to the Government? The Government have said that the real problem is that these trials are too burdensome

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for the jury, and use a number of criteria to explain this, including the disruption of family life. However, many other sorts of trials are also long and complex. There are health and safety trials, narcotics trials, many trials relating to child abuse and terrorism trials. Many of these trials are equally lengthy and equally complicated, and often involve vast amounts of documentary evidence. What is the difference between a long and complicated fraud trial and a long and complicated trial of many other issues? I suggest that there is no difference whatever; so how long will it be before the Government come up with another Bill dealing with another section of criminal law in which it is alleged that a jury is simply incapable of understanding the matters, or that the matters are far too burdensome for a jury to get to grips with?

One of the things that most concern the Opposition is that we are being presented with the thin end of the wedge. If we allow the Bill to go to Committee and to make its way through the House, and if it ultimately gets on to the statute book, this will then set a precedent for removing juries from other cases; and that would be quite unacceptable. It was also suggested in another place that juries are in some way unrepresentative. It is true that on long trials quite often the composition of the jury is made up of perhaps a disproportionately large number of ladies and retired or temporarily unemployed people. But that is true for all long trials, not just for trials for fraud. Moreover, whatever the composition of a jury, it is likely to be far more representative than the judge alone.

Perhaps I may draw your Lordships’ attention to what it would be like for a single judge to try a case like this. In any jury trial, the jury sees only admissible evidence. A great deal of evidence is brought before the judge by the prosecution asking for it to be admitted into the trial. The judge reads that evidence and considers whether it is admissible. If it is inadmissible the jury does not see it. I am thinking particularly of hearsay, confessions or propensity evidence. But if the judge is not only the judge of law but also the judge of fact, in a single-judge case, he will have to read all the evidence. He will see all the evidence which he, for one reason or another, goes on to declare inadmissible. I am not suggesting that the judge is not capable of divorcing inadmissible evidence from admissible evidence, but in some cases it may be very difficult. However, the perception of the public will be that he cannot.

In another passage in the debate in another place, the honourable gentleman the Solicitor-General suggested that one way to shorten a trial would be for the judge to read himself into the case so that it would not be necessary for what he read to appear before the court. That is a quite unacceptable proposition. A cardinal feature of trials in front of a jury is that the defence has an opportunity to cross-examine all the evidence put against his client. But if the honourable gentleman—

Lord Thomas of Gresford: My Lords, does the noble Lord agree that it goes further than he says? If a public interest immunity application has to be made to the trial judge, he will see evidence which the defence never see.

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Lord Kingsland: My Lords, the noble Lord, Lord Thomas, has taken my argument one step further by raising the very difficult issue of public interest. As he rightly says, much or all of the evidence put before the prosecution is never revealed to the defence. There is no sign of the Government having grappled with this issue.

Lord Goldsmith: My Lords, given the fraternal exchange between the Liberal Democrat Benches and the noble Lord, is the noble Lord aware of how this problem is dealt with in Northern Ireland where there are many trials without juries and where a different judge deals with disclosure and PII applications? Is he aware of that experience and the general high regard in which judges in Northern Ireland are held, and that trials tried in Diplock courts are universally regarded as fair?

Lord Kingsland: My Lords, I am indeed aware of what happens in Diplock courts. It is usual to bring in a second judge to deal with that problem, but, as the noble and learned Lord knows full well, it is the duty of a judge throughout a trial to keep this matter under review. It is extremely difficult to have a second High Court judge on hand all the way through a fraud trial, which might last for many months or even years, to constantly check these issues.

Moreover, as the noble and learned Lord is also well aware, we hope that very soon it will be possible to restore trial by jury in Northern Ireland. I do not think that an example taken from terrorist cases in a situation which is extremely special, if not unique, ought to be an argument against the propositions that I am putting forward about the difficulty of trial by a single judge.

I am aware that I have taken up a great deal of your Lordships’ time in putting the Opposition's case. In our view, the way forward is to let the various measures that the Government have quite sensibly put in place take their course. We do not know yet what the effect of the Fraud Act will be. As the noble and learned Lord knows, I regret the fact that the Government have retained the common law offence of conspiracy to defraud because there is certainly evidence from the Jubilee Line case that that vastly over-complicates all the issues without, in the words of Mr Wooler, adding anything at all to the type of sentence that would have been imposed had the trial turned out differently.

The noble and learned Lord has also drawn our attention to the protocol of the Lord Chief Justice, as he then was—the noble and learned Lord, Lord Woolf. This is an extremely helpful and constructive document. Essentially, it would require all the admissibility issues to be dealt with before the jury was impanelled. If properly implemented, that would make an enormous difference to the expedition of trial by jury. Then the noble and learned Lord referred us to the inter-departmental analysis that has been conducted and reminded us it has been out to consultation. We look forward to seeing the results of that.

A number of measures are on foot at the moment that may well achieve the result that the noble and learned Lord is looking for; but the issue of jury trial

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goes beyond the issue of fraud. It is a crucial component of our constitution. It is one of the most important guarantees, together with habeas corpus, of the liberty of the individual. We should be extremely slow and wary of calling it into question let alone abandoning it in one particular form of criminal trial. Of course fraud is difficult to prosecute; but that is no reason why the citizen should be deprived of this fundamental constitutional guarantee which has been with him the centuries. I beg to move.

Moved, as an amendment to the Motion that the Bill be now read a second time, to leave out “now” and at end insert “this day six months”.—(Lord Kingsland.)

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