| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Fairly recently the National Criminal Intelligence Service estimated that United Kingdom organised crime gets as much money from fraud as it does from drugs. I am therefore seriously concerned about the problem. However, I do not see anything in the Bill to suggest that my noble and learned friend the Attorney-General is engaging in a general, or even significant, attack on jury trials. To hear the rising rhetoric of some speakers in this debate, one would imagine that this is a full-frontal attack on every civil liberty that has existed for the past 700 years. I do not see it that way, nor do I believe that jury trials are a prerequisite for justice to be dispensed. Day by day across the UK,
20 Mar 2007 : Column 1185
“Every day, in criminal courts across the country, people elect in either-way cases to allow district judges—judges sitting alone—to decide guilt or innocence in trials ... Someone who gets arrested for benefit fraud and charged with a deception can be tried by a judge sitting alone, so it surely cannot be said that a senior judge sitting alone could not do justice in the case of someone arrested for a serious white collar crime”.—[Official Report, Commons, 29/11/06; col. 1097.]
I listened with interest to the noble Lord, Lord Maclennan, waxing eloquent about our freedoms and liberties, which he equated with jury trials. I do not believe that he enjoys an unfettered right to them north of the Border, but are we going to conclude from that that people north of the Border have lost all their liberties and do not enjoy any of the freedoms we have? Of course we are not. It is a preposterous notion.
Anyone can complain about all sorts of things, but nobody can properly complain about the length of the consultation process in relation to trial without juries in cases such as these. If there were to be any complaint, one could say that the consultation process, which has taken place over two decades, has, if anything, been far too lengthy. We heard about Lord Roskill’s fraud trials committee. It recommended that complex trials be held before special fraud tribunals made up of a judge and specially qualified lay people rather than before a jury. I understand that the 1998 consultation paper, Juries in Serious Fraud Trials, elicited a majority response favouring replacing juries in serious and complex fraud trials. We have heard several times that, in 2001, Lord Justice Auld reviewed criminal courts in England and Wales. He reported on the benefits of trial by a single judge and concluded in favour of a tribunal comprised of a judge and people with business and financial experience. The Government held a general consultation on the Auld report. When they published their White Paper, Justice for All, in 2001, they decided in favour of trials by judges alone. In the special circumstances of the very small number of long, complex and serious fraud cases each year, I am persuaded of the merit of trial without a jury. However, I can see merit in a judge being assisted by perhaps two assessors with business and financial experience. If my noble and learned friend the Attorney-General is really set against that, I hope we will hear his arguments in his reply so that we can examine his reasoning fairly closely.
The facts are clear. There were some 28,000 contested jury trials in 2005 and about 30,000 last year yet, during the debate in the House of Commons, Mike O’Brien, the Solicitor-General, replied with great clarity to a question from Mr Dominic Grieve about how many cases were affected by the provisions of the Bill. He said:
- “our estimate is that the number will be between half a dozen—that is the more likely figure—and 15 to 20 cases”.—[Official Report, Commons, 29/11/06; col. 1090.].
I believe that justice is well served by this modest measure. Considering the size of the problem, it is perhaps too modest. My noble and learned friend quoted what Lord Justice Auld said in his report and
20 Mar 2007 : Column 1186
Particularly in the light of last week’s votes in favour of an appointed House, I caution this House against the amendment moved by the Opposition. For an appointed House that claims to recognise the primacy of the House of Commons to deny the Bill a Second Reading is to play with fire. The Criminal Justice Act 2003 has been passed. Section 43 of that Act, which requires an affirmative resolution, allows serious and complex fraud cases to be tried without a jury in closely defined circumstances. If this Bill were enacted in response to demands from the Opposition, the Government could implement Section 43, as amended, without the need for further parliamentary proceedings. The Bill received a Second Reading in the Commons by a substantial majority. On Report, the Government secured substantial majorities. The Bill was read a third time. To defy the Commons by denying the Bill a Second Reading and a Committee in which amendments can be discussed is dangerous in the light of our vote on composition. I remind the House that the report of the Joint Committee on Conventions was approved by both Houses. I shall quote three short sentences from its conclusions:
“We do not recommend any attempt to define a manifesto Bill ... We recommend that in future the Convention be described as the Government Bill Convention”—
“In addition the evidence points to the emergence in recent years of a practice that the House of Lords will usually give a Second Reading to any government Bill, whether based on the manifesto or not”.
This House and the other place approved that report on conventions as the basis of a common understanding about how we go forward in relation to reform of your Lordships’ House. If we were serious in the vote last week, we take the step of voting against a Second Reading at our peril.
6.09 pm
Lord James of Blackheath: My Lords, as sensibly prompted by the noble Baroness, Lady Mallalieu, I shall not start by saying that I am not a lawyer. However, I have had great experience of using the jury system in fraud cases, and it might be helpful to have some practical experience of what that has meant. Over the past 25 years, I have been the chairman of 11 public companies.
At the time that they came into my hands, those 11 companies had been recording aggregate shareholder fund losses of just on £2 billion, despite the aggregate value of the frauds against them probably coming out at only half a billion pounds. The emphasis of this is that frauds of this nature are frauds against a whole community. The community affected is not only the people who work in the companies and the shareholders and pension funds around them, but also the traders who are creditors awaiting payment and who will
20 Mar 2007 : Column 1187
Of the 11 public companies that I have had in my hands, we took fraud proceedings against the chairmen of four—chairmen who had immediately preceded me. Every one of them was judged guilty by a jury and received a significant custodial sentence. There would have been a fifth charge but the individual concerned died before the charges could be brought. He thereby had presumably opted for trial by a single judge in a higher court. I am sure that he got justice there as he would have done in the jury system here.
I am a very satisfied customer of the jury system. On arriving in your Lordships’ House eight months ago I was delighted to find an old friend of mine in the noble Lord, Lord Dear, who was the Chief Constable of West Midlands when I was heavily engaged in that territory. Without doubt, the noble Lord, Lord Dear, ran the best fraud investigation unit that I have ever seen. There are lessons in how he was doing it to which the Home Office should listen, and either prompt him to run a training course for all the other constabularies around the country or get him to write the definitive textbook on the subject. He was absolutely outstanding.
It is worth considering what he did that made life so much easier for the juries. His CID team would never take a case on for investigation unless you could prove to the team, as though you were the investigating officers, that there was a fraud. Effectively, you had to go through a mock trial and prove it. Once the team had got into the deal and had taken it on board, it was the only constabulary I ever knew that produced a data room on every bit of evidence that came up. It was the pioneer in doing that electronically. The data could be available to the counsel when the case was being prepared for court. That was a missive simplification of the process. That meant that it could also bring in the legal team that would run the prosecution a great deal earlier than would normally be the case. In this way, we managed to get through some extraordinarily complex cases.
I remember we had one where the chairman of the company concerned had devised 52 different methods of removing money from a company in one year. This was very complicated. We managed to get completely separate data to show all the various methods. When the case went to court, the prosecution started not at the biggest end—the £600,000 single take—but on a single £700 item. The evidence was incontrovertible. The chairman had written to a lady saying, “You give me an invoice for £700, I’ll send you a cheque for £700, you give me £500 back and you can keep the other £200”. On that straightforward matter the jury started off knowing the exact nature of what it was dealing with. Thereon, the prosecuting counsel was able to build up all 52 cases, right up to the £1.2 million which had gone missing. At that time, the West Midlands approach was very advanced. I do not know how many others do it today.
20 Mar 2007 : Column 1188
I would like to illustrate the nature of the juries that we dealt with in those days. One of the cases turned out to be the longest continuous trial in British criminal history. By continuous trial, I mean it sat every working day for 16 months. It was in Wolverhampton Crown Court, ending in April 1993 with a conviction. The judge in that case complained about the deliberate attempts of the defending counsel to confuse the court and the defending counsel was subsequently suspended from practising. The jury still managed to get through the case every day and follow it.
Each of those cases had a majority of ladies on the jury. I am a great supporter of housewives as jurors. They are absolutely wonderful. We overlook certain factors about them. I hope that the Government are not implying a lack of confidence in the British housewife as a juror because I think that she is excellent. It would be a gratuitous insult to that fine body of women if the Government meant that. Many of them are highly qualified in their own right; they have frequently worked as analysts or secretaries with the boards of companies which have had troubles. They know where bodies get buried in boardrooms and are expert in knowing where to look and what questions to ask.
I have doubts about jurors who have not had the experience of working in industry. If they are 20 or 21 years old and have never worked, have come straight from university or whatever, there is a problem. They lack the experience and understanding of what goes on and how business is run. I would exclude them if there could be positive discrimination against them.
The point was made earlier about the difficulty in getting senior businessmen to be available for big trials. I do not think we want them. In the main, they come from the same community as the people who are being tried and have moved in the same circles, but they are not necessarily the right people to act for that community. Therefore they are not desirable jurors. Give me a jury of 12 housewives and I would be delighted.
I am familiar with the arguments against the jury, but it is the guarantee of trial by a community of a crime against a community. There is no reason whatever to disrupt that well tried process. There are certain things which could and should be done for the future to make jury trial more effective. We should follow the wonderful example of Southwark Crown Court, which has got the most definitive fraud-compatible courtroom anywhere in the country. It has a most accessible database which can be distributed to every member of the jury simultaneously. That is a wonderful facility and we need more of them up and down the country, please. Some consideration should be given to positive discrimination to exclude youths who have not worked, and we should not worry about an imbalance of too many women on a jury because it would work well. In particular, the jury system in this country should not lead us to worry about the time it takes to get a case heard. We have had talk about three months as a maximum. I have never had such a case running for less than six months, and we have never failed in getting everybody’s clear understanding.
20 Mar 2007 : Column 1189
The most impressive act I ever saw was the only jury acquittal I ever had. That is the last issue I will deal with. I suspect that this acquittal would not have happened if a judge had been sitting in isolation. In the extremely complex case, we had a very dominant, bully-boy chairman. He had a finance director working for him who thought that the chairman was God Almighty, and he would do anything for him. The finance director was a sad case; his wife had left him, his mother was dying and he was her only support. He had nothing in his life other than the joy of going to work each day and doing whatever his beloved chairman told him to do. What he told him to do was steal £1 million for him. I did not want that finance director put into court. The noble Lord, Lord Dear, and his colleagues, on the only occasion that we ever had serious disagreement, put him up on a charge. I thought that this was going to be terrible; they are going to send him down, he is going to die and it is wrong. He had not taken any money, he had no inflated salary and it would not have been just. The jury convicted the chairman and acquitted the finance director. Had that gone before a judge in isolation, I suspect that they would have had to convict the finance director as well. He might only have got a suspended sentence, but there would not have been the humanity and the insight that the jury was prepared to bring. It was a remarkable case.
If this Bill goes through, I will never be able to look at the image of Magna Carta hanging on our walls again. This will cut the heart out of it and will be the start of the destruction of our liberties in this country. We talk of not having a written constitution but we do; it is hanging on the wall outside.
6.19 pm
Lord Brooke of Alverthorpe: My Lords, the principal charge against the Bill is that it attacks the foundation stone of British justice: the jury trial. I must confess that I am somewhat mystified by some of the arguments that run along those lines. Like my noble friend Lord Rosser, I note that the British legal system considers very many crimes to be best tried without a jury. It was not so long ago that a drink-driving charge could be tried by jury until it was decided, under a Conservative Government, that that was impractical. Let us take the case of a man getting drunk, taking a car without consent and assaulting the police officer who apprehends him. Parliament has now agreed that the serious offences involved—taking a vehicle without the owner’s consent, assaulting a police officer and drink-driving—are ones that only magistrates can try. I do not hear calls to return such cases to jury trials, so I assume that we believe that justice is being served.
We often hear that the Crown Court is generally reserved for more serious cases, and we reserve jury trial for those cases. I am sure that many here would rather be defrauded than assaulted, so I am not sure on what basis we decide that fraud is more serious than theft and assault. Rather than being serious, fraud is a more complex and difficult charge to pursue and prosecute, and it cannot be dealt with in the same
20 Mar 2007 : Column 1190
Parliament has long had the power to change the categories of offences which are subject to jury trial, and, as life and society change, it makes changes when they are needed to improve the likelihood of justice being achieved. I believe that that deals with the “slippery slope” argument. Can my noble and learned friend say whether I am right in asserting that a whole raft of offences which were previously subject to trial by jury are no longer so?
I take pride in speaking not as a lawyer but as near as possible as a member of the public. I sense that the public are not convinced that in serious fraud cases the guilty are always convicted and the innocent freed. Rather like my noble friend Lady Mallalieu, I believe that in general the public have confidence in juries but not always. For example, if comedians are prosecuted for tax frauds, I believe they stand a better chance of getting off in Liverpool than they do in Birmingham. I can give many other examples where, from time to time, juries have reached perverse decisions and judgments. In fraud cases, I observe as a member of the public that the minnows seem to get caught, but I perceive that an abnormally high number of serious fraud cases fail, and I believe that there is public concern about that.
The noble Lord, Lord Kingsland, asserts that his party is not soft on fraud trials. However, a problem in dealing with fraud trials was identified as long as 22 years ago, when his party was in power and turned its attention to the matter. I think that most speakers today have accepted that there is still an unresolved problem and I have heard a range of options advanced as solutions. Many involve saying, “Let’s just wait a little bit longer until we see how that works as time passes”, or, “Let’s wait a bit longer for another piece of legislation to work its way through”. If we were to move on not 22 years but 24, 26 or even 28, I suspect that most people in this House would be prepared to let the issue run along those lines. However, I do not believe that, if the public were tested, they would be willing to go along with that. They sense that something is wrong and that it needs to be put right. Given the way in which the Government have presented their case and have been turned back on several occasions, I do not think that our Front Bench is being soft on serious fraud cases; it has put forward a pretty compelling argument for change in respect of juries and I believe that the public will support it.
It seems to me that the major issue is not the length of the trial or, indeed, the ability of some juries to cope with the issues put before them; it is that the full criminality of fraud is not exposed because of the complexity of cases these days and the inability to present the facts to juries clearly and concisely. That was a strong point advanced by my noble and learned friend the Attorney-General, but—I was listening carefully—I did not hear the noble Lord, Lord Kingsland, respond to it convincingly. Perhaps I am being unfair but I should be grateful if the noble Lord would return to that point.
20 Mar 2007 : Column 1191
Lord Kingsland: My Lords, is the noble Lord referring to the full detail of the case against the accused? Is that the point to which he is saying I did not respond?
Lord Brooke of Alverthorpe: My Lords, I was referring to the range of charges which the prosecution believes it could run but, because it has to present the case orally and go into complex areas which move the focus away from what it sees as the principal arguments, the totality of the case is not advanced.
Lord Kingsland: My Lords, I recall that I did deal with that. My point is simply this: if the Government accept, as they have done, that a jury is perfectly capable of dealing with all the complexities, there is no reason why a fraud case cannot be put to a jury.
Lord Brooke of Alverthorpe: My Lords, as I grasped the point advanced by my noble and learned friend the Attorney-General, my understanding is that all the points are not presented to a jury because of the difficulty of getting them across.
I shall move on as this has been a long debate. I will not go over all the points that I had intended to make, as many of them were covered by my noble friend Lord Tomlinson and I do not intend to repeat them, but I shall conclude with his final point about the role of the House in dealing with issues of this nature.
My noble friend referred to the debate last week and mentioned the possible consequences of the Opposition, supported by the Liberal Democrats, moving their amendment and the way that that would be perceived by the Commons. He warned that in due course it could have an adverse effect for this House. I come from an entirely different angle. My noble friend is in favour of a fully appointed House; I am in favour of an elected one. Last week, I argued that this House already has substantial powers—powers of such enormity that, in my opinion, from time to time they should be subject to the consent of the people through elections. I believe that the debate today completely bears out that argument. A totally unelected, appointed House is flying in the face of what the elected Members in the other place perceive to be the correct way forward. We should think long and hard before we decide to wreck, in the way that is being proposed, legislation that has gone through the other place.
6.30 pm
Lord Thomas of Gresford: 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”.
20 Mar 2007 : Column 1192
| Next Section | Back to Table of Contents | Lords Hansard Home Page |