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Fraud (Trials without a Jury) Bill

My Lords, the noble Lord, Lord Brennan, has applied to his own speech his criteria of intelligibility, simplicity and attractive presentation. As Solicitor-General in 1986, I supported the then Government’s decision not to accept the recommendation of the majority of the Roskill committee that serious and complex fraud trials should be tried by a special fraud tribunal, consisting of a judge and a small number of a specially qualified lay members. I preferred to retain the jury system, and I still do. Perhaps it is right that I should begin by declaring that I have form. Like the noble Lord, Lord Carlile, I propose to leave to others the well recognised and, to my mind, compelling virtues of jury trial. I would otherwise be only repeating and no doubt spoiling what many others have said in that regard. I shall make only a single point, which is that this state of conflict which today’s debate has illustrated is no kind of background against which to introduce an important constitutional change, especially one which bears on our rights as citizens to be tried by our peers, and especially when so many innovations, sensibly and properly made by government and the judiciary in recent years, have yet to be proved and evaluated. In 2003, as we have been reminded, this was recognised by Mr Blunkett, the then Home Secretary. He showed this by inserting a provision into his Criminal Justice Bill that the clause giving effect to his policies—now Section 43—could come into force only if it was approved by resolution of both Houses using the affirmative procedure. Today, I want to suggest that the background is even less propitious for the kind of change that Section 43 would make. That is because many innovations have been put in place, whose purposes are to improve the arrangements for serious and complex fraud trials—indeed all serious and complex trials—the full effects of which have not yet had time to materialise. For example, the Fraud Act 2006 has been in force only since January this year. We should insist that sufficient time is given. Let me instance further the protocol introduced by the then Lord Chief Justice, the noble and learned Lord, Lord Woolf, on 22 March 2005, just two years ago. We were reminded of that today so I can make the point quickly. However, incidentally, the date that that was handed down by the learned judge was the date on which the Jubilee Line case trial was terminated to general consternation. The trial judge accepted that a fair trial was not possible because there had been such delays and interruptions. The new protocol, the noble Lord, Lord Carlisle, has said, is cited every day in the courts. In introducing it, the noble and learned Lord, Lord Woolf, said at the outset: "““Hitherto, a lack of case management has contributed to problems across the whole criminal justice system. Nowhere is this more evident than in the case of heavy fraud and other complex cases.””" Stating that it was designed primarily for jury trials, the noble and learned Lord said: "““It will ensure””—" he was referring to his protocol— "““that trials are conducted in a way that will enable juries to retain and assess the evidence which they have heard. The need for this is obvious.””" The noble and learned Lord, Lord Woolf, said that it was implicit in the protocol that trials of six months are not capable of satisfactory disposal save in exceptional circumstances, a point already made by the noble Lord, Lord Elystan-Morgan. He said that generally they ought not to be permitted to exceed three months and, to achieve that, the roles of the lead advocates for the prosecution and the defence team were clearly identified in the protocol. By reason of these and other directions on case management, enough time must now be given to see how they affect matters. We have been told that first indications are encouraging. As I have indicated, recent innovations do not stop there. Faced with the débâcle of the Jubilee Line, the Attorney-General sensibly commissioned an independent report from the Chief Inspector of the Crown Prosecution Service Inspectorate, Mr. Stephen Wooler. When this was published in June 2006, it was accorded much acclaim. Mr. Wooler wrote: "““Although the termination of the case was the direct result of its length, that in turn was attributable to a number of factors, some of which were clearly avoidable. In addition, the case was formulated in a manner which greatly added to its length and complexity.””" Crucially, for today’s debate, he added: "““Its circumstances were in reality so unusual that it cannot be relied on to support either position in that debate””." He was referring to the debate about the suitability of juries to try fraud cases and, in particular, the proposal to implement Section 43. In an Oral Statement made to this House on the day of publication, 27 June 2006—reported at cols. 1096 to 1099 of the Official Report—the noble and learned Lord the Attorney-General made it clear that he did not agree with that conclusion. He was at pains to explain, as he was entitled to do, that in 2003 he had agreed with the DPP a new approach to the management of serious and complex cases so as to enable greater input by lawyers into the most critical decisions faced by the service. Moreover, he said that the director had established a new system of case management panels—in operation only since September 2005—which were already demonstrating their worth by strengthening the presentation of cases, identifying any potential weaknesses and, in some cases, shortening the predicted trial lengths. Lastly, after referring to the protocol, the noble and learned Lord the Attorney-General said: "““These developments, combined with revised disclosure protocols and my own revised guidelines to prosecutors on disclosure, combine to make a very different system from that which was in operation during the Jubilee Line trial””.—[Official Report, 27/6/06; col. 1099.]" A very different system, a new system, a new approach, all these are admirable developments. Let us take time to evaluate them. Let us not heed tonight the ill-judged threat about the Parliament Act. Let us see what fruit these developments bear before we cut down an older and much prized tree as no longer fit for purpose.