Order for Second Reading read.
I beg to move, That the Bill be now read a Second time.
I welcome to yet another debate on this issue many of the aficionados who attended the previous debates. I am sure that we will cover much of the same territory, important as it is.
Fraud does enormous damage to our national economy and the Government are determined to modernise our criminal justice system to tackle it. Our policy has four main strands. We recently took through the House the Fraud Act 2006, which will create a statutory offence of fraud and modernise much of our law on deception. Secondly, the Government have also carried out a cross-departmental review of fraud to examine the prevention, detection, investigation, prosecution and punishment of fraud. We published a report in July, and consultation finished on 27 October. We are now considering our response.
Thirdly, new protocols and procedures for our courts have been introduced by the prosecution authorities, the Attorney-General, the Lord Chief Justice and others to improve the management of large criminal cases. The Bill is the fourth element. It will reform our criminal justice system to enable it more effectively to try a small number of serious and complex frauds without a jury.
In just a moment.
Fraud takes many forms. It can be complex—international fraud, involving vast sums of money, can be committed by bankers, accountants, con men and even lawyers. The evidence can run to thousands of documents. Alternatively, the fraud can be on a smaller scale—benefit fraud is an obvious example. Our criminal justice system prosecutes benefit and minor fraud with efficiency, but it has found it more difficult to prosecute complex and serious white-collar fraud. Complex cases can last a year or more. Although the success of the Serious Fraud Office means that convictions are secured, contested trials can be long-drawn-out and difficult.
I shall give way in a moment.
The Government believe that the criminal justice system needs to be as effective at dealing with complex white-collar fraudsters as it is at tackling blue-collar fraud. As part of our wider package of policies, this Bill will help to ensure that that happens. I give way to the hon. Member for Shipley (Philip Davies).
It is not our case that jurors are not clever enough to understand complex fraud cases. That is a straw man that the Opposition seem to put up each time we debate this issue. That is not our claim. I want to go into the matter of jurors, but the point that the hon. Gentleman makes does not reflect our approach to this issue.
Complex and serious fraud cases have been a particular problem in the courts for a long time. Murder cases, by and large, can be resolved relatively quickly and the issues are often very straightforward. Complex and serious fraud cases are an entirely different matter, with cases lasting for six months, a year or more, having multiple defendants and involving the discussion of complex issues. We want to ensure that we tackle those issues in a sensible and straightforward way.
Although I have reservations about this measure, I will vote for it on Second Reading. My great concern, however, is that if this measure is carried into law, as it probably will be, it should not escalate into a situation where jurors will not be used in other criminal cases.
If I understand my hon. Friend correctly, he wants to know if there is any wish by the Government to extend the provision to a range of other cases, and the answer is that there are no plans to do so. It is our view that there is a long history of problems in this area of law.
For many years, there have been calls for serious and complex fraud trials to be conducted by judges. Back in 1986, the influential Roskill report recommended that these cases should be tried by a special fraud tribunal, consisting of a judge and a small number of specially qualified lay members instead of a jury. In 1998, most respondents to a consultation paper, “Juries and serious fraud trials”, broadly supported replacing the jury in serious and complex fraud trials. In October 2001, Lord Justice Auld considered the issue in his review of the criminal justice courts in England and Wales. He recognised the benefits of trial by a single judge but suggested instead a tribunal that included people with business and financial experience.
The Government sought views on the issue in a general consultation on the Auld report following the publication of our White Paper “Justice for All”, and after taking account of comments decided in favour of judge-alone trials.
My hon. and learned Friend mentioned the extensive protocol to deal with long fraud cases that came into effect on 27 March last year. One of its effects undoubtedly will be that most of the issues that lengthen these cases will be tried before a jury has even been empanelled. That protocol has been in effect for just over a year. Why did not the Government wait to see the effect of that before they introduced the Bill?
When Roskill made recommendations, the view taken by the Government at the time was that new legislation—setting up the Serious Fraud Office—and a number of other steps would deal with the problem of serious and complex fraud cases. They thought that they did not have to make the change recommended by Roskill. In the past two decades, experience has shown that although such administrative changes are welcome and have the effect of speeding up trials, they are in themselves insufficient to deal with the overall problem. The Government’s view, therefore, is that section 43 of the Criminal Justice Act 2003 is the way forward. It will ensure that we deal with such cases more effectively.
I am still dealing with the question asked by my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews), and after that I must give way to the hon. Member for Beaconsfield (Mr. Grieve).
To continue, we welcome the protocol, which is an important way of speeding up some of the handling of more lengthy and complex cases, but our view is that it is insufficient of itself.
Will the Solicitor-General confirm that the number of cases per annum that will be covered by the provision is tiny? The figure given was half a dozen or so. Given that we have a new protocol and the new Fraud Act 2006, which is supposed to simplify the trial of fraud, and given that—as I am sure he accepts—many trials, such as health and safety cases, now require juries to consider massive amounts of technical documentation, why have the Government singled out that discrete area to get rid of juries? Why would they do so, unless the measure is to be the first foot in the door for a much more general attack on the jury system?
First, the measure is not the first foot in the door, as the hon. Gentleman put it—far from it—and it is not a general attack; that is complete nonsense. However, he is right to say that it will affect only a small number of cases. The figure is variously estimated, but it is certainly put at fewer than 20. The Serious Fraud Office considered the number of cases over the past five years that lasted longer than six months and, of those 26 cases, only about six lasted more than a year. It believes that, under its way of handling the issue, about six cases a year would probably be affected by the measure. I do not want to be tied to a particular figure because, as the hon. Gentleman knows well, in the end it will be a decision for the Lord Chief Justice and those making the decision in individual cases. However, our estimate is that the number will be between half a dozen—that is the more likely figure—and 15 to 20 cases.
May I just answer the question posed by the hon. Member for Beaconsfield? I shall then give way to some others. We want to ensure that 99.9 per cent., or 28,000, cases tried in the Crown court will continue to be tried by a jury. The number of cases affected by the change will be tiny, compared with the 28,000 contested cases that are tried before juries in the Crown court each year. It is worth making that point.
The Solicitor-General continually says that experience has shown that juries should be got rid of, but today he has not shown—and the Government have not shown to date—how getting rid of juries will improve the situation. Before they get rid of hundreds of years of British history, they should have to prove that, and they have not yet done so.
If the hon. Gentleman will give me a little time to proceed with my speech, I suspect that he will find that we have a great deal of evidence that, in the past, the House has found the measure to be the appropriate way of making the change.
I believe that the House will support the Bill and agree that it is the way forward. Judges, too, have taken that view in a whole series of cases. In the Maxwell case, Mr. Justice Buckley talked about his need to sever cases. He said:
“When using his powers of severance the trial judge recognised that it would prevent the prosecution from putting before the jury the full weight of the case”.
He said that accepting the submission that the second trial should not take place
“is to accept that in a serious and complex fraud, the limitations of jury trial prevent the prosecution from presenting a case which fairly and adequately represents the fraud alleged. If that is so then jury trial is unfair and inappropriate.”
Other judges have expressed similar views.
As my hon. and learned Friend rightly said, calls for the special treatment of a small number of cases have been made for more than a decade. He referred to Maxwell, and I have with me a copy of the Financial Times from January 1996, which carries the headline, “Maxwell brothers cleared of fraud”. I covered the trial at length when I was a member of the press, and that decision came as a surprise to a great many people. Many people in the fraud prosecution service think that it is high time that the Government addressed the problem, as they are now doing.
Will the hon. Gentleman bear with me while I reply to my hon. Friend the Member for Newcastle-under-Lyme (Paul Farrelly)? Let us calm down the vibrations and not become too excited, as we have discussed these issues before. They are important, and it is right that we consider the arguments calmly and carefully.
The view taken by judges in a series of cases is that the issue must be addressed, which is why the Government introduced the proposals. When the Blue Arrow case was under way, the trial judge, Mr. Justice McKinnon, had to sever the case into two trials to make it “manageable for the jury”. He said that
“no jury should be asked to cope with what this jury had had to endure.”
The Court of Appeal said that
“there is a significant risk of a miscarriage of justice resulting from the volume and complexity of the evidence”.
It noted that the jury retired with 956 pages of exhibits and such recollections as they may have had of the evidence given by 94 prosecution witnesses seven to 11 months earlier, and of the final speeches of counsel, which were delivered 59 to 65 days earlier. As a result of that long deliberation, in 2003 the House passed section 43 of the Criminal Justice Act.
May I touch on the point about specimen counts? As a result of the Domestic Violence, Crime and Victims Act 2004, it is possible to hold a trial of specimen counts by jury, and a trial of remaining counts by the judge alone. The Government do not appear to have taken that into account in introducing the proposals, so I would be grateful if the Solicitor-General dealt with the issue.
The Government did take that into account—after all, we introduced the legislation to enable such trials. However, we need to deal more broadly with serious and complex fraud cases. Parliament indicated in the Criminal Justice Act 2003 that it wanted to deal with the problem, and we believe that it should do so.
I am afraid that I shall not give way as I wish to make progress. However, I will accept interventions later.
Section 43 of the Criminal Justice Act provided for judges in serious or complex fraud cases to order, following an application by the prosecution, that the trial should be conducted without a jury. The judge must be satisfied that the length or complexity of the case is likely to make the trial so burdensome on the jury that the interests of justice require serious consideration to be given to the need to conduct the trial without a jury. An important safeguard is that an order for a judge-only trial can be made only with the consent of the Lord Chief Justice. There are other safeguards. The prosecution must believe that the criteria are met, and the judge must agree. Furthermore, the Lord Chief Justice must grant his consent.
When that legislation was passed by Parliament, its implementation was subject to a requirement for an affirmative resolution of both Houses. That unusual requirement was inserted into the Bill in its closing stages, just before it was enacted in November 2003. It was not the Government’s intention that it should constitute a permanent obstacle to commencing section 43, because in that case there would have been little purpose in enacting the section at all. In any event, when the matter was brought back before the House earlier this year, an affirmative resolution was passed by the House. It became apparent, however, that the combined Opposition would use their majority in the other place to frustrate that affirmative resolution. Therefore, seeking to move forward by consensus, the Government opened further discussions with the Opposition to see whether we could reach an agreement about the way to deal with serious and complex fraud cases. After discussions between the Front-Bench teams, it became clear that no agreement was likely to be forthcoming.
The Government take the view that the time has come to give effect to the provision that Parliament passed in 2003, which was likely to be frustrated in the other place. We believe that, as we indicated in our manifesto, reform of trials in serious fraud cases is necessary. That is why we have introduced the Bill.
Will the Solicitor-General tell us a little about the consultation process? I recall that the last time the matter came before the House a seminar was organised—attended by members of the Government—and out of that came the present proposals. Apart from the discussions that he mentioned, have there been any further meetings involving members of the profession and others to discuss this important constitutional change?
There has been discussion of the change over a long period, involving submissions to Lord Justice Auld and, before that, to Lord Roskill, and also submissions in response to White Papers that have been published. The various professions and members of the public have therefore had opportunities to express their view over a long period. There was a long consultation before the 2003 Act. Since the order was passed by the House but not proceeded with in another place, there have been discussions with the Front-Bench teams of the other parties to see whether there was a possibility of compromise that would enable us to proceed with what we believe to be a necessary proposal. We were unable to secure that level of agreement, which is why we are where we are.
The Solicitor-General says that there are three safeguards—the prosecution must persuade the judge, the judge must be persuaded, and the Lord Chief Justice must give his consent. Presumably, the judge will be persuaded after oral argument and possibly paper submissions as well. In order for the Lord Chief Justice to give informed consent, am I right in thinking that he, too, will have to have an oral hearing in front of him, or he will have to read himself into the case? If he is not properly apprised of the issues in the case, his consent will be formal only. Can the hon. and learned Gentleman assure me that the safeguards that he suggests are so good will indeed be so good?
To some extent, we will have to rely on the good offices of the person appointed as Lord Chief Justice, and I think that we can do that. We do not envisage an oral hearing. The aim would be for the Lord Chief Justice to look at the facts of the case and take a view, bearing in mind the view of the judge who heard the initial application, which can take place with submissions by the various parties. The Lord Chief Justice will then have to give his consent to the process. That is a strong safeguard to ensure that the procedure will take place only in cases that fit the criteria and in which a jury is not necessary.
The Solicitor-General knows that the 2003 Act would not have been passed had agreement not been reached to require an order later on. Since that agreement three years ago, we have had the report of the Jubilee line case stating that jury trial was not a factor in the failure of the case, and a juror saying that jurors entirely understood the case. Has the hon. and learned Gentleman any new evidence from new sources that suggests that with all the other changes that are meant to shorten trials, the absence of juries will be of benefit? Has there been any new evidence over the past three years to support his argument?
The House has considered the matter since 2003 and taken a view on it, as it did only a few months ago. As regards evidence, the hon. Gentleman mentioned the Jubilee line case. He is right to say that the jurors said that they understood the evidence in that case. It is not our argument that jurors are incapable of doing that. It is our view, however, that the report on the Jubilee line case makes it clear that both during the trial and subsequently, a number of jurors suffered considerable stresses as a result of being involved in such a long and complex case. The employment of some of them was affected, and some have experienced difficult circumstances since then.
Although it is not clear that the Jubilee line case would ever have met the criteria for section 43—that is the view that the inspector reached—the stresses on the jurors were considerable. With the report of the inspector on the case, we had a great opportunity to see what happens in such cases. Obviously, a jury cannot be questioned during the course of a case which has come to a result. That one did not, so the inspectorate was able to ask the jurors what happened and how they felt it progressed. That does not provide evidence that such a case would necessarily fit the criteria of section 43, which the inspector doubted, but it tells us that the stresses on a juror can be substantial not only during a case, but subsequently.
The Solicitor-General has drawn attention to the stresses. I have no doubt that there were stresses on the jurors—I have the report of the inspector—but stresses occur in many long cases involving terrorism or conspiracies. Once we rely on stresses as constituting a good argument for doing away with jury trials in fraud cases, that precedent will certainly be extended to many other classes of case.
We have no intention at this stage—[Hon. Members: “At this stage?”]—of taking any of the steps that the right hon. and learned Gentleman suggests. We have no plans to do so. Let me be very clear about that. Hon. Members ought to take cognisance of the burden on jurors. We cannot ignore it and pretend that we can put people in situations where their lives are massively disrupted for a year or more, and where their jobs may be lost, their promotion hampered and their relations with their employers damaged, as we saw in the Jubilee line case report. We need to take such factors into account. I am sorry that the right hon. and learned Gentleman does not agree.
May I press the Solicitor-General further on the up-to-date evidence on the special treatment proposed in the Bill? Let us not go back to Blue Arrow or the Jubilee line. In the past year, since the protocol was put in place determining criminal procedure rules, about six cases have come up. Which of those has not benefited sufficiently from the new rules to justify the current proposals?
It is not a matter of cases benefiting from the rules. The rules will benefit all subsequent cases. I have repeatedly stated that our programme for dealing with fraud involves changes in the law, which we have introduced, and changes in procedures, such as the protocols that the hon. Gentleman mentions, which need to be made. It involves the fraud review, which is examining the broader aspects of fraud—the investigation of it, the prosecution of it and how that can be done more effectively. Putting in place legislation such as the Bill will enable us better to deal with the most serious, complex and lengthy fraud cases in a more effective way and bring about justice more effectively.
The Solicitor-General has touched on an important issue. As he is well aware, many trials that have lasted a long time would never qualify for trial by judge alone, even under the Government’s proposals. For instance, the Jubilee line case, which is the subject of much comment, would almost certainly have been sent to be tried by a jury. It was not expected to be very long and was not very complex. Could the Solicitor-General be a bit more precise about the sorts of cases that he wants to cover? Otherwise, we are left with the impression that the Government’s proposals are designed to be much wider in scope.
We are proposing what we say we are proposing. Cases such as Blue Arrow, Maxwell, Da Costa, Talbot village trust and Cushnie involved the sorts of issues that might have been subject to a change as a result of section 43. A range of cases could be covered, mainly those that are very lengthy. The hon. Gentleman is right about the Jubilee line case. The inspectorate said that it might well not have fitted within the criteria, but that is not the point; other more complex and difficult cases might have done so.
I will give way to my hon. and learned Friend later, but I need to make some progress.
Our criminal justice system needs to deal effectively and fairly with all kinds of crime, but sometimes it fails to do so in the most serious and complicated frauds because defendants do not face trial on charges that adequately reflect the full criminality of the accusations that are made against them. That is the key point. From time to time, trials collapse under the pressure of evidence, with the result that justice is not done and the taxpayer is left to meet substantial costs. The current position is that the greater the scale and complexity of the fraud, the less likely it is to result in a successful prosecution. That cannot be right. We cannot accept a double standard whereby petty frauds are easy to prosecute and frauds on a grand scale which, although small in number, can have an impact on many victims are too difficult to prosecute. Despite attempts to keep trials within reasonable bounds, complex fraud cases often last for many months. In the four years from 2002 to 2005, the Serious Fraud Office reported that 26 fraud trials lasted for more than six months, six of which lasted for more than a year.
The prosecution and the courts already do much to keep the length of trials to a minimum. We welcome the Lord Chief Justice’s protocol of March 2005, which will promote robust and well-informed case management. That will help, but it is not an adequate answer of itself. The complexity and potential length of some serious and complex fraud trials still resists the best efforts of all involved to reduce the burden on the jury. In order to make them manageable, trials are too often carved up in a way that prevents the full criminality of the fraud from being exposed in the trial. That cannot serve the interests of justice. Cases are split into separate trials by the severing of indictments. Even then, it is sometimes necessary to restrict the material put before the court, in order to make it manageable and comprehensible to a jury. Evidence is pared down and charges reduced to the main charges. Secondary defendants, who should perhaps be prosecuted notwithstanding, are not brought to justice because it would complicate the trial too much. The result can still be the worst of all worlds—enormously long trials that are intolerable for the unfortunate jurors, but do not enable the full criminality alleged in the most serious fraud cases to be presented to the court.
The Government’s proposal for judges to try cases without a jury is not a general attack on jury trials—on the contrary. As I said, there were 28,000 trials before a jury in the course of the past year. The provision will affect a few trials each year; 99.9 per cent. of jury trials will be unaffected. Furthermore, the Government are looking to take steps to examine the issue of Diplock courts in Northern Ireland. If we can do that, there will more jury trials than ever. In fact, I am a great believer in jury trials; I was a criminal lawyer before I came here. They are a good way of deciding guilt or innocence in the Crown court.
That said, the vast majority of trials take place in magistrates courts and do not involve a jury, so there is no immutable principle that we must always have a jury to do justice. 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. If we went down to Horseferry road magistrates court or to other London courts today, we could well see that happening. It often happens, although not in summary-only cases, with the consent of the accused. No one should argue that justice is not being done because no jury is present. Many of these cases result in people going to prison. Thousands of people are tried in this way every year. Someone who gets arrested for benefit fraud and charged with 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.
Is the argument that having a jury is a great principle only if it happens in a particular kind of court—the Crown court? Either that is a principle or it is not. Daily in this country, justice is delivered in trials before district judges or before a single judge in our civil courts. In our view, a High Court judge can do justice for that very small number of white-collar fraudsters. Juries are right for some cases, but not for every case. The real issue is how we can best do justice. Where justice can be delivered in a better way, we should act on that. Our argument is that in a few cases a year out of the 28,000—only in the most serious and complex fraud cases—there are good reasons for saying that justice can be done by a judge sitting alone.
This is now a rather antique intervention on the subject of the Jubilee line. As my hon. and learned Friend knows, weeks before that trial collapsed, defence counsel wrote to the Attorney-General to point out that that was going to happen. It had nothing to do with juries; it happened because a lot of issues that should have been sorted out years before the jury members were empanelled were being dealt with while they were there. It was a classic case of awful case management, and the Attorney-General was written to about it. On 21 June I asked my hon. and learned Friend, in this very place, to find out and to let me know what steps the Attorney-General took. He said that he would but has, no doubt inadvertently, forgotten to do so. Can he tell me now?
The Attorney-General set all that out in a statement in the other place. If my hon. and learned Friend has not yet had an opportunity to read it, I will ensure that a copy of the relevant Hansard is brought to his attention. I realise that he will be a religious student only of this place’s Hansard, but sometimes statements in another place make helpful reading too.
The Solicitor-General said that lengthy cases place an undue burden on the jury. However, as the hon. and learned Member for Medway (Mr. Marshall-Andrews) will testify, lengthy cases take place week in, week out at the central criminal court, the Old Bailey, sometimes lasting for months—yet the Government do not suggest that they should be removed from the jury system. [Hon. Members: “Not yet.”] They have no present plans. What principle singles out fraud cases but does not draw in lengthy terrorist or other criminal cases at the Old Bailey?
There are two key issues. First, this area has a long history, whereas others do not, and we do not intend to move into those. Secondly, some of these cases involve very complex evidence having to be presented to the jurors. The jurors on fraud cases sometimes face the physical and mental task of listening to complex and obtuse evidence involving a large number of defendants making interlinked financial transactions over a number of years, with detailed cross-examination—[Interruption.] I am trying to answer the point raised by the hon. and learned Member for Harborough (Mr. Garnier), but if he insists on chuntering on, he is not going to hear me. Either he is serious about making this point, in which case he will listen to the answer, or he is not.
No. Perhaps I can answer the hon. and learned Gentleman’s question, then he can intervene if he really wants to. Let us have a sensible discussion, rather than heckling from the sidelines.
Jurors often have to listen to somewhat complex, obtuse evidence involving a large number of defendants making interlinked financial transactions over a number of years, with detailed cross-examination requiring constant cross-referencing to documents and records. Many of the complex deals and financial transactions that can be involved in serious and complex fraud cases will be outside the experience of members of the public, facing jurors with a steep learning curve to master the financial theory as well as the practical evidence.
One good chunter deserves another, I would have thought. I thought that the Solicitor-General’s case at the outset was that he was not advancing what I would rudely describe as the “stupid jury” argument, yet he just seems to have done that. He must make up his mind: either juries are or are not capable, and either the Government’s case is or is not based on that argument. He cannot have it both ways.
I am not advancing what the hon. and learned Gentleman describes as the stupid jury argument—not at all. I want to make it very clear that it is not our claim that juries are incapable of understanding complex fraud cases. What we say is that, in the words of Lord Justice Auld, the length of such trials—some of which last for several months—represents an unreasonable intrusion on jurors’ personal lives, and, where they are in employment, their working lives, going way beyond the conventional requirement for such duty of about two weeks’ service. Juries can cope with long trials, but having to sit on a jury for six months, or sometimes more than a year, is an excessive burden on members of the public. That is my first point.
My second point is—
I am still answering the hon. and learned Member for Harborough. If hon. Members calm down a little, we will get through this.
Secondly, our criminal justice system requires juries to listen to the presentation of oral evidence, and there is sometimes very complex and obscure evidence that requires knowledge of complex financial dealings. A jury trial, with its oral tradition, is not always the best place to expose and explain that level of complexity, in my view.
As I have already said, the need to present oral evidence in trials has led the courts to divide cases into two or three trials so that the number of defendants and the complexity of the case before a jury is reduced. I have already referred to the comments of Mr. Justice McKinnon, who talked about having to split cases to make them manageable for a jury, and suggested that no jury should be asked to cope with what a jury had had to cope with in a particular case of his. As the Court of Appeal has indicated, there is a risk of a miscarriage of justice. So my second point is about the level of the burden on juries.
My third point is that, as Lord Justice Auld said, all this has the effect of making juries even less representative of the community than they are already. The court often excuses many people who would otherwise be able to make a short-term arrangement to do their civic duty. Long trials are a great personal strain and burden on everyone involved.
I am still dealing with the point raised by the hon. and learned Member for Harborough. It was a serious point, and I am dealing with it.
As far as we are concerned, the juries that are used in these long cases—as they have been in the past—have sometimes lacked a broad representative capacity. The general idea is that we choose a jury randomly, and that it is broadly representative of the public. However, because of the nature of this kind of trial, we have not always been able to ensure that that is the case.
I want to intervene on my hon. and learned Friend on the point about the balance and the representativeness of juries, which is already causing much false indignation and misrepresentation on the Opposition Benches. I covered the Blue Arrow case; it was my first journalistic assignment. It was strange, because I was in the scribblers’ dock when one of my former colleagues, an investment banker called Nick Wells, appeared in the dock because he had worked for County NatWest. I remember clearly that a way in which professional jurors got off doing jury service in great numbers was either to declare to the judge that they were account holders at the NatWest bank or to go and open such an account. A large number of white-collar jurors disappeared from that court through jury selection, and there was a serious question about the representativeness of the jury.
My hon. Friend has experience of that particular case, and others have had experience in other cases. The view of the Opposition appears to be that we should just ignore this problem and pretend that it does not exist. They seem to think that we should not address it, and just get away from it. We are saying, however, that we will address the issue and put in place a system for trying the most complex cases—a small number—which will work more effectively.
Some internal contradictions seem to be opening up in the Solicitor-General’s case. First he said that the stupidity—to use a word that was used elsewhere—of the jury was not a factor, but he went on to say that juries had difficulty in understanding the complexities of such cases. Secondly, he said that the only criterion that is moving the Government to take this action is the length of the cases and the stress that that places on juries—yet the measure will not apply to equally long and equally stressful cases in other parts of the judicial system. Thirdly, he said that because a jury that would be available for such a long time might be unrepresentative, he intends to remove the jury, so that a wholly representative judge can hear the case instead. Is that the sum total of his argument?
No. The hon. Gentleman has traduced my argument quite badly. I did not argue that juries could not understand the case; I have been clear in not arguing that. I said that the way in which such cases can develop is burdensome, and that we as Members of Parliament need to take account of the burden that we place on ordinary members of the public. I am sorry that the hon. Gentleman does not want to do that, but we have a responsibility to ensure that we do.
Not at the moment.
We do not want to deal with the issue of unrepresentative juries by having an unrepresentative judge. That suggestion again traduces my argument. The argument of the hon. Member for Somerton and Frome (Mr. Heath) is that juries are somehow going to be representative of the man in the street, of members of the public. The evidence suggests, however, that that is not as clear an outcome in these very long cases as he might like to think. If there are better ways of conducting complex serious fraud cases, we should deal with them in this way.
When a trial takes place before a judge alone, evidence that would have been presented orally to a jury can simply be read by the judge—
I am grateful to the Solicitor-General, because he is now touching on an important area that he hinted at earlier but has not clarified. What is the procedure to be in these trials by judge alone? He has just suggested that there will be a shortening of time because judges can go off and read large amounts of material, which will not be presented formally to them in front of the defendant, to cut their way through the process. If that is indeed what the Solicitor-General is contemplating, I do not think that fairness in the trial system will be maintained. I have serious doubts that there is any shortening of time to be had. I would have thought that all evidence would have to be presented in open court, and either read out loud or presented orally in the usual way. If the Solicitor-General is suggesting something else, the House should be told about it.
In our trials, arguments must be set out orally, at length, before a jury, and those arguments can be dealt with much more expeditiously by a judge. A judge will, for example, be able to curtail speeches by barristers who go on at great length, in a way that would be impossible when a jury is involved.
In response to the sedentary intervention of the right hon. and learned Gentleman, I, or rather you, Mr. Speaker, will be the judge of the rights of Back Benchers in this case. Let me not usurp the right of the arbiter.
A judge can curtail lengthy speeches by windbag journalists—[Interruption.] Sorry, I meant windbag lawyers, although perhaps journalists too might be involved; one never knows. By doing that, the judge can ensure that the trial proceeds much more expeditiously. Most importantly, there will be less need for cases to be severed, or for sample charges. On the whole, cases could be dealt with more expeditiously—but shorter trials, however desirable, are not our primary objective. We want to enable justice to be done by exposing the whole criminality of the case in a single trial. If trials are short, that will be a bonus.
Rather than having a case severed, or some of the charges dropped, we believe that judge-led trials will enable the full culpability of defendants to be exposed in court and the crime to be considered in the round. Yes, longer indictments will be involved, and cases will be examined in one trial rather than being severed into two or three. That may well lead to some trials taking as long as they do at present, but without the intolerable pressure on individual members of a jury. If found guilty, defendants could also be punished for all that they have done, whereas we sometimes find now that trials are severed and they are punished for part of it here and part there, and the whole of the evidence is never exposed before members of a single court. The point made by the hon. Member for Beaconsfield that some do not believe that trials by judge alone will be shorter is not as telling as he thinks, as the aim has always been to ensure that the full culpability of individuals can be brought before the court, which is currently being prevented in some cases. He seems to want that full culpability not to go before a single court, but our view is that it should.
Section 43 offers a further all-important advantage to defendants—a reasoned verdict. Defendants convicted by jury are not at present entitled to know the reasons for the verdict on them. When a trial is conducted without a jury, and a court convicts a defendant, the judge will be required to give a full reasoned verdict as soon as is reasonably practical after a conviction, and to demonstrate that all proper procedures have been followed.
A few minutes ago, the Solicitor-General was telling us about a fraud case that he argued was eminently suitable for trial by judge alone—a case of huge complexity that lasted many months and involved complicated documents and financial transactions all over the world. I was involved in a case in the Isleworth Crown court a few years ago that was equally complex, equally long and involved equally complicated financial documents, but it was on a drugs charge. Would he have that case tried by a judge alone?
We do not intend drugs cases to be dealt with in that way, but some cases brought by the Revenue and Customs Prosecutions Office, which involve substantial financial transactions that could have drugs deals as an adjunct, might well come before such a court. Our view, however, is that the number of cases involved will be limited. We are really considering the sorts of cases dealt with by the Serious Fraud Office. I suspect that the case to which the hon. Gentleman refers was not prosecuted by the SFO—[Interruption.] He indicates that it was not. By and large, the sorts of cases dealt with by the SFO are those that we are considering. Some cases prosecuted by the RCPO might also fall within that category. A fairly limited range of cases are involved.
The Bill also contains a provision, which was requested by the Opposition, for a High Court judge both to hear the application for a non-jury trial and to conduct such trials. I therefore hope that the Opposition now feel able to support the Bill.
In conclusion—[Hon. Members: “Hear, hear.”] Perhaps these provisions have been more fun for me than for others to deal with. Section 43 is not a general assault on trial by jury—far from it. The number of cases that can be tried by High Court judges will be few compared with the more than 28,000 contested trials each year. Substantial safeguards have been put in place to ensure that the interests of the defendant are protected, but also to safeguard the public interest in seeing justice done.
The Bill does not introduce a new policy but rather takes steps to give effect to a statutory provision passed by Parliament in 2003, which was likely to be frustrated by the Opposition in another place. Our aim is to ensure that the full criminality of the most serious cases can be exposed to public view in a criminal trial, and that those convicted can be punished for the totality of their criminality. In some long trials, that is not currently happening. The Bill will be a valuable reform aimed at fulfilling the Government’s commitment to tackle fraud, and at creating a criminal justice system that deals effectively and fairly with all kinds of crime.
I suppose that one thing I can say to greet the Bill is that I am at least pleased that the Solicitor-General and Attorney-General have lived up to their promise to introduce a stand-alone Bill for this proposal. Marginal though it may be, the decision that such trials and the mechanism to determine whether they should take place should be dealt with by High Court judges is a tiny improvement. Beyond that, I can welcome nothing in the Bill in any shape or form.
In welcoming the fact that we have a stand-alone Bill, is not the problem that we are enabling the Government to put the proposals into force? The affirmative resolution will never pass in the other place, and the Solicitor-General is thinking of using the Parliament Act to get the Bill through.
I have no doubt that my right hon. and learned Friend is right. The history of the Bill is littered with examples of broken promises. The one promise that has been kept was made during the passage of the Fraud Bill, which was to the effect that there would be no attempt to include the provision in the Fraud Bill, and that a stand-alone Bill would be introduced. The Law Officers have observed that promise. The Bill has a long history, albeit not quite the history given by the Solicitor-General.
My hon. Friend says that having a stand-alone Bill is an advantage. Does he agree that one advantage of stand-alone legislation is that it can easily be repealed? Will he say now from the Front Bench that an incoming Conservative Government will do so?
I cannot think of a reason why we should not. Indeed, if anyone asks for my view, I shall say that we should. I hope that gives some indication of my thinking on the matter. It is true that stand-alone legislation can be removed from the statute book fairly easily.
The Solicitor-General comes to the Dispatch Box with all sorts of honeyed assurances that we should not consider the Bill to be part of a general attack on the jury system. The history of the past 10 years suggests, however, that the system has come under repeated attack from the Government, that on numerous occasions we have had to stand up to the Government’s attack—not always with complete success—and that there has been a progressive erosion that goes beyond that of the jury system.
The Solicitor-General mentioned district judges in magistrates courts. I am a firm believer in district judges in magistrates courts—a deputy district judge who sits in magistrates courts is sitting behind me now—but there is no doubt that, over the past 10 years, the Government have shown themselves to be highly inimical to the lay magistracy. Indeed, they wanted to reduce its work to nothing more than road traffic cases, until the cost was revealed.
In summary jurisdiction courts, lay magistrates perform exactly the same role of representing the community independently as juries, and the Government do not like juries. If they did, it would be inexplicable that in the Bill that became the Criminal Justice Act 2003 they proposed—until we stopped them—to allow people to elect for trial by judge alone if they were so minded. We had to oppose that proposal, and it was in the final stand-off that we ended up with a double-lock mechanism in section 43. I must tell the Solicitor-General that I had no doubt—and I am sure the hon. Member for North Southwark and Bermondsey (Simon Hughes) had no doubt—that that was a face-saving device, because we had told the Government in the clearest and most unequivocal terms that in no circumstances, either here or in the other place, would any of the Opposition parties vote to allow the implementation of the proposal. To suggest otherwise is a rewriting of history that causes me even more anxiety when I consider it.
The right hon. Member for Leicester, East (Keith Vaz) mentioned consultation. The Government promised consultation after the 2003 Act: it took the form of a morning seminar, with none of those invited realising that it was the only formal consultation. I could not attend, but my noble Friend Lord Kingsland went along, and was not aware even while attending the seminar that it was in fact the formal consultation. I think the Solicitor-General would have to confirm that there has been no further formal consultation whatever since then—certainly I am not aware of any.
I acknowledge, and place on record, that on a number of occasions I have met the Attorney-General, and indeed the Solicitor-General, for amiable discussions about possible ways of changing the current jury system in fraud trials. However, none of the suggestions made by me or by the hon. Member for Southwark and Bermondsey was accepted, and it was clear that there was no meeting of minds.
We should ask ourselves what the Bill is really trying to do. I always listen carefully to the Solicitor-General, but I have to say that the first thing I look at when the Government propose legislation is the Home Office propaganda statement released to the press, in which the form of words and the nuances are often rather different.
This Home Office statement begins with a little preamble about the new legislation. It states
“The Government is committed to rebalancing the criminal justice system in favour of … the law-abiding majority.”
How often have we heard that statement used in the House to justify authoritarian, draconian, unfair measures to interfere with the criminal justice system, without there being a shred of evidence that they will rebalance the system in favour of the law-abiding majority?
Apart from anything else, I think the Solicitor-General must accept that if he is telling us the truth, the impact of his proposals on criminality in the United Kingdom will be so minimal as to go totally unnoticed. I believe that 99.9 per cent. of trials will still take place before juries, with possibly half a dozen a year taking place without them. If this is really the Government’s answer to how we are to reduce crime and the fear of crime in our country, they are going about it in a very strange way.
It relates to the point about reducing the fear of crime. Does the hon. Gentleman believe that if the Government get their way today and the Bill comes into force in two or three months’ time, it will make defendants in cases of this kind more likely to think of pleading guilty, rather than trying to use the system to get off when they know they will be able to spin out the process for a year or so?
I think it most unlikely that it will make any difference at all. One of the Solicitor-General’s arguments for the Bill was that some cases collapsed after long periods without ever reaching a conclusion. That is absolutely true, but jurors have not had a role in it. In my experience—and I have some experience of fraud trials—such cases usually collapse because the prosecution case was poorly presented, failed to identify the key issues and presented far too much evidence. Cases are thrown out at half time on submissions of “no case to answer”, without a jury ever considering a verdict. Unless by some extraordinary circumstance judges take a different view from the view that they would otherwise have taken at half time because they are sitting without a jury—and I hope that that is not the case, because they ought to be applying their minds in exactly the same fashion—I think the number of long fraud trials that collapse will be identical.
There are new protocols, which we have discussed, there are directions from the Lord Chief Justice, and there is a new Fraud Act, the Fraud Act 2006. All those developments might well help. I hope very much that fewer fraud trials will collapse at half time, because I hope that cases will be dealt with better. I hope that the charges on the indictment will be right, and that fewer prosecutions will be brought in cases in which manifestly the wrong charge has been brought or no charge should have been brought at all; but I do not think that juries are the key to such improvements.
The Bill—like section 43 of the 2003 Act, which we have already passed—is all about case management. The hon. Gentleman made that point when my hon. and learned Friend the Solicitor-General said that a High Court judge would do some reading in advance of cases. This is a pre-trial review process, a concept with which the hon. Gentleman will be very familiar. Does he not accept that if a High Court judge gets a grip on one of these cases at an early stage, case management is likely to improve? Once seized of the position, the judge will almost certainly want to ensure that cases do not collapse in the way that the hon. Gentleman has described.
The hon. Gentleman makes a perfectly reasonable point, but the same applies to jury trials. Judges ought to “read themselves into the evidence” before a case starts, and in my experience of long and complex fraud trials—indeed, all long and complex trials—that is what they do. A much more complicated issue, which we have not resolved, arises when the material that the judge “reads himself into” at the outset turns out to be different from the material that is ultimately presented in the course of a trial. We have heard nothing from the Solicitor-General about that procedural issue and the real risk of miscarriages of justice. I shall say more about that shortly.
Yes, there should be good case management, and I am sure that case management can be improved. Stephen Wooler’s report on the collapse of the Jubilee line case shows exactly what can go wrong with trials, and it has nothing whatever to do with juries.
My hon. Friend is absolutely right. Delay in any criminal justice process is a bad thing, and I know—not so much from working on fraud cases, but from working on health and safety cases, including prosecuting them—that cases take far too long to get to court. One would like them to go faster.
Delay is sometimes due to the investigation process. I do not think that it is usually due to the lawyers, but bringing everybody together in a court requires a bit of organisation, and it will still require organisation even when there is not a jury. There are always plenty of people to make up the jury panel—they can be found without great difficulty—and co-ordinating the diary availability of lawyers, defendants, witnesses and judges is by far the more complicated and time-consuming process in bringing a case to court. That is where the delays arise.
The Home Office propaganda statement goes on to say:
“At present, in some of the most serious and complicated fraud cases, it is not possible for defendants to be tried on charges that adequately reflect the full scale of the accusations against them. This is because in cases that involve a multitude of different offences and defendants, it is necessary to limit the amount of evidence that is put before a jury.”
When I started prosecuting, I was taught by those who knew much more about the subject than I did to keep it simple. Every judge in front of whom I ever appeared insisted, when prosecutors said they wanted an 18-count indictment—for fraud or anything else—“No, cut it down. The criminality can be adequately shown by far fewer counts.” In my experience, at the end of cases that resulted in a conviction, other matters could often be taken into consideration with the consent of the defendant. Under the Domestic Violence, Crime and Victims Act 2004, where defendants do not agree to matters being taken into consideration, the judge may reach a decision on his own. I am at a loss, therefore, to understand how the Solicitor-General can argue that there is a problem of not showing full criminality, as we have all these important new provisions on the statute book—although I have a funny feeling that the relevant section of the 2004 Act has not yet been implemented, which is characteristic of this Government.
We must also have a sense of perspective. I am sure that there are many people who have committed all sorts of crimes—not just fraud—for which they have never been convicted. I am not particularly concerned about that if they are serving a long period of imprisonment for the crimes for which they have been convicted, and neither I suspect are the public. The truth is that in many cases people are convicted of specimen counts, and it is perfectly adequate for the sentencing that follows to reflect the overall criminality. The Solicitor-General simply did not touch on that in his remarks, which puzzled me very much.
The hon. Gentleman is being very generous in giving way. He and I have debated a number of such Bills over the years—to some effect, if I may say so—but his last point does not do him justice. Is he really suggesting that in a multi-billion pound fraud case there will be a specimen count and the judge will introduce what we used to refer to as TICs—offences taken into consideration—and the defendant will say, “I am going to have a series of other multi-billion frauds taken into account”?
The hon. Gentleman had better ask the Solicitor-General and the Government about that. It was not an uncontroversial proposal when it was put forward under the Domestic Violence, Crime and Victims Bill. We debated it extensively in Committee. Some argued that it might be unfair to defendants. I took the view that, in a fraud involving a repetitive system, there was very little harm in the judge making such a ruling at the end of the trial if the defendant did not accept the further offences. There is a greyer area: there might be different methods of fraud, in which case I would expect each method to be reflected by specimen counts—which seem to commend themselves so little to the Solicitor-General. Therefore, I have to say to the hon. Member for Wirral, West (Stephen Hesford) that the Government have put in place a mechanism for getting round this problem and still having a jury trial. We simply have not heard from the Solicitor-General why it has suddenly been decided that this method is unworkable, or does not even merit proper commentary on Second Reading.
The next thing that the Government say in the Home Office document is:
“In spite of attempts to keep trials within reasonable grounds, complex and serious cases can often drag on for months, which imposes an intolerable burden on jurors. It also means that juries are not properly representative as not many people can afford to give up their normal lives for so long.”
The Solicitor-General has tried to argue that there is something special about long and complex fraud trials, but there patently is not. I worked on a complex health and safety trial lasting many months, in which the jury had to consider technical, engineering material about a pontoon in Ramsgate harbour. Working models of the pontoon were brought into court so that jurors could look at them. I have been involved in other cases that required the same technical expertise, with experts coming to court to explain things to juries. Dozens of lever-arch files, often massive ones, had to be placed in the jury box. Such cases will not be covered by these proposals—
Yet, as my hon. Friend says. From my personal experience, it is crystal clear that juries can be made to understand such material as long as matters are explained in layman’s language, and most advocates should be, and are, capable of doing that. Help from the judge in summing up will also facilitate that. Therefore, I simply do not understand why we have suddenly identified this extraordinary category of evidence that is so complex that juries cannot deal with it.
I am very pleased that yesterday I was able to secure the report on interviews with jurors in the Jubilee line case. That document has not previously been published, and if the Government had anything to do with not publishing it I can well understand why. That document was the basis of Mr. Wooler’s report—
I apologise, Mr. Deputy Speaker. The document I am referring to was prepared to inform that report. It makes for fascinating reading because for the first time the jurors who served on the Jubilee line fraud trial were interviewed, and their impressions of the way the case progressed were recorded, as were their attitudes to their jury service, which lasted many months. In truth, it also gave an impression of whether they were competent to deal with the case—which involved 46 files of documentation of a financial and other nature being placed in front of them.
The conclusion was that the jury appeared to be remarkably co-operative, mutually supportive and cohesive. Jurors said that they all took their task seriously, and most took it very seriously, and they made positive remarks about the process. The majority of the jurors said that they remained very involved in their task as jurors and insisted that they were on top of the evidence and had a good understanding of the case when it collapsed. They knew that there was more evidence to come in the judge’s summing-up and directions.
The jury had a group meeting, and the jury taken as a whole did not appear to have had difficulty in understanding the evidence or the essentials of the case as presented to it. It is stated that from the claims made by the jurors, which were broadly supported by the understanding that they displayed at the group interview in the afternoon discussion, that they showed quite impressive familiarity with the charges, issue and evidence despite the length of time that had elapsed since the case collapsed, the fact that they did not have their notes or access to documents nor an opportunity to think back and refresh their memories, and the fact that they had not heard all the evidence, arguments and summing up. They recalled particular parts of the evidence and particular witnesses and the substance of their evidence. [Interruption.] I see the Solicitor-General nodding. If ever one wanted a document that provided a better monument to the endeavours of juries in this country, or a better justification for the jury system, it would be hard to find.
Before my hon. Friend leaves this issue, will he remind the House that that jury accepted empanelment on the trial even though they knew that the trial was going to last between six and 12 months? It took much longer, but they were willing to serve up to 12 months, which makes the point about jurors’ willingness to serve in long cases.
Yes indeed, and it is worth bearing it in mind that, under the Lord Chief Justice’s protocol, trials should now last more than six months only in the most exceptional circumstances, and that the reality is that jury service is normally 14 days. Any period of jury service that exceeds 14 days therefore inevitably leads to some jurors being exempt. So when the Solicitor-General starts giving us the extraordinary argument that was repeated in the propaganda—
“It also means that juries are not properly representative as not many people can afford to give up their normal lives for so long.”—
I start to get seriously worried, because that argument could be used in respect of any jury panel that lasts more than 14 days.
Indeed, as the Solicitor-General knows, that argument could also be used against the jury system altogether, because there are some people—Members of Parliament, for example—who are quite likely to be summoned to jury service and then released pretty quickly because of their other commitments, even after the changes that we introduced in the Criminal Justice Act 2003. For those reasons, that argument was one of the weakest put forward by the Solicitor-General. I believe that juries can understand and deal with the evidence, that there are plenty of people in the total electorate who are capable of making up a jury panel to serve for 12 or 18 months, and that they do so willingly and cheerfully. If Members read the report to which I referred, they will see how interested the jurors were in that case. Indeed, the comments and feedback were that they took their job seriously and found it rewarding.
I, too, have read that report, from which the hon. Gentleman has quoted selectively. He puts up the straw man that we are saying that juries cannot understand such cases, but we have said clearly that we believe that they do understand many such cases because they spend a long time listening to them. However, what he fails to disclose from that report is the evidence of the substantial burden placed on individuals in terms of their relationship with their employer. Some have had to take substantial time off work, and some have had long-term damage done to their relationship with their employers as a result of serving on a jury for so long. Our argument is not about understanding; it is about the burden on jurors, and I am sorry if the hon. Gentleman does not care about that.
While I am on my feet, let me make one point about the selection of juries and whether or not they are representative. The argument is not so much about representativeness as randomness. Jurors are selected randomly, and because of the way in which long cases evolve, that randomness is eroded because certain people cannot stay on juries. The randomness of selection is undermined by these long cases.
Let me make the position clear. On selective quotation, the Solicitor-General has had one advantage over me: he had the report—and doubtless read it—months ago, whereas it was put into the public domain only very recently. However, he is absolutely right to say that the burden of serving on a jury was considerable for jurors, and some pointed out that it affected their careers. But on reading the report, it is also clear that what really upset them was not the disruption to their lives but the fact that such disruption was for nothing—that, at the end of the day, there were unable to return a verdict.
The Solicitor-General might like to point out to the Prime Minister and to present and past Home Secretaries that the other thing that really upset the jurors in that trial was their portrayal in the media. The jurors felt unfairly portrayed as the cause of the collapse of the trial. They particularly objected to the portrayal of them in the press as being unable to understand evidence or to remember evidence and reach a fair verdict. Some were not particularly concerned but others were very upset. One said, “I was just so angry. To blame us when it was not managed properly—it was a farce.’” It was Ministers who encouraged the press into that condemnation. They latched on to the collapse of that trial in order to raise general arguments against jury trial in its totality.
I do not want to dwell too much on the Jubilee line case, but are not the comments of Her Majesty’s chief inspector, in recognising the burden that the substantial length of some trials can impose on juries, pertinent? He said in a recommendation that
“There is a need in such cases for more structured support for jurors to enable them to plan more effectively and minimise disruption to their personal and family lives and to provide authoritative assistance in resolving difficulties directly attributable to the length of jury service.”
There was no call, however, to remove trial by jury entirely.
Yes, I entirely agree with my hon. Friend, who makes another very important point. Juries should not be treated like sheep, shepherded back and forth from the jury room into the jury box. I have seen enough examples in my time of juries not being well treated, usually by the judiciary, which is regrettable. The truth is that juries are partners in this process, and my experience is that if they are treated like grown-ups, they respond very well to the responsibility placed on them.
Of course, one reason why jury trial is so beneficial is precisely that juries are independent. At the risk of repeating issues of principle—they seem, however, to need repetition in this House—criminal trials of a serious nature go to juries precisely because they are the community. When they do not consider themselves capable of returning a guilty verdict, we should remember that they are, after all, not “the state” in some abstract term, but the ones who might be affected by future criminality. So there can be no better test of guilt or innocence than placing that question in the hands of those within the community who might be the victims of such criminality. However, the route that the Solicitor-General is going down plainly raises the question of the development of the state against the individual.
The Solicitor-General seems to be arguing that the issue is huge time burdens on the jury and other pressures on their lives. Does my hon. Friend agree that if there is merit in that argument, the Solicitor-General should have introduced a different Bill stating that all trials of, say, more than three months will be by judge alone? The truth is that the same burdens that the Solicitor-General referred to in support of his argument exist already in respect of many other cases that have nothing to do with fraud.
My hon. Friend is absolutely right, and such a Bill would at least have some intellectual logic. Of course, the difficulty for the Government—indeed, this is what worries me so much—is that the current terrorist trials, which are lasting many months, would then no longer be suitable material for juries. I feel very strongly that such trials must take place in front of juries. I am never quite sure what the Government really think about such matters, because of the Prime Minister’s siren songs about his dislike of our “archaic” criminal justice system, which is always in need of modernisation. I do of course accept that curbing the right to trial by jury in such cases would, at present, be a step too far for the Government in terms of public opinion. That is why they have picked on fraud trials as the first area in which to make their inroads.
The hon. Gentleman is making some very reasonable points about case management—not for nothing does Private Eye call the prosecutor “the serious farce office”—but he is wrong to imply that the Government have picked this Bill out of a hat. As has been said before, it is based on the Roskill recommendations, which are 20 years old. I hope that it will be part of a package of measures—including a serious attempt to address plea-bargaining—that the Government will roll out in the next few months. I should be interested to hear the hon. Gentleman’s arguments on plea-bargaining. At the moment, there is very little incentive for serious fraudsters or insider dealers to cop a plea bargain, because they think that they will be able to bamboozle the jury and get off. If the Bill gives some incentive for such people to cop a plea bargain, because of the prospect of appearing before an expert judge, all the better for the more serious and effective prosecution of fraud and insider dealing.
The hon. Gentleman’s words trouble me somewhat, and I shall explain why. First, there was the implication that trial by judge alone would lead to more convictions because people would use the jury system somehow to slip out of the net. I am not persuaded by that argument. In most of the trials, the only issue that has to be determined is dishonesty. In the Maxwell case, there were many victims and the criminality alleged was considerable, but—as I understand the jury’s verdict—it was not persuaded about the dishonesty of some of the key defendants. That is a matter uniquely for juries. If the jury thought that, a judge might well have to come to the same conclusion.
If we are to allow trials to take place in front of judges on their own, we will have to consider carefully the procedures we adopt to ensure that a fair trial can take place. On that point, the Solicitor-General told us nothing.
Juries convict in 85 per cent. of fraud cases and anybody who thinks that they will get an easier ride in front of a jury has no experience of the system, either hands on or hands off. The Maxwell case caused an enormous furore, but the problem was that the main character was not there because he had walked off the back of a boat. That is why the defendants were acquitted, and they would probably have also been acquitted by a judge. Does the hon. Gentleman agree that if a judge had acquitted them, the outcry in the tabloid press that would have followed a white collar judge acquitting white collar people would have been appalling? That is one of the main reasons why the jury system is so valuable.
I agree entirely with the hon. and learned Gentleman and that brings me to my point about procedure. We will be asking judges to deal with long and complex cases and make decisions at the end based not on the balance of probabilities—the civil test—but on whether they are sure that a person is guilty of an offence. That raises problems with which judges should not be saddled. Indeed, I was surprised when the Solicitor-General suggested that the judiciary favoured this change. I have not come across a single judge, especially among the Crown Court judges, who thinks that it is necessary. Indeed, many have said privately, in vociferous terms, that they are against it. The last thing that High Court judges want is to have their credibility damaged when they reach difficult conclusions of fact. If they say that they are sure that certain events happened, three years later a new witness might emerge—which sometimes happens—who calls their judgment about what went on into question. It does not help the reputation of the judiciary who, in the criminal justice division, are the arbiters of fairness, not the deciders of fact. I know that we cast judges in that role in Diplock courts, but that was for exceptional reasons, and it is not in their interests to extend the practice.
I wish to query the statistic about conviction rates given by my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews). The argument is not about more convictions, but it is important to be accurate. The Serious Fraud Office completed 10 trials involving 23 defendants last year, of whom 13 were convicted and 10 acquitted, producing a conviction rate of 57 per cent. The average conviction rate over the past five years has been 61 per cent.
If I may, I will also address the question of dishonesty. The highly regarded report by Mr. Justice Auld dealt with the issue of dishonesty and juries, and it said:
“Often there is no need for any value judgment as to the dishonesty of the defendant, for example, where the only issue is whether he is factually responsible for, or a party to, whatever conduct is alleged, and where analysis of the evidence one way or another effectively determines the issue of dishonesty. In cases of complexity, for example, cases where the issue turns on medical or other scientific evidence, the issue is not one of dishonesty at all, or even of assessment of the reliability or credibility of witnesses or the defendant. It is simply one that requires a jury to understand and to evaluate conflicting expert views.”
Mr. Justice Auld deals with the point that the hon. Gentleman makes more effectively than I could.
I am not sure whether that was left out of the Solicitor-General’s speech or was to form part of the concluding remarks, but I disagree with it. Juries are capable of understanding complex evidence. Because of the random nature of their selection they mutually reinforce, and even out disparities of education. In my experience, the evidence is overwhelming that they can return true verdicts according to the evidence and ensure fairness towards those who are accused, quite apart from taking into account the wider need to suppress crime in our society.
We have not heard about the procedure. Judges who are trying these cases will be judges of both law and fact. They will have material placed before them for their consideration that they may subsequently have to rule out of the evidence. They will receive representations and submissions in the course of the trial that jurors would not normally hear, and they will have to handle all those complexities in the course of the trial process. That is not a slight issue, and I am a little puzzled that the Solicitor-General has not provided us with greater detail about how the system would work in practice. I suspect that it will be time- consuming and, indeed, he has already conceded that time saving is not part of the picture. If that is the case, it brings me back to the Government’s propaganda document, which states:
“At times these trials collapse, wasting millions of pounds and failing to ensure justice for victims.”
I repeat, what has that got to do with juries?
I always listen carefully to the Solicitor-General and the Attorney-General, but there is a big difference between what the Law Officers say and what the Government’s Home Office propaganda department churns out for the benefit of the press. That is why the House should be so wary of these proposals. I do not know where the force behind them comes from, but the evidence has been overwhelming in the past 10 years that this Government do not like juries or our present criminal justice system; believe in forms of parallel administrative justice; and are ready to cut corners with our civil liberties and the rights of defendants in order to achieve what they believe to be socially desirable objectives. The risk that the House runs is that supporting this measure will not reduce crime—which we should prioritise—but will undermine the criminal justice system and confidence in it. We would also open the door to getting rid of the jury system that, I and many other hon. Members profoundly believe, is one of the absolute underpinnings of our civil liberties. On that basis, there is no possibility of our supporting the measure and we will vote against it.
I shall endeavour to be brief. The last time that I said that at the beginning of a speech, they were the only words that I uttered before being stopped. I shall take a little longer on this occasion, although this awful Bill deserves short shrift.
The Bill is a serious attack on civil liberties, that have been our heritage for 800 years. It is unnecessary, unworkable and ill-conceived. If it is ever passed into law, it will almost certainly offend the European convention. It will lead to a two-tier system of white- collar judges trying white-collar criminals. It will involve huge delay in the trying of cases and massive extra expenditure, and it risks bringing the judicial system into disrepute. Apart from that, it is fine.
If the hon. Gentleman waits a moment, I shall deal with that as I develop my argument.
I shall start with a generality. The Bill does not stand on its own. From their inception in 1997, the Government have shown a clear aversion to the principle of jury trial. The Criminal Justice Act 2003 made it possible to bring past offences into any court to judge a defendant’s mala fides or mens rea. We can do it in this case—this Government have serious form when it comes to attacking jury trial.
As has been noted, those attacks began way back with the Criminal Justice (Mode of Trial) Bill. That was introduced in 1999, barely two years after the Government came to power. Effectively, it was an attempt to abolish the right to elect trial by jury, and there lies a bitter irony. The Home Secretary of the time, now the Leader of the House, told us that we had no need to fear as the provision would be applied only to minor, either-way offences. Serious fraud or crimes of violence would be left untouched, he said, but now the dog is being attacked from another end.
No doubt the Solicitor-General believes that he is speaking the truth when he states that the Government are not bent on the destruction of the jury trial system, but his assertions give us little confidence. Indeed, I can remember the then Home Secretary telling the House that the mode of trial Bill enjoyed the support of the Lord Chief Justice. In fact, it emphatically did not enjoy his support: subsequently, I discovered that the Lord Chief Justice had written to the Home Secretary four days before that statement was made to the House to say that he had grave reservations about the Bill and that he thought that it would lead to considerable injustice.
That causes one to have less than entire confidence in a Government who say that the judiciary are in favour of the Bill. I can tell the House that judges are profoundly against it. They have said repeatedly in private—although many have also spoken in public that they consider the Bill to be unnecessary and unworkable.
I simply concur with that and, as they say in the Court of Appeal, have nothing to add.
This Bill is part of the syndrome of legislative hyperactive disorder in respect of crime and punishment that has gripped the Government ever since they came to power. The House may be interested in the statistics. In the whole of the 19th century, this House passed 34 Bills involving crime and punishment. In the first half of the 20th century, it passed 11. Since 1950, the House has passed 67 such Bills, 27 of them in the past 10 years.
That volume of legislation is not the result of our people becoming more wicked, venal or in need of correction than they were in earlier times. It stems from the fact that such legislation is perceived as a popular—or populist—mechanism for enlisting electoral support. The mechanism is always the same: the Government create a morbid and often false fear of crime, then purport to do something about it by removing one civil liberty or another.
I could not agree more with the hon. and learned Gentleman. Does he agree that the Government’s cynicism is made worse by the amount of legislation that they pass but then fail to implement? In large part, the 2003 Act has already been repealed, much of it before it was implemented. Other parts of that Act have been implemented and repealed, and still others have yet to be implemented at all. Are not the Government guilty of legislation by headline?
There is much in what the hon. and learned Gentleman says. The Government’s approach has caused serious problems in the courts, given the uncertainty about which parts of the body of legislation are in force, when they came into force and how much is retrospective. However, I do not want to stray too far from the locus in quo, so I shall return to dealing with the indictment with which I began what is going to be a relatively short speech.
The Solicitor-General was quite right to correct me over a slip of the tongue that I made about the statistical basis of jury trials. Juries do not convict in 85 per cent. of cases but, under the jury system, 85 per cent. of serious fraud cases do result in conviction. That conviction rate is higher than for any other criminal activity. I can give chapter and verse for that statement, but we should not get involved in a barren argument about statistics. The plain fact is that juries understand serious fraud very well.
I should declare an interest, in that I have done many serious fraud cases in my time at the Bar. No one in my position has ever had the slightest doubt that juries understand such cases. The financial dealings are sometimes complex, but there is almost never any doubt about whether a fraud has been committed, only about who did it. Juries are far and away better than anyone else at deciding that relatively simple matter at the end of a trial.
Do we have a problem recruiting juries? No, we do not. The panel of jurors is rather larger at the beginning, and the people who are selected are the ones who are comfortable with sitting for between, say, 12 to 26 weeks to deal with a case. Are they unrepresentative? No, they are not. It is true that we lose a number of people whose jobs preclude them from working on a jury over such a period if time. As a result, some classes of people—disabled people, women, those who have taken early retirement or are temporarily unemployed, for example—are slightly over-represented, but are this, of all Governments, going to suggest that such jurors are incapable of trying serious fraud cases or that their involvement is undesirable? The proportion of cases in which juries convict demonstrates that they are perfectly capable of coming to a decision.
In passing, I want to mention the Jubilee line case, which was cursed from the start by poor case management. Matters that should have been dealt with before a jury was ever empanelled were dealt with only afterwards. As a result, the trial became completely unmanageable and in the end collapsed. Reference has been made to the subsequent inquiry, and the resulting document is a luminous illustration of the seriousness and brilliance with which juries attach themselves to their work.
The jury in the Jubilee line case had nothing to do with the trial’s collapse. Indeed, it could well be said that it was an early example of trial by judge alone. The jury had hardly anything to do with it: the case was tried by the judge alone, and the result was a complete disaster. Our adversarial system is wholly incapable of dealing with trial by judge alone. To suggest, as the previous Home Secretary once did, that removing the jury creates an inquisitorial system is the precise equivalent of removing the wheels from a car and claiming that one has invented a boat. The system is incapable of dealing with a judge being the arbiter of fact.
I hope that the Solicitor-General will accept the line that I am about to toss to him and intervene to assist me. I want to ask a question about public interest immunity that I could not put to him while he was making his speech, as I did not want to delay progress in the debate. In the vast majority of serious cases there are important issues of public interest immunity, which our system deals with by means of the prosecution talking to the judge and deciding what evidence should be given to the defence, and what should not. The judge can make that decision because—and this has been confirmed by Europe—he is not the judge of fact. However, a judge who determines PII applications and is then a judge of fact will be in possession of material that he will share with the prosecution, but of which the defence will have no knowledge at all. In those circumstances a conviction would last for about 10 minutes in a European Court before it was overturned—
I am grateful to my hon. and learned Friend. I have three points to make to him. First, the Serious Fraud Office does not regard the use of PII certificates as a regular occurrence in such cases, but my hon. and learned Friend is right—it might happen on occasion, so it might be an issue sometimes. Secondly, in Northern Ireland, judges sit alone in the Diplock courts and regularly have to deal with PII and other issues. A second judge is involved; they deal with the issues adequately and there is no problem. Thirdly, my hon. and learned Friend is well aware that in most European countries juries do not deal with such cases. Single judges deal with them and they do not seem to have problems with the European Court of Human Rights, so I think that his point is a bad one.
I was hoping to have an answer, but unhappily I did not; or rather, it was an attempt at an answer but, as the Solicitor-General knows, it was entirely deficient. I shall take it piece by piece. PII happens in almost every serious fraud case that is tried—certainly in my experience—so that is the end of that argument.
The second argument is that a single judge can hear PII applications, but the European Court has already said that the only reason why it endorses PII applications made to a single judge is because he is not the judge of fact. The minute he is a judge of fact, such applications will, ipso facto, offend before the European Court. For a secondary judge to sit alongside another judge dealing with PII applications would be reinventing the wheel, with one judge sitting as jury and the other as a judge. Furthermore, it is necessary that PII cases are kept permanently under review by the judge trying the case.
Finally, I do not want to give the Solicitor-General a long lecture on the inquisitorial system, the Napoleonic and other codes and how they differ from an adversarial system, because we would be here for a considerable time. However, the checks and safeguards in an inquisitorial system are wholly absent from our adversarial system, which relies on a jury to provide them.
I am grateful to my hon. and learned Friend for giving way again. I pointed out that such issues have to be addressed in the Diplock courts in Northern Ireland, where they are dealt with adequately. A great train of cases has not been taken to Strasbourg for resolution; they have been dealt with adequately. My hon. and learned Friend argues that the issues need to be resolved sensibly, but my view is that they can be, and have been, resolved.
But with great respect, not in the example of the Diplock courts—an aberrant system of justice, which came about because of a terrorist threat that does not exist. If attacks on jury trial are to be regularly defended on the basis of courts in Ireland set up by Lord Diplock in answer to a terrorist threat, the Government are making a threadbare argument.
Does the hon. and learned Gentleman agree that the problems he has been exploring relate to previous convictions and hearsay evidence, too? Since the 2003 Act, they have been used with much greater frequency. The judge has to rule as to the admissibility of previous convictions. At present, if he rules in favour of the defendant the information never goes before the jury, but in the circumstances contemplated by the Bill, he would have to put previous convictions out of his mind, which would not be very reassuring for the defendant.
I agree entirely. I have one more point to make about our judiciary.
One of the reasons why our judiciary is rightly regarded throughout the world as an exemplar and completely incorruptible is the existence of the jury system. There is no point whatever in anyone attempting to bribe or bully a criminal judge because between the judge and the individual stands the jury system, which has stood us in good stead for 800 years. I regularly visit Mother Russia to lecture on judicial independence, something which the Russians regard as we do the yeti or the abominable snowman: people have seen it—they believe that it exists—but nobody believes that it can be brought into being. I spend much time explaining that implicit in the concept of the independence and incorruptibility of judges is the jury system; it maintains judges’ fierce independence of Government or anyone else. To start attacking that system is to start attacking not fraud or fraudsters, but 800 years of British liberty.
I am sorry, but I do not entirely understand that intervention. Is the argument that we are dealing with the Judicature Acts—that in civil cases judges sit alone? If it is seriously argued in respect of the liberty of the subject that in criminal cases involving imprisonment and the removal of liberty we can move to a civil judicial system—[Interruption.]
My hon. and learned Friend is being generous in giving way to me again. He seems to be arguing that judges would be corrupted by the proposed process, but my hon. Friend the Member for Wirral, West (Stephen Hesford) rightly pointed out that judges in our civil courts are dealing on a day-to-day basis with cases that involve vast amounts of money over which two parties are arguing. Our judges have not been corrupted by having to make decisions in such cases. The idea that as a result of the Bill our judges would suddenly become corruptible is facetious. My hon. and learned Friend cannot seriously be putting forward that argument. As he rightly says, our judges are known to be incorruptible; the Bill or any further legislation notwithstanding, our judges will continue to have that reputation.
With great respect, I have to point out that the Solicitor-General does not listen to what I say, if he suggests that I am saying that as the result of the Bill, we would have corrupt judges. I said that one of the reasons why criminal judges rightly, and uniquely, maintain a reputation for being incorruptible is the existence of the jury system. It has always been implicit in our law and legal learning that one of the advantages of a jury system is that it acts as a buffer between the citizen and the judge. That is one of the reasons why it has been possible to maintain over centuries—not weeks or months but centuries—a reputation for a rigorously and ruthlessly incorruptible judiciary. I hope that the Solicitor-General now understands the point I was making. It is not a new point; it has been made for centuries and is one of the reasons for the existence of jury trial.
May I now deal with the erosion argument? The Solicitor-General has given me little confidence that the measure is not part of a general erosion. One of the reasons for that—to pick up a point made by the hon. Member for Beaconsfield (Mr. Grieve)—is the repetition of the idea that nothing implicit in fraud or juries makes the Bill necessary. What makes it necessary, we have been told time and again, is the length of time that a trial will take. And as the hon. Gentleman points out, it is not simply fraud cases that take longer than the two weeks of jury trial. I suppose, but I do not have statistical evidence for it, that the average length of a murder case in the Old Bailey is six weeks. That is not because it is complex; it is because often there are several defendants to try. That is one reason why fraud cases take a considerable time—not because they are complex, but because often there are quite a few defendants to try. And if it takes 12 weeks to try six defendants, it is two weeks per defendant. That is why such cases last as long as they do.
If there is going to be an ex cathedra statement that juries as a matter of fact should not be put to the inconvenience of sitting for more than six weeks on any trial, we are into the borderland and the hinterland of very many other cases in addition to fraud cases. If that is what is motivating the Government—and it is what the Solicitor-General says is motivating the Government—we are not simply on a slippery slope, we are on a glacial path towards the Government bringing forward legislation in respect of terrorism, in respect of long murder trials, and in respect of all trials anticipated to last for more than six weeks, all to be tried for three weeks by judge alone, with all the difficulties and problems that are implicit in that.
Does my hon. and learned Friend accept that there are those of us who lack the legal expertise of some people in the Chamber, but who have a concern about the Bill precisely because of the precedent that it may set? It is being argued that there is something unique about fraud, but as he has pointed out, the only unique thing that Ministers can point to is the length of the trial. I am worried that if the House concedes the Bill, we shall see Ministers coming back with further legislation, and large numbers of people who might never expect to be up on a charge of fraud may find themselves caught in the trammels of a system without the surety of a jury trial.
Bearing in mind my earlier intervention on the Solicitor-General, does my hon. and learned Friend accept that while some of us who are critical will vote for Second Reading—although others, such as himself, will not—we will do so on the clear understanding that we will not in future vote for any measure that would further undermine the jury system? I am sure that the Government have no illusions on that score.
I am grateful to my hon. Friend. I know that he has many concerns about civil liberties, and that the Bill is probably stretching his line almost to breaking point. For many of us it has passed breaking point, and that is not simply because it involves the hallowed principle of jury trial, but because, given the Government’s record and the way that they are presenting the Bill, there is absolutely no reason to suppose that there is a sticking point on serious fraud.
We have put in place, since 27 March 2005, a protocol that will undoubtedly shorten serious fraud cases very considerably indeed. It is a matter of great regret that the Government have not seen fit to wait and see what effect that protocol has before introducing this legislation. And I am sorry to say that the fact that they have not waited is yet another reason to believe that something doctrinaire lies behind this, rather than the particularities of the difficulties that are thrown up at present by jury trial.
I end on this note. We have a system that enjoys not only the confidence of this country, but the confidence and approbation of the entire world. We have, without a shadow of a doubt, the most revered criminal justice system in the world. It is held in far higher esteem, I am sorry to say, than the place in which we sit at the moment, and one of the reasons for that is that we are in the habit, unhappily, in the recent past of passing legislation of this sort.
Like the hon. and learned Member for Medway (Mr. Marshall-Andrews) and the hon. Member for Beaconsfield (Mr. Grieve), some of us have well and truly been here before. The arguments of both were as robust as those that they made previously, and the same will be true of mine.
This is the fifth round of this fight. The first and second rounds were fought on the Criminal Justice (Mode of Trial) Bill and the Criminal Justice (Mode of Trial) (No. 2) Bill in the previous Labour Administration; the third was fought in relation to the Criminal Justice Act 2003; and the fourth was a year ago, when the Government attempted to get into law an order under the Criminal Justice Act 2003.
I note that the issue frequently comes around in November. I also note, with satisfaction, that the Government in the end do not get their way, and I anticipate that it will be the same in relation to this Bill. Even if we do not manage to defeat it today, or on Third Reading in this place after it has come back from Committee, I do not imagine that it will have any better chance of getting through the House of Lords than similar proposals have over the past six years. Not only are the arguments weak, and not only is this—as we have all agreed so far, apart from the Solicitor-General—an attempt to undermine one of the fundamental and successful pillars of the British justice system, but the arguments in favour of this proposal have weakened further since the Government started down this road in 1979.
I agree exactly with the first proposition, and I have already started to encourage my friends in the other place. The right hon. and learned Gentleman might be encouraged to hear, in reply to the sort of question that the hon. Member for Beaconsfield was asked some while ago, that we have—
No—that we have started looking at the pieces of legislation that we would wish to be repealed, and if this legislation were enacted we would vote for its repeal in the next Parliament, when we would hope that there would be a majority for its repeal. The Government need to know that they will take the time of Parliament to pass something that will not get through this year, would get through next year only by use of the Parliament Acts, and is then likely to have an extremely short duration, even if the Government are still in office by the time the Parliament Acts could be implemented. I am very clear about that. It is not pique; it is not theology. It is evidence, it is principle, and it is argument on the merits of the case.
The one merit of the Bill, compared with the other three, is that at least it is what it says on the tin. It says that it is the Fraud (Trials without a Jury) Bill. The Government are not hiding their light under a bushel; they are saying what they want, and it is on that basis that my Liberal Democrat colleagues and I, together with many other Opposition Members—and, I hope, a considerable number of Labour Members—will oppose it both today and later.
I shall try not to make points identical to those that others have made, although there is a huge amount of common ground. I want to make the preliminary point that this is part of an approach towards government that I fundamentally object to. The idea built up over the years and centuries that lay members of the public participate as serious players in the criminal justice system—an idea that is hugely important in the law of England, Wales and Northern Ireland—is being undermined. There are three elements in that.
The first is that this is a repeated serious attempt to take lay people, not professionals, out of the process of deciding guilt and innocence in serious cases. The second, rightly mentioned by the hon. Member for Beaconsfield, is the movement—almost without announcement—to replace lay justices by paid professionals. More people are spotting this, and viewing it with increasing anger and frustration. The benefit of lay justice is that people who do other things and are properly representative of the community spend some of their time judging people in their community for lesser offences in the community. Increasingly we are seeing district judges—the old stipendiary magistrates—paid to do that job. It is a significant transition, about which many people are uncomfortable.
The third element is the movement towards removing lay people from the criminal justice system altogether by offering more and more opportunities for people to buy their way out of justice through the fixed penalty notice system, whereby people never appear before a court at all. That may be entirely acceptable for someone who parks on a yellow line, which is an administrative matter that can be visibly dealt with, and for which guilt or innocence is difficult to dispute. It is wholly different from deciding whether someone has been assaulted in a scuffle on a Friday night outside the local pub. That is the background.
May I make the obvious observation that I hope that everyone would expect us all to make? Nobody in the House underestimates the importance and seriousness of fraud and no one wants serious fraudsters to go free. We all acknowledge the importance of the work of the Serious Fraud Office, the Crown Prosecution Service and the police service in bringing people who commit serious fraud to justice. It is every bit as important, if not more so, than dealing with those who commit smaller frauds. Serious damage can be done to individuals and their lives by those fraudsters, and we want to bring them to book.
One interesting aspect of today’s debate is that we have had an opportunity to look at what has happened since the Criminal Justice Act 2003 was introduced and assess whether this remains as valid a proposition for the Government to advance. I have a simple set of tests as to whether we need to return to this territory, and I am led to the clear conclusion that we do not. I have not heard the Solicitor-General or any other Labour Member argue that under the present system, we have suddenly seen a great increase in acquittals and a great reduction in convictions.
I think that it would have been equally necessary. The burden of all the evidence is that what we need to change is the process and the procedure—the organisation, management and investigation of cases of serious fraud, not the way in which they are tried. All the evidence leads me to that conclusion, and I hope that it would lead the hon. Gentleman to the same conclusion. He will know that there have been several reassessments of the evidence.
In sequence, the first was the protocol, issued in March 2005 and referred to a few moments ago by the hon. Member for Wirral, West (Stephen Hesford). Secondly, a Bar Council report at the beginning of this year looked into the problem again, and was robust in its clear view that other matters were more important than changing from jury trial to judge-only trial. Thirdly, the Solicitor-General made a statement to the House—originally given by the Attorney-General in the other place—in July this year, after the Jubilee line case acquittal, announcing various proposals that amounted to the lessons learned from it. We have thus had three initiatives—two formal initiatives connected with improving the procedure, and new criminal procedure rules.
We also await a final announcement of the Government’s recommendations arising out of the cross-governmental review. One proposal is to have a financial court, which could consolidate good practice and employ practitioners suitable to the task. The Government have already conceded that High Court judges are the most appropriate for these cases, and there are strong arguments for using judges with sufficiently high qualifications to deal with them.
All the movement has been in the direction of improving procedures and no one has argued—although implicit suggestions may have been made to that effect—that changing the basis of trial from jury to judge would increase the rate of convictions. If that argument is going to be used, it risks becoming an argument that juries are not suitable to judge guilt or innocence generally. As was said about health and safety cases, and as applies in many other cases, there is no evidence that the issues of honesty or dishonesty are more difficult for juries to understand in fraud cases than in modern cases involving computer and other IT evidence.
I do not know whether judge-led trials will lead to an increase in the number of types of trials that lead to convictions—we shall have to wait and see how that evolves—but I think that we may well see more people convicted, albeit not for that reason. There is no contradiction there. The reason is that the full culpability of a case can be looked into, and some people who might have dropped off as defendants because of the complexity of the case will no longer need to be dropped off. They can be put before the judge. We may see further convictions as a result of that. It is also the case that a broader range of evidence can be put before the judge—probably more charges and more on the indictment—so we are looking at dealing with the full culpability of a case in a single trial, rather than severing it, dropping people off the end and having merely sample counts.
I can understand that argument, but I do not think that the prerequisite is to move from jury to judge-only trial. I think that the prerequisite for achieving what the Solicitor-General wants is to change procedures along the lines of the changes already made. My strongest argument against the Government on the procedure is to say that we have had three years of reviewing procedures and a year and a half since the new criminal procedures were introduced and the protocol was announced by the Lord Chief Justice. We have just enacted the Fraud Act 2006, though it is not yet fully in place. As the hon. Member for Beaconsfield said, we enacted the Domestic Violence, Crime and Victims Act 2004—to give it its full name—in which there is a different process. There is a procedure for dealing with certain parts of someone’s alleged criminality, such as severing or taking sample counts, at one stage and getting the rest dealt with later.
It must be logical to let those changes work through the system. It must be logical to let the Fraud Act 2006 come into place. It must be logical for the Government to announce the results of the intergovernmental review, which might produce a proposal for a financial court. It would then be possible for what the Solicitor-General reasonably argues should happen to happen—for other defendants or other charges to be added to what can be presented to the court. It has never been the case that in non-fraud criminal trials, every single count has gone on the indictment. The reality, as assessed, is that many charges have been put to one side and there has been a conviction on the substantive charges. Pleas or other considerations can then either be taken into consideration or not. It is the same with serious predatory sexual offenders. They are not fully charged, in order to avoid the horror of bringing everybody to court to give evidence. One selectively charges, and convicts. That is enough to give a jury the evidence and to give the person a serious sentence at the end of it. I understand the objective, but the changes already initiated, the changes announced but not yet implemented and the changes yet to be considered will all provide that opportunity.
Did the hon. Gentleman draw from the Solicitor-General’s recent intervention the suggestion that cases are not being prosecuted because they would have to be pushed in front of a jury and therefore are unlikely to reach a satisfactory verdict as far as the prosecution is concerned? Surely if there were any mileage in that, and if there were any substance in the Government’s arguments, they would have come forward with evidence to show that the Serious Fraud Office or the Crown Prosecution Service had not prosecuted in some cases because they did not think that they could get them across to a jury. We have not heard any such evidence.
Indeed not. The system is clear. We have annual reports from the Serious Fraud Office. It reports on not just what it does, but how successfully it does it. It can ask for extra resources. It is a relatively new organisation. I have heard nothing to suggest that it regards the failure to achieve a higher success rate than the 56 per cent. we heard about, or the 80 per cent. on the basis of the other count, or other things, as due to the jury system. That is not the case.
The hon. Gentleman may also wish to ponder the point that the Law Officers and prosecution authorities, in considering the test of whether to bring a prosecution, make a decision on the basis of whether a jury, properly directed, will convict. We have not heard from the Solicitor-General—we might hear at the end—whether that test will be altered for trial by judge alone. On the face of it, it is embedded in our constitution—and I do not see how that test squares with the system that the Government are trying to set up.
I was going to make just that point to the hon. and learned Member for Harborough (Mr. Garnier). Under our system, the police investigate and collect the evidence, which is then looked at by the Crown Prosecution Service. It has to comply with two tests in every case. The first is whether there is a better than 50 per cent. chance of conviction before whichever tribunal it is—it would normally be a tribunal with a jury, by definition. The second is whether it is in the public interest. Those tests are not varied or altered. They are the tests that are applied.
I am sure that the hon. Gentleman will be aware that the vast majority of trials in which the prosecution have gone through the procedure to make a judgment to prosecute are not conducted before a jury at all, but in the magistrates court. The direction is therefore quite proper, and will be able to stand.
I was trying to deal with the substantive point, rather than the supplementary point made by the hon. Member for Beaconsfield. Of course more than 90 per cent. of all criminal trials take place, as we know, in magistrates courts. However, the principle of the justice system is that serious charges go before a jury of one’s peers.
I share the view expressed around the House that in the intervening period we have had a tokenistic consultation, which was only a consultation afterwards—in terms of how it was defined. It certainly did not honour what I understood was the undertaking made by the then Home Secretary to me across the Floor of the House in November 2003. There have been constructive discussions and constructive ideas have been put to Law Officers by the Conservative party and by me on behalf the Liberal Democrats, but they have not been responded to. We are where we are because there is a fundamental divide when it comes to the question, “Are you in favour of jury trial for all these cases or not?” That is not going to be changed.
Why should those of us on this side of the argument stand our ground? First, because there should be one form of trial for serious offences and one form of justice dispensed, for reasons that many people have given. A judgment by a single judge, with written reasons, for certain cases and a judgment by a jury, on the basis of guilty or not guilty, are different forms of justice. There is no logic to say that one person who has committed an offence should have a different form of justice from somebody else.
The reality is that, however great the integrity of the judge, there will be suspicion. The more cases there are in which somebody is the judge of both the fact and the law—going in and out of all the questions about looking at documents and rejecting them, and rejecting evidence—the more cause for suspicion. There will be cause for suspicion where at the moment there is none. People know that all the evidence that is to be used to decide guilt or innocence will be seen or heard by the jury, and by everybody else in the court.
Secondly, I have argued for many years, as have many people on the Liberal Democrat Benches, for votes of equal value in all parts of the country. This issue is about verdicts of equal value in all parts of the country. The principle is important. A verdict by a jury is much more conclusive, much more commanding of public confidence, and much more likely to stand and not be the subject of a considered appeal, than verdicts by judges alone.
Thirdly—this point has been well made elsewhere—it is highly unacceptable that the professionals will be tried by the professionals, and the white-collar offender by the white-collar professional judge. That is not an acceptable way of dividing the way in which society administers its justice. It is the professionalisation of the justice system. That is against all our tradition, which has been very successful.
Fourthly, to be blunt, there is much more confidence in juries than in judges. That is not because judges do not do an excellent job, but because the public trust their own. The most logical reason is this: in a jury, at least 10 people have to come to a view that the person is guilty. That is a much more satisfactory outcome than one person coming to a view that somebody is guilty. That is better not just for defendants and the public, but for judges. The answer to the point made by the hon. and learned Member for Medway (Mr. Marshall-Andrews) that was being disputed—about saving judges from being the subject of any sort of corruptibility risk—is that jurors in long trials will do only one jury trial. They will be exempt for the rest of their lives and will not come back again. There is no point in their being a target, because they are not likely to be put in that position again. The same does not apply to judges. The situation is entirely different from that which applies in a civil case, where the same sort of people will not be enmeshed in the same sort of risk of losing their liberty for a long time.
Above all, there is no evidence that the system is quicker or that the verdicts are more accurate. If the Solicitor-General had been able to show that since the Government first wanted to go down this road in 2000 or 2001, all the evidence had come in their direction—if he had been able to say, “Look at the percentage of cases that have failed. Look at the percentage of cases that the Serious Fraud Office has said it hasn’t been able to deal with,”—there would have been a case. If there had been reports commissioned by the Government that said that the Jubilee line case collapsed because the jury did not understand it or did not get the whole picture, or if the jurors had said, “Terribly sorry guys, but it was all beyond us,” or, “We didn’t think we were getting the whole picture,” there would be new evidence. However, there is no new evidence. Indeed, the evidence has been going in the opposite direction.
Although the Liberal Democrats believe that this may not be a general attack on juries—I accept what the Solicitor-General says about that—it is a specific attack. It is what my hon. Friend the Member for Somerton and Frome (Mr. Heath) calls, “one specimen count”. If we let the specimen count stick, the danger is that the Government will find arguments for saying that long cases and cases of a certain complexity should be passed over to the new system. There is a logical progression—and that is a dangerous road to go down. Of course, we cannot say that that is what will happen, but it is impossible to resist the argument that it could happen, once the link is broken. It is the law of attrition. The movement becomes difficult to resist. That is why we have to stand our ground where we are.
There is a strong constitutional tradition in this country that we depend on a robust Parliament with independence from the Executive—and robust judges, lay magistrates and juries that are independent of the Executive, too. On these Benches and elsewhere, we will defend the jury system. We believe that it works well, and with the new procedural changes it will work even better. The new improvements should be seen, tested, reviewed and allowed to take their time. In a few years’ time Ministers will not have a case to argue, because necessary changes will have been made. It is not a necessary change to replace jurors—representatives of the great British public—with professional judges, and thus to change the whole nature of the way in which some people are tried, and tried entirely satisfactorily.
I will try to juggle my parallel arguments at the same time, Mr. Deputy Speaker.
First, I want to deal with the serial bad points made by Opposition Members. The point made by the hon. Member for North Southwark and Bermondsey (Simon Hughes) about the Lord Chief Justice’s protocol does not work—the House and the other place will want to take note of this—because, although there is a point of principle about protecting the jury system, all the points that we are hearing are the same ones that were made before the protocol was ever even dreamed of as a safeguard. The protocol cannot be prayed in aid of the arguments that hon. Members have been making over the years. The House rejected those arguments; if it had not done so, we would not have section 43 of the Criminal Justice Act 2003. The hon. Gentleman makes a hollow point because the two things are not connected.
We have also heard the hollow threat of repeal—a cheap political point about a stage in the future that will not come about because Labour Members will not have to relinquish responsibility for these matters. We will thus not have a short-term measure. That cheap party political point was on a par with many of the cheap points that have been made today.
There is no new point of principle here. The House has withdrawn people’s right to a trial by jury when charged with certain offences over the years. When I was a young law student, I read that there was a right to a trial by jury when drink-driving was first introduced. For reasons of administrative justice, that right was taken away by the Conservative Government of the 1970s. There is thus no new point of principle about withdrawing the right to a trial by jury for certain offences.
My hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) made a thoroughly bad point about the corruptibility of judges, which the Solicitor-General and I showed to be ridiculous. I think that my hon. and learned Friend the Solicitor-General said that it was facetious—and it was. The point was not worthy of debate.
We should add all the points that have been made together. I was taught as a very junior member of the Bar that if one has a series of bad points, putting them all in front of a tribunal will not make any of them any better, but just weary the tribunal. I argue that there is no new point of principle.
As a new Member, I will focus on the present. If we put to one side the fundamental points of principle, can we deal with the matter of practice? Since the criminal procedure rules were put in place, where is the evidence, from a relatively small number of cases, that there is a real need to change what many of us consider to be a fundamental principle?
The hon. Gentleman makes the same intervention as he made on the Solicitor-General, so in that sense he is consistent. The argument for reducing the right to trial by jury in these few serious fraud cases, which was made in and accepted by the House, remains as it was in 2003. There has been no change. The argument was made then and the House made a decision. The only thing that we are deciding today is whether the House and the other place will allow us to bring the measure into force.
My hon. Friend mentioned a point that I made. I am sorry to say that I do not know the discipline in which he practised the law. If he had practised in crime, he would know that when one deals with criminals, one deals mainly with men—and some women—who are sometimes of great violence and great desperation. Such men will do almost anything to obtain an acquittal and are sometimes capable of deploying large sums of money. When we discussed the provisions of the 2003 Act that allowed for judge-only trials in cases in which juries were nobbled, we were told that that activity was frequent and dangerous. If there is a judge-only system, attempts will undoubtedly be made to bribe, bully and cajole judges. Such attempts are not part of our system. I am not saying for one moment that the vast majority of judges will be open to that, but they will be exposed to it. One of the huge benefits of our system is that they are not exposed to such activity. If a judge sitting on his own acquits someone and it looks to the press as though there is a substantial body of evidence, suspicion is bound to grow. At the moment, that is wholly unknown in our system, but there are judges in our system who might be corruptible. If my hon. Friend does not understand that point, he flies in the face of judicial—
I was suggesting to the hon. Member for Wirral, West (Stephen Hesford) that if he thinks that the point made by the hon. and learned Member for Medway (Mr. Marshall-Andrews) is of little value, rather than insulting the hon. and learned Gentleman, perhaps he would condescend to argue against it, rather than grandly saying, “I’ll leave it where it lies.”
I am sorry, but I have already dealt with the point.
A further bad point was made about a single judge dealing with the criminal burden of evidence and proof. It was suggested that somehow the instruction to deal with evidence that a jury gets could not be applied to a single judge. As the Solicitor-General said, it is applied in the Diplock courts. It is applied in civil jurisdictions, where judges apply not the civil standard of proof in serious civil cases involving allegations of fraud and the like, but the criminal burden and standard of proof. My hon. and learned Friend the Solicitor-General also made it clear that the paid magistracy—deputy judges in the magistrates court—apply those principles all the time and deal with 98 per cent. of criminal cases. The idea that a High Court judge could not deal with fraud cases appropriately is ridiculous. It is just another example of the serial bad points that are being made.
I have been wanting to raise a matter about Diplock courts for some time. When they were debated, it was said repeatedly that the practice of Diplock courts would never be used as a Trojan horse to extend the concept of trial by judge alone. Why are they now being brought up in such a way?
As I mentioned Diplock courts, perhaps it is best that I deal with the point. My hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) suggested that we would have a European Court of Human Rights challenge and be in difficulties with this procedure if public interest immunity certificates were an issue in a case. I pointed out that that issue had been dealt with in Diplock courts. I was not suggesting that Diplock courts were a Trojan horse for this measure—far from it. We are looking at the possibility of moving from such courts. My hon. and learned Friend made a point on the law; I dealt with the point on the law and I did so effectively. He did not, in his response, do anything more than make a general attack on Diplock courts. He needs to deal with the legal point, which is a different one.
I agree with the Minister, who has dealt with the point.
The second part of my speech is about the effect of what we are doing today and the reason why we are doingit. In an intervention on the hon. Member for Beaconsfield (Mr. Grieve) I suggested that one reason has to do with case management. The hon. Member for North Southwark and Bermondsey in effect adopted that point in what I consider to be an erroneous argument. However, he emphasised for me the point that the provision is part of a package for the proper prosecution of fraud cases. Nobody in the House is not fully behind the idea that what we seek, in the House and in the courts, is the fair and proper prosecution of serious fraud cases.
I have resisted intervening until now. Does not the hon. Gentleman accept that we cannot judge the effect of the changes that have already taken place in management, the changes that are not yet in place but have been agreed, and the changes that have been considered but not yet announced, until some years have passed and we have seen the results? It is ridiculous to suggest that we need something else when we have not had a good run at looking at the benefits of the changes already in the pipeline.
The hon. Gentleman misapplies himself to the Government’s developing agenda. If the measure comes to pass, as I sincerely hope it will, in a fraud case where the prosecution have made an application to have the matter dealt with by a single judge, the judge will have in front of him or her all the points mentioned by the hon. Gentleman—the protocol and so on—so that he or she can decide whether the case should go to a non-jury trial. If, on all the evidence, there is no reason for a case to go to a non-jury trial, it will not. As I understand the Government’s case—the Minister will tell me if I am wrong—this provision is an option, not an automatic procedure. I am obliged that my hon. and learned Friend comforts me with a little nod. As with any procedure, that judgment will be subject to appeal in the Court of Appeal, which can determine whether the judge has exercised his or her jurisdiction correctly, so there is oversight. This is a way of better enabling the prosecution to manage serious cases.
I will not repeat all the points made by the Minister, but what I find attractive is the fact that if the Bill is passed it will act as a deterrent against white-collar crime. We seek to minimise such crime and improve access to justice in such cases in our courts. My hon. and learned Friend was, for understandable reasons, slightly more circumspect than I must be, but I believe that the Bill will result in more guilty pleas. I believe that it will effect a better balance of justice than the current system. The Minister argued that more cases will be brought because those on the periphery of cases will be brought back into the picture.
One thing that has marked the approach to crime of the Opposition and the Liberal Democrats since 1997, when I came into the House, is their lack of support, time and again, when we try to legislate to make the criminal justice system more effective on behalf of the people whom we represent. I pointed out to the hon. Member for Beaconsfield that we had crossed swords on a number of such Bills over the years. I have to say that the Conservatives’ approach—not necessarily that of the hon. Gentleman—has always been one of trench warfare. We are trying to rebalance the system so that it is fair and it does the job on behalf of our constituents.
I clearly remember that the Proceeds of Crime Act 2002, which has toughened up the process and made it more usable in the courts, was fought at every opportunity by Opposition Members. In that case the Government were trying to get at the assets of those engaged in serious crime—which involved huge sums—and cut down on such criminality. In this case, too, we are talking about cases involving huge sums. Whether or not the Opposition intend it, the effect is the same—their so-called defence of principle is in fact a defence of those engaged in serious white-collar crime. [Interruption.] There are groans on the Opposition Benches, but I am afraid that that is the effect. Opposition Members have to decide whether they want to prosecute those involved in serious crime. I believe that these measures will help to do so.
Unless my hon. and learned Friend has gone over to the Opposition Benches, I was not talking about him; I was talking about the Opposition.
In the academic, purist argument advanced by the Opposition, it is suggested that such cases are victimless crimes, and that it does not matter whether case management or the proper prosecution of such crimes is seriously considered. However, missing trader fraud, for example, is a serious attack on VAT revenue. Classically, that is a type of fraud that might be prosecuted under the Bill. The Revenue must send out a clear message that we will prosecute such crimes, and that we take seriously any attack on the VAT system. Opposition Members give the game away when they say that the Bill is some sort of revenue exercise. Does the hon. and learned Member for Harborough (Mr. Garnier) wish to support the proper collection of VAT and the proper protection of revenue, or not? Apparently not.
The Bill has a fine legal tradition behind it. Lord Roskill came up with similar proposals, and Lord Justice Auld dealt with the same issue and made similar representations. The proposal is not one that the Government thought up by themselves, and prepared on the back of an envelope. It is part of a serious legal tradition.
My hon. Friend is quite right. There is a serious history of such proposals, and eminent judges have made reports on the matter. Since the passing of the Criminal Justice Act 2003, there has been further evidence of the importance of introducing such a measure. I referred to cases that had to be severed. In the Talbot village trust case, completed in 2004, the trial judge had to order the prosecution case to be reduced for management reasons. Again, in the Versailles case of 2004, which involved Cushnie and others, the judge ordered three counts against one of the defendants to be severed in the interests of trial management. Finally, in the Global Wildlife Trust case in 2005, the prosecution had to limit the size of the case.
Opposition Members have asked Members on the Labour Benches, collectively, to produce the evidence, but when my hon. and learned Friend the Solicitor-General talks about the evidence since 2003, the Opposition do not want to hear it, and instead come up with a spurious point of order. My hon. and learned Friend makes the good point that since the 2003 Act, the same pattern of error in the presentation of fraud cases has continued, as has the same pattern of complaint from senior judges. That was my point. My hon. and learned Friend reinforces those points, which concern those who try to deal with such cases daily.
The hon. Member for Beaconsfield said that the mismanagement of cases never had anything to do with the jury, but that is completely wrong. One of the reasons such cases often cannot get off the ground is that the considerations of how to manage them with a jury sometimes defeat that object. My hon. and learned Friend the Solicitor-General convincingly made the case that if such large cases were dealt with by one tribunal considering all the charges, at one sitting, the criminality could be dealt with satisfactorily. That is one reason why my hon. and learned Friend introduced section 43 of the 2003 Act, and why he has brought the Bill before the House.
This short Bill deals with the will of Parliament. It is Parliament’s will that section 43 should be on the statute book, and it is Parliament’s will that we should, at least in principle, allow a High Court judge to consider whether a handful of serious fraud cases could be better managed under the system that we are considering. I support the Bill, and I look forward to the proposal being available to the criminal justice system and the Serious Fraud Office.
The hon. Member for Wirral, West (Stephen Hesford), who has just spoken for 25 minutes, reminds us of the will of Parliament. It is worth reminding him that the will of Parliament embraces the will of both Houses, not just this House. A little bit of modesty might be in place from him, because in the other place there are many Members who have a great deal of experience, both of practising in the courts and of presiding over trials. We need to remember that the other place has robustly refused to pass the measure, and has made it wholly plain that it will not pass it. When we speak of the will of Parliament, let us actually face the fact: we are talking about the will of the Executive, who will rely on a three-line Whip to force through a profoundly illiberal measure. To repeat what I said to the hon. Member for North Southwark and Bermondsey (Simon Hughes), I very much hope that the other place will stand firm on the matter. If it is to be threatened with the Parliament Act, so be it. I hope that it will not pass the measure at any time, so that it will have to be forced through by the Parliament Act.
We have been reminded from time to time that the issue has previously been addressed by reviews, and that is perfectly true. It was addressed by Lord Roskill, and by Lord Justice Auld only a few years ago. Let us remind ourselves, too, that neither review recommended the measure that is before the House. It is perfectly true that Lord Justice Auld said that there could, in serious and complicated fraud cases, be trial by a judge alone, but only when the defendant so elected. In fact, what he said was that in the generality of such cases, the trial should be by a judge alone, with a special panel of lay assessors. Incidentally, that was the view of Lord Roskill, too. Let us be wholly plain: the measure suggested today is quite beyond those advised by any expert commission. The measure was wholly rejected in discussion in the other place, and has very few friends in the Chamber today.
I would give that proposal serious consideration, but in the end, my answer would be no. I am in favour of jury trials, and I shall come to my reasons for that later. I begin by defining the questions that I shall ask of myself and the House. My first question is whether there is anything inherent in jury trials that makes that form of trial inappropriate for complex and lengthy fraud cases. I wish to find out both whether such cases cannot be tried by a jury, and whether juries cannot try such cases. My second question is quite different: are there arguments of principle that should cause us to say that jury trial should be retained? If the answer to that is yes, I shall ask a third question: are there any practical arguments that reinforce the view that jury trials should be retained? Those are the three questions that I wish to put before the House.
First, I wish to consider whether or not a jury is capable of properly trying a complicated fraud case or, to put it differently, whether a complicated and lengthy fraud case should not be put before a jury. I have some personal experience of the matter, although not as much as the hon. and learned Member for Medway (Mr. Marshall-Andrews). He is modest about his achievements, but there are few barristers with his experience in this field—I certainly do not presume to claim for one moment that I have such experience. His views are the fruit of years of trial practice, and they deserve serious attention. I have less experience but, in the past few years, I have taken part in two long fraud cases, both of which lasted more than 40 days, so I am familiar with the matter. In the other place, there are many Members who have much greater experience than me, and the majority of criminal practitioners, both solicitors and barristers, share my conclusions.
Is there anything about fraud trials which means that they are not a proper subject for jury trial? The Bill asks us to consider the proposition that fraud cases are too burdensome for juries, because they are too complicated and sometimes long, so jury trials are inappropriate. The Solicitor-General shifted his ground on some issues, but he told us that he does not seek to assert that fraud trials are too complicated for juries, because they cannot manage the evidence. I share that view. Having dealt with fraud cases, I have come to the positive conclusion that juries understand full well the nature of the evidence. As my hon. Friend the Member for Beaconsfield (Mr. Grieve) pointed out, in the Jubilee line case, members of the jury went out of their way in interviews to stress the fact that they were fully conversant with the evidence, notwithstanding the fact that many months had elapsed since the evidence was given.
We can therefore start from the robust assumption that juries are perfectly capable of understanding complicated evidence. That is jolly lucky, because many other trials involve complicated evidence. Trying to understand DNA evidence is not easy. Understanding lengthy phone schedules is not easy, and neither is understanding ballistics. Studying some blood samples is not easy, yet those are things that, time and again, juries are called on to resolve. I therefore have no time for the argument that such things are too difficult for jurors. As for the length of trial, it is perfectly true that it can be a problem, but I remind the House that jurors can be excused if they can provide a good reason. In the Jubilee line trial, the jurors were ready to sign up for a six to 12-month stint. I do not accept that it is impossible to empanel a jury, or that it is too burdensome to do so.
Questions of complexity and length are not confined to fraud cases—an issue to which I shall return. Time and again, they arise in serious crime. Terrorism and conspiracy are a case in point, as are multi-handed murders, to which the hon. and learned Member for Medway referred, and affrays. Such trials can go on for months and months. Once we accept the proposition that an excessively long trial cannot be heard by a jury, we assert a principle that will destroy our civil rights.
Secondly, are there issues of principles that should lead us to conclude that jury trials should be retained? I am in no doubt about the matter, as I am wholly persuaded that major issues of principle are at stake. I am quite certain that public respect for law is based on the belief that at the end of the day serious trials are resolved by juries. If our liberties are taken away, we do not want them to be taken away by a single man or woman sitting alone. For many people, there is a huge gap between the defendant and the judge, who often appears to be part of the establishment or an instrument of the state who does not sympathise with ordinary people’s lives. If we allow judge-only trial, a gap will open up between the citizen and the judiciary, and between the citizen and the state.
A further unusual consideration is the perverse verdict. There are cases in which the guilt of the defendant is established beyond doubt by the overwhelming weight of evidence, yet the jury chooses to acquit. It can exercise that important safeguard for various reasons. For example, it may consider that the state is acting oppressively, as in the Ponting case. It may consider that a conviction would be wholly unfair, as in cases of mercy killing. It may consider that a trial and its consequences are disproportionate—I draw attention to road traffic legislation, and the fact that death by careless driving attracts a maximum penalty of five years. The possibility of a jury making what is technically known as a perverse verdict and refusing to convict in such cases is an important safeguard that defends the liberties of all. Arguments of principle are therefore in play.
We should consider pragmatic arguments, too. The hon. and learned Member for Medway asked some important questions that were not resolved by the Solicitor-General. The points that he made about public interest immunity were quite correct, and there is no sensible answer to his anxieties. If he will forgive me, I will develop his argument. At the moment, in a trial by judge and jury, the judge judges the law and the jury judges the facts. In long cases, when points of admissibility arise, submissions are made to the trial judge on previous convictions, hearsay evidence, alleged confessions and so on. The judges makes a ruling on the admissibility of those issues. If he decides in favour of the defendant, the jury will never know of the previous convictions, the alleged confessions or the hearsay evidence. Once a judge sits alone, he is called on first to make that ruling. If it is adverse for the defendant, the information is taken into account. If he makes a ruling, which he may be driven to, favourable to the defendant, he still knows the previous convictions. He still knows the hearsay evidence. He still knows the alleged admissions. The trial judge will say, of course, “It will be put out of my mind”, but how reassuring is that in any real sense to a defendant facing a serious charge?
I know full well that that situation arises in tribunals. My hon. Friend the Member for Woking (Mr. Malins) sits as a deputy district judge and he has to come to exactly such a decision. He will forgive me if I say that the cases in which he presides do not attract very long prison sentences. It is a problem, it has always been a problem, but it is mitigated partly because the sentences are not so long, with a right of appeal to the Crown court, and partly because in many cases there is more than one judge sitting on the tribunal—for example, lay justices. It is an inherent problem. Whether or not it infringes the European convention, now incorporated into domestic law, is a matter for another discussion, but it goes to the quality of the justice that will be administered.
I shall make one final point and then my conclusion. Case management powers were again touched upon by the hon. and learned Member for Medway and referred to by his hon. Friend—if that is not an inappropriate word in the circumstances—the hon. Member for Wirral, West. There has been a huge change in recent years in the judicial powers of the court to regulate what can be done in trials. It is now much easier for the judge, especially when working in association with a co-operative prosecution, to ensure that indictments are not too long, that counts are carefully focused, and that the evidence is confined to that which is truly relevant. These considerations and the case management powers will help over time to deliver the objectives that many on the Government Benches seek to advance in support of the Bill.
To conclude, I feel very strongly about the Bill. I believe that it is part of a campaign by the Government systematically to undermine the protection which the law of England has afforded its citizens for hundreds of years. When they come forward and say that it is not part of an attack on jury trial, I recall the Criminal Justice (Mode of Trial Bill and the Criminal Justice (Mode of Trial) (No. 2) Bill, which we have had cause to consider. When I consider their protestations that they wish to rebalance the criminal law as between victim and defendant, I bear it in mind that many defendants are innocent people, or at least persons against whom there is not sufficient evidence. I call to mind the Criminal Justice Act 2003, many parts of which are a serious infringement of civil liberties.
I am extremely hostile to any attempt by the Government to diminish civil and legal rights, so I am against the Bill in principle. It is not necessary, for the reasons advanced by my hon. and learned Friend the Member for Medway. Juries are perfectly capable of dealing with both complexity and length. There are issues of principle here engaged. There are arguments of pragmatism here engaged. Collectively the House should give a resounding no to the Bill. If it is forced through, as I have no doubt it will be—on a three-line Whip—by people who have not attended the arguments on the matter, the other House must stand firm. If the Government want to use the Parliament Act to pass through an authoritarian and disgraceful measure, so be it. That will be in keeping with this Government.
I begin by declaring an interest as a Crown court recorder and as a part-time district judge. I associate myself entirely with the words spoken by the hon. and learned Member for Medway (Mr. Marshall-Andrews) and by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg). I bow to the expert legal knowledge built up over so many years by both of them. All of us would do well to heed their arguments. I only wish that more than one Member who supports the Bill was present on the Government Benches to listen to what the hon. and learned Member for Medway said.
The hon. Gentleman has made his contribution. I shall go no further.
I agree wholeheartedly with two points made by the hon. and learned Member for Medway. First, we have had far too much legislation in the field of criminal law in the past few years. Judges with whom I sit and to whom I talk are baffled by the volume of legislation, most of which is intended purely to get a headline and half of which is never implemented. It gets worse by the day. Secondly, the hon. and learned Gentleman rightly pointed out that none of the judiciary see any merit in the Bill.
The Bill is short, containing only four clauses, but it is massively important not just because of its contents, but because of what it might lead to in the jury system in future. I suppose that at first sight the Bill might not seem controversial. On the surface, the Government seem to be saying: “Some fraud trials are terribly complex and some are terribly long. Wouldn’t it be simpler if in a handful of cases, perhaps only half a dozen a year—nothing to worry about—there is a provision for the trial of such a fraud case to be heard by a judge alone. Wouldn’t we save a lot of time and grief?”
On the face of it, that approach is quite alluring, but let us look a little more carefully. The Government’s arguments do not stand up to proper scrutiny. My right hon. and learned Friend the Member for Sleaford and North Hykeham dealt with this very well. If the issue is one of complexity, would not Labour Members accept that not only fraud trials are complex? Earlier, I gave the example of a drugs trial in which I was involved years ago, which bore all the hallmarks of the complexity that the Solicitor-General argues should lead to a judge-only trial. It involved hundreds of thousands of documents and financial dealings all over the world, yet under the Government’s provision that complex case would not be subject to a judge-only trial. My hon. Friend the Member for Beaconsfield (Mr. Grieve) made the excellent point that health and safety cases in which he has been involved have been just as complex as any fraud trial could be. If the issue is one of length, then surely we should be focusing on case management to shorten cases.
If those are weak arguments for the Government to advance, I have concluded that it is essential for this House to vote against the Bill for a different reason—because I am convinced that it is yet another step along the road that this Government wish to travel, leading in due course to a massive reduction in jury trials throughout our criminal justice system. It continues a shift of power away from the people and fits neatly with the Government’s desire to move power nearer to the centre, based on a presumption that the state or its appointed officers know much better than the people.
If we could be absolutely certain that no more than, say, six complex or lengthy fraud trials a year would be handled by a judge alone without a jury, we might just be satisfied, but we cannot be certain. Let us consider what the Solicitor-General said earlier. When I mentioned the complicated drugs case, he used the phrase, “We have no plans at this stage.” Later on, in response to another intervention, he said, “We have no plans.” Previously, unless I misheard him, he had said that the Government have “not ruled out” extending the proposals. So we have a Government who talk about half a dozen cases a year and a Minister who has more or less made it plain to the House that it is at the back of their mind to extend the principle beyond complex and lengthy serious fraud cases to other cases altogether.
Looking back on the Government’s attitude to jury trial over the past few years gives greater strength to our feelings that they may yet go further. This is the Government who some years ago introduced measures that would have given the courts, not the defendant, the ultimate decision on where cases were to be tried, thereby taking rights away from defendants—the Government who had the gall to say that they were convinced that the courts, rather than defendants, were best qualified to reach a view on the best venue for a trial. That smacks of a conceited “We know better than you” attitude—scant concern there for the rights of the individual.
I think that I heard the Solicitor-General say—I could hardly believe it—“Juries are right for some cases, but not for others.” That kind of comment makes me think that we have a Government who are saying in terms, “Now listen: we’re not going to bother any more with the rights of the individual to select trial by his peers—his equals, other members of his community. We’re not bothered about that—we’re more concerned with our own view as to what is right for a particular defendant.”
If we concede the principle that complex or lengthy fraud cases should be tried by a judge alone without a jury, the Government’s next step might be to try to widen that principle to ensure that all serious offences, for example, could be tried only by a judge alone. Gradually, they could whittle away the whole principle of trial by one’s peers. There is a risk that, if this trend continues, jury trial could disappear from our system altogether. All this is happening at a time when the real problem facing the people of this country is the inability of the police to detect the crimes, and to be on the streets to catch the criminals and bring them to court. Frankly, on any list of the public’s priorities relating to the criminal justice system, the need for fraud cases to be tried by a judge alone would be right at the bottom.
The hon. Gentleman is making a powerful speech. The jurisdiction that is said to have the best record of prosecuting fraud effectively—the United States of America—is also one that the Government adduce as an exemplar to this country for dealing effectively with white-collar crime. Does the hon. Gentleman acknowledge that the United States has no problem with jury trials for complex fraud cases, as was evidenced by the Enron trial?
The hon. Gentleman is absolutely right, and his intervention gives me the chance to pay tribute to him and his colleagues for the way in which they have stood up for the protection of civil rights over the years.
We all know the advantages of a jury, but let me just mention one or two. First, they temper legalism by their sheer common sense. There also is immense value in having a real participation in the administration of justice by ordinary citizens. The random nature of jury selection ensures that they are utterly fair and independent. In fraud cases, the issue is nearly always dishonesty. Who could be better than a jury to judge the issue of dishonesty? By reason of their number, their mix and their experiences of the world outside the court, they are surely better equipped than a judge alone, no matter how able the judge might be, to access the reliability and credibility of a defendant and of witnesses.
My hon. Friend is making a most interesting and cogent argument, and I am completely convinced by what he is saying. Does he agree that another problem that we have to face in our courts is that justice must be seen to be done? The words, the terminology and the arguments must therefore be put forward in a comprehensible manner in order to include the jury, and the defendant is therefore also fully equipped with the facts in the most understandable way.
My hon. Friend is absolutely right. The jury is an integral part of the whole principle of justice being seen to be done.
It is also a very good thing that juries are not lawyers. They are not paid by the legal system; they are not beholden to it, and they are not part of the state. That is a huge advantage. If Ministers want to understand the real value of juries, all they need to do is travel to other countries and talk to some of those involved in the administration of justice abroad. Inevitably, those people will say how much they envy the British system of trial by jury. It must not be tampered with.
Juries are also anonymous, as the hon. and learned Member for Medway mentioned earlier. That is a huge advantage. They come to court, they deliver a verdict, they drift back into their community and go home to lead their normal lives—end of story. A single judge trying a case enjoys no such privilege. If this trend continues, judges in this country will become more politicised. They will have a higher profile, and they will be subject to more criticism and pressure. I do not think that that would be healthy.
If there is a problem with the present system, and if it is true that some cases are very complex and might last for many months, the remedy can be found by taking another route. First, let us ensure that those who prosecute and defend these cases are extremely able and that they present the issues in a short and simple manner. In other words, we need better case management. We have had the rules for a little while now; let us allow them to bed down and to work. Better case management will lead to shorter cases. It is entirely possible for cases to be further simplified, and it is essential to let case management rules bed in properly. Juries do not lengthen fraud trials. In a great number of such cases, a huge percentage of the time is taken up with legal arguments between the barristers and the judge in the absence of the jury. There is no evidence to support the proposition that juries find fraud cases too difficult; quite the reverse.
An important principle is at stake today. Why do I speak so strongly in favour of the jury? It is because I believe that it represents one of the great protections for the people against an over-mighty state. In all my years of trying cases in the Crown court with a jury, I have not once found a defendant who was not content to be tried by his peers. I have never found a defendant who felt that the jury was biased against him or her. The defendant might say that the judge was biased against him, or gave him a rotten sentence, but I have never heard a word of criticism from a defendant against a jury and its verdict.
I have listened to my hon. Friend’s speech, and I apologise for not having been present for a lot of the debate. This is an extremely dangerous Bill. It undermines this country’s traditional justice system. Are not the Government insulting jurors by saying that they are incompetent to judge in a complicated fraud case? That is unacceptable.
How right my hon. Friend is. With the Bill, the Government appear to be saying to jurors—my hon. Friend makes the point so well—in terms, “You are not up to the job. It is too difficult for you.” That is a great insult to our jury system, which has served us so well for so long. The truth is that the people of this country trust juries, and defendants in court trust juries. It is equally true, sadly, that the only people who do not trust juries are this Labour Government.
It is a curiosity that the Members taking part in this debate are representatives of English constituencies. In a sense, that is right because we are talking about England and English law. So far, everyone who has spoken has been a lawyer. I am not. I am proud, however, to have heard the lawyers, with the exception of but one, from Cheshire—
I will continue. With the exception of the hon. Gentleman, to whom I will give way later, all those lawyers have made reference to something that is wider and that unites us: a sense of England. If anyone were to describe that sense of England, they would think of the history of this country. One of the features of the history of this country that has given confidence to its people over the centuries is that an ordinary man may sit in a jury and decide on the truth of a case. It cannot be suborned.
That was not easily won. We had Star courts. From Magna Carta, we had the concept that nobles alone should judge themselves. The very words in Magna Carta, however, can be used to mean something else—that each and every one of us shall be tried by our peers. We, the people, will try ourselves. Why is it that in common-law jurisdictions—Canada, Australia, New Zealand, the United States—that is a constitutional requirement and cannot be suborned by an Executive? Why are we not asking ourselves that question?
I believe profoundly that our very sense of liberty and confidence in our system of government and its institutions derive from the participation of the common man and woman in the great institutions of state. That is why I think that the Government are very misdirected in seeking to throw out a feature of our system of government that has survived across eight centuries or so. The common-law tradition is remarkable, and as many of the lawyers who have spoken today have said, it is a feature that is often commented on by other countries with different systems. I do not denigrate the intent behind other legal systems. I know that they seek the same objective as we seek, which is justice, although their perspective is different from ours. Our system, however, has been central to the equality of the citizen in this country, and the march that took us there.
In the past 10 years, the extraordinary progress of this Government in seeking to modernise the institutions of state so casually and in such a half-baked fashion has created a cynicism about motives and aspirations. Not only do I feel that they so often misdirect themselves; I think that the incompetence associated with the measures that they propose undermines what was central to the jury system—confidence in the law, and hence confidence in justice.
It is not an old hanging judge who decides whether I am guilty. He may pass sentence, but it is others who decide, picked at random from the people of our country. The jury system is a check on the misogyny or the narrowness—if it is true—of judges. It is a check—if it is true—on the instruments and intentions of Government, because the greatest Government can be brought to a halt by the decisions of those in the jury box. Why does Blackstone, a constitutional authority, prize the institution of the jury across seven centuries? Why does Devlin, in his “Trial by Jury”, see in it the many little parliaments of England? Because it is the common man and woman who are having an impact on decisions that affect lives.
When we talk about justice, we must feel that the system is fair, we must feel that it is open, and we must feel that that it is accessible. Now the great minds that form this Government think that that is not appropriate. I tell them that they again misjudge something that is essential to the character of this country, and hence, by their misdirections, undermine confidence in themselves. But this little jury, the Parliament of England, must express a view on what we stand for. As my right hon. and learned Friend the Member for North Hykeham and Sleaford—
As my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) pointed out, Parliament is more than just us. There is another Chamber, and it will have a judgment, too.
We are conscious—hence the cynicism—that this is something that the Government have pencilled in for the Parliament Act. They want to suborn the passions that are expressed here today. I urge the House to stand by the arguments of every Member who has spoken so far, apart from the Solicitor-General and his hon. Friend the Member for Wirral, West (Stephen Hesford).
We in this House often have our best debates on matters of fundamental and constitutional principle, and that has been the case this afternoon. We have heard a number of extremely good—even memorable—speeches, including that of the hon. and learned Member for Medway (Mr. Marshall-Andrews). However, it is striking and very sad that in a debate on such an important matter, apart from the minimum team of the Minister, the Parliamentary Private Secretary and the Whip, only two Labour Members have even sat in on the debate, let alone taken part. Yet presumably they will all pour into the Chamber in an hour or two to vote down one of the fundamental liberties of the subject that has been with us for hundreds of years. The Labour party is addressing our constitutional liberties with an awesome and breathtaking degree of levity.