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4 Dec 2002 : Column 951—continued

6.9 pm

Ross Cranston (Dudley, North): I declare an interest. I am a member of one of the unpopular groups that the hon. Member for Southwark, North and Bermondsey (Simon Hughes) mentioned. I am a lawyer in the House. The register also has the entry that I am a recorder. I have sat in the Crown court for 10 years.

I commend very much the measured and open-minded way in which my right hon. Friend the Home Secretary presented the Bill. That paves the way for its thorough consideration as it wends its way through both Houses.

On the Bill's background, I do not accept the view that some people have expressed, including police groups, that the Bill swings the pendulum back in favour of victims and witnesses. There is no symmetry between defendants on the one hand and victims and witnesses on the other. I also do not accept what is said at the other end of the spectrum. The Bill is not a frightening attack on civil liberties or a fundamental attack on ancient constitutional values. It is a collection of discrete and sensible reforms, based on detailed inquiries by John Halliday, Sir Robin Auld and the Law Commission. I commend John Halliday on his excellent report on sentencing. It was also right that my right hon. Friend the Prime Minister paid tribute this afternoon to Lord Justice Auld for his thoroughly researched and rewarding report. As my right hon. Friend said, Sir Robin Auld is a man of enormous experience.

I do not want to spend too much time on the non-controversial provisions in the Bill, but I very much welcome the sentencing provisions in it. A philosophy of sentencing is clearly set out and there are useful measures on the deferral of sentences and rehabilitative sentencing. They are very much to be welcomed. I also welcome provisions that will give the prosecution the

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right to appeal when a judge stops a case halfway through. At present, there is a convoluted procedure whereby the Attorney-General has to refer the case to the Court of Appeal, but it cannot make a definitive ruling on it although there is a prospective effect given what the court might say about the judge's ruling. These changes are valuable.

I want to discuss the controversial measures that were addressed in the speeches made by the Front-Bench spokesmen. The first measure is the possibility that in complex and lengthy cases—fraud cases in particular—the jury will be dispensed with and the case will be tried by the judge alone. I accept the point made by my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) that juries are competent to deal with such cases. If the charges are stripped down and presented properly to the jury, it can understand them.

However, I support the change for two reasons. First, it is not possible to find a representative jury for such long and complex cases. We cannot expect people in ordinary jobs to take three, four, six or eight months off work. Therefore, it is not possible to have a representative jury. Secondly and more important—this point has not yet come out—the way in which the cases are stripped down to be presented to juries does not demonstrate to them the true complexity of the case and the true criminality of the fraud involved.

Mr. Marshall-Andrews: Will my hon. and learned Friend give way?

Ross Cranston: May I seek your guidance, Mr. Deputy Speaker? Do I lose part of my time if I give way?

Mr. Deputy Speaker (Sir Alan Haselhurst): The hon. and learned Gentleman has obviously not been diligently reading Hansard or our rulings on the matter. I assure him that there is an additional minute for any intervention that he takes, up to and including the first two. I hope that that is helpful.

Ross Cranston: Thank you for that guidance, Mr. Deputy Speaker. I thought that, with modernisation, the rule might have changed. I give way to my hon. and learned Friend.

Mr. Marshall-Andrews: Can my hon. and learned Friend cite a single fraud case that bears out or backs up the proposition that he has just made?

Ross Cranston: My right hon. Friend the Home Secretary mentioned the Maxwell case, and abuse-of-process arguments apply to such cases. The prosecution brings first a stripped-down charge, the jury acquits after six months, the prosecution then comes along with the second charge and is told by the judge that that is an abuse of process. The trial then stops. The true complexity of the criminality is never revealed to the public if such an approach is used.

Mr. Grieve: Will the hon. and learned Gentleman give way?

Ross Cranston: As this is the second intervention, I will give way.

Mr. Grieve: Surely the abuse of process is related to the onerous burden that it placed upon defendants.

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That was the nub of the burden; it had nothing to do with the jury or its status. A new jury might be produced. The problem was the burden placed on defendants in a series of prosecutions and, doubtless, may also have reflected the judge's view of the state that the prosecution had got itself into.

Ross Cranston: The hon. Gentleman makes my point for me. That is precisely what I am saying. The true complexity of the fraud was never put before a jury, because of the abuse-of-process arguments.The hon. Gentleman also misunderstood what my right hon. Friend the Prime Minister said this afternoon.

Mr. Marshall-Andrews: Will my hon. and learned Friend give way?

Ross Cranston: I cannot give way again. My hon. and learned Friend will have his say.

The shadow Home Secretary talked about slippery slopes in relation to this change. He suggested that it would somehow lead to elected judges. Frankly, I am still grappling with the gap in the logic there. I support the change as a sensible, limited and discrete measure to deal with complex fraud.

I also want to speak briefly about the issue of double jeopardy, which arose in the Stephen Lawrence inquiry. The gateways in the Bill are very narrowly drawn. First, the Court of Appeal has to sanction a second trial. Secondly, the Director of Public Prosecutions has to give his consent, and that must include a public interest test. Thirdly, there must be new and compelling evidence, such as DNA evidence or a post-acquittal admission. It must be highly probable that the person is guilty. Fourthly, there is the interests-of-justice test.

Concerns have been expressed about bad policing, but I invite my hon. Friends to look at clause 66(2)(c), where that issue is specifically addressed. It is not, therefore, a serious concern. There are problems about retrials and the prejudice that might be caused to the defendant if it becomes known that the Court of Appeal has held that it was highly probable that he was guilty. There are provisions in the Bill about how the media can be handled, and retrials already happen in some cases. I acknowledge the practical problem but that should be examined more clearly later in our considerations.

Evidence about bad character will, in the main, be about previous convictions. Previous convictions are already admissible. The hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) raised the issue of important explanatory evidence. If someone is prosecuted and has already been convicted of the offence of driving while disqualified, we have to adduce his previous conviction. I concede that the provision can be more broadly interpreted, and I shall deal with that point shortly. However, previous convictions can already be admitted. The House of Lords considered similar-fact evidence recently and extended the circumstances in which previous convictions can be admissible. Other examples include evidence of state of mind in handling cases and attacks on the prosecution. When a jury does not receive a good character direction, it knows implicitly that the defendant has previous convictions.

Clause 84 rationalises those provisions in many ways, but there are concerns. The Bar Council rightly asked whether the judicial filter should be stronger. Clause

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84(3) imposes a judicial filter, but not in relation to all provisions in clause 84(1). I hope that my hon. Friend the Minister will consider whether judges should always consider the admissibility of previous convictions.

My hon. Friend the Member for Sunderland, South (Mr. Mullin) referred to bolstering a bad case. A stronger judicial filter would deal with his objection. Propensity is not proof, but we have to be realistic. The chairman of the Magistrates Association said in a speech yesterday that when she sat on the bench she often knew that a defendant had previous convictions because, in a small community, she had dealt with that person before. Typically in France, the first thing a judge does is to read out previous convictions. If properly applied and modified as I suggest, the provision could be useful.

I agree with what the Front-Bench spokesmen said about the administration of justice. That is one aspect of the necessary changes. The courts Bill will address some of the other problems with the administration of justice, but this Bill is sensible and modest and will improve confidence in the criminal justice system.

6.22 pm

Miss Ann Widdecombe (Maidstone and The Weald): I want to address not only what is in the Bill, but what is not in it because there are one or two important omissions.

The Bill makes no attempt to introduce an offence of substantial possession in drugs cases. The arrestability for possession of drugs has been mentioned. My principal concern is that following the Home Secretary's decision to reclassify cannabis—I shall leave my strong disapproval of that to one side for a moment—someone who carries a substantial quantity of it can argue that it is for personal use only and is, for example, a year's supply. Indeed, such a defence was mounted by someone accused of dealing in ecstasy. He said that he happened to be carrying 52 tablets because it amounted to one a week for a year.

I have long argued that there should be an offence of substantial possession. I would welcome the Government's response to that because the Home Secretary has said that he would take the matter seriously. Such an offence would mean that although intent to supply cannot be absolutely proved, the quantity possessed is sufficiently great for it not to be treated as a case of simple possession. It would be helpful to address the idea of substantial possession. The argument that a drug is for personal consumption over a long time is a standard defence to charges of intent to supply.

The Chairman of the Select Committee briefly touched on the other measure that is missing. He suggested that the Home Secretary might like to consider anonymity for defendants in rape cases. It is wholly wrong and completely unbalanced against the accused that his identity is known throughout when the accuser's identity is not. To justify that, it is often argued that if a defendant has committed similar unreported crimes, the disclosure of his identity encourages people to come forward. But of course, the converse argument applies. If the accuser has made false allegations before—perhaps not even at a legal point, but in an employment context—no similar means are open to the

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defendant, which would encourage people to come forward and say that that has happened before. It is loading the dice against the accused, who is nearly always a man, of course. I wish that the men in this place would occasionally wake up and realise that the dice is being more and more heavily loaded against them.

There have been two references to the injustice perpetrated when people serve enormous lengths in prison and are proved at the end to be innocent, although I accept that the Bill might not be the right vehicle to tackle that. The Stephen Downing case was mentioned. There was another case, the name of which eludes me—

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