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Simon Hughes: The right hon. Gentleman knows that my colleagues and I support the view that he outlined. Does he accept an additional element that reflects the same constitutional principle: the importance of lay magistrates, especially when they deal with guilt and innocence in the lower courts? They are ordinary, non-
professional members of the public. It is regrettable that the number of lay magistrates has decreased and the number of paid judges who do the job has increased. The public would have more confidence if matters were moving in the opposite direction.
Mr. Letwin: I am glad that I gave way to the hon. Gentleman because he brings me to my next point. I wholeheartedly agree with him. The principle of the layperson and the exercise of common sense in our courts is important. I agree that the lay magistracy is at least almost as important an institution as the jury in protecting the principle of the operation of common sense. I fear that although the Home Secretary and the Lord Chancellor have aimed in the Bill and elsewhere at a genuine drive for efficiency, they thereby sacrifice the cause of common sense. In justice, when the chips are down, common sense matters more than straight efficiency.
Mr. Gummer: My right hon. Friend pointed out that the jury or the magistrate is representative of ordinary people. That is the key part of the representation. The Home Secretary suggested that if the representation does not comprise a mixture that ranges across the board, it is not sufficiently representative. Of course wide representation is best, but the key point is that members of juries and lay magistrates are not professional paid people but ordinary people with whom the mass of the public can associate themselves and thus recognise that the system is not set up by authority against them.
Mr. Letwin: I entirely agree. My right hon. Friend better expresses the point that I was trying to make. Trial by jury reinforces to the general public the fact that justice in this country is a system not of the state opposing the individual but of society gathered to find out the facts. The jury represents society and finds the facts.
Mr. Letwin: I give way to my right hon. and learned Friend.
Mr. Hogg: Will my right hon. Friend follow up his point and face the fact that the proposition to which he has committed himself contradicts the new clause that he tabled? If we are considering judgment by one's peers, providing that a person charged with a financial offence can be judged only by actuaries or chartered accountants denies that person a trial by his peers.
Mr. Letwin: I shall deal with that at the tail end of my remarks. However, I stress for my right hon. and learned Friend's edification, and in seeking his agreement, that the first choice must be the preservation of trial by jury as we know it. Amendments Nos. 2 and 3 would provide for that. I hope that my hon. Friends will vote for them. The proposals in the new clauses are very much second best.
Mr. Blunkett: I am especially glad that the right hon. Gentleman took the intervention of the right hon. and
learned Member for Sleaford and North Hykeham (Mr. Hogg) first because it was enlightening. Will the right hon. Gentleman confirm that he does not believe that the judiciary is the instrument of the state? He implied that he believed that it was.
Mr. Letwin: There is an important difference between reality and appearance. The appearance matters as much as the reality. It is true, thank goodness, that the judiciary remains independent of the Executive in Britain today.
Mr. Letwin: The Home Secretary has cause to know that that is true. I celebrate the fact. Long may it remain so, but—an important but—the ordinary citizen does not perceive a judge in all his grandeur in the same light as a jury. The jury is representative of the ordinary citizen in a way in which a judge neither can nor should be. Judges are endowed with the majesty of the law and in that sense, although independent of the Executive, they represent the state. There is a difference.
Mr. Michael Jabez Foster (Hastings and Rye): The right hon. Gentleman is talking about procedure rather than anything else. He speaks of common sense. Is he more interested in the right decisions, or in mere appearance? Is he saying that judges are less capable of reaching the right decision than juries, or is he just saying that that is how it appears?
Mr. Letwin: I think that there are two answers to that question. Like, I suspect, the House as a whole, I am interested both in the right decisions and in the way in which the law in general is seen by the citizenry. The House certainly needs to be interested in both those things. If what we are interested in is a criminal justice system that works, public confidence is critical. What counts is not merely the individual case, but the way in which the system is seen by the citizen.
Vera Baird: Is it not self-evident that the calibre of a jury decision will be higher than that of the decision of any individual? Twelve diverse, randomly selected people are listening, and have all the time in the world to debate and to cancel out each other's prejudices.
Mr. Letwin: I will not argue with the hon. and learned Lady about the term "self-evident", but it is clear that the system of applying 12 minds to a question of fact, operating on the basis of common sense, is a good system that has worked. We would at the very least be taking a risk by moving, on a large scale, to trial by judge alone.
My next question is: do these proposals contain real threats to the prevalence of trial by jury? An important part of the Home Secretary's argument is his claim that he is not really undermining trial by jury. The problem with that argument is that it is wrong.
Mr. Marshall-Andrews: Is it not a testament to the genius of juries that, especially in complex cases involving property, they currently convict in 86 per cent. of cases?
Mr. Letwin: Yes. I shall deal with that later, and when I do I will—if I may—cite the hon. and learned Gentleman's intervention.
Are the Government's proposals really so different in effect, if not motives, from the earlier mode of trial legislation? That is an important question. If the Bill constitutes a minor adjustment to the jury system, we shall have one kind of debate; if it constitutes a wholesale attack on that system, we shall have quite another.
Let us take the case of a jury that is held to be about to be tampered with. Let me point out to the Home Secretary—I am not saying that he did not know this, but he glossed over it in his speech—that we are making a critical distinction between two sets of circumstances. In one, a jury has been tampered with: amendment No. 13 deals with that. In the other, the jury has not yet been tampered with, but the prosecution successfully argues that it might be. The Home Secretary wants to let the prosecution argue that the jury might be tampered with, and, under his proposals, if the prosecution persuades the judge of that proposition, trial by jury will fall, subject to appeal.
What means will the prosecution adopt to argue that the jury might be tampered with? It will allege that the crime of which the defendant is accused was very serious, very well organised, very violent, or something of the kind. Unless it has evidence of previous tampering on the part of the defendant, it will argue that the case should not be dealt with by a jury because such tampering might take place. I have just listed the most serious cases. In the most serious cases, the prosecution will be most likely to argue that the jury should not remain.
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Simon Hughes: Is not this the real strength of the argument about tampering with juries? It is not just that certain cases lend themselves to such intervention; one thing we are all trying to do in the criminal justice system is persuade people to give evidence in the first place. Many people do not come forward because of threats and fear. In each of those cases, the jury might be interfered with because the first attempt to prevent the case from reaching the court failed. There are many such cases in many courts every year.
Mr. Letwin: I think that the prosecution will advance the argument that I have described in a fairly wide range of cases, not all of which will be the most serious; but it is an important part of the argument that I am about to advance that the prosecution will tend to present the judge with that proposition in the most serious cases. The hon. Gentleman and I need not be at odds about that.
What about complex trials involving financial or property-related matters, often mis-described by the Government as fraud trials? I am not saying that fraud trials do not fall into that category, but the category is much wider. A major health and safety trial involving corporations will typically be finance-related, complex and involve property. It will presumably qualify. A strong attack by the criminal justice system on a serious drug-dealing gang may well involve complex financial and property-related issues. I am thinking not least of cases that we discussed in the context of another Bill.
Of what variety are the cases I have just described? They are among the most serious cases.What pattern is emerging? We can anticipate from the Government's
proposals, I think plausibly—I am at pains not to put this in hyperbolical or overblown language—that, in many of the most serious cases, the prosecution will persuade the judge that the jury should be removed. That will bring about a bizarre situation. I agree with the hon. Member for Southwark, North and Bermondsey (Simon Hughes) that this will not be the sole outcome, but I expect a large number of relatively minor cases to go on being tried by juries, while a preponderance of the most serious will not be.What will the Government tell the House then? They will say, "If we do not need jury trial for the most serious cases, why on earth do we need to preserve it for minor cases? Why should we be so inefficient"—I use the term of which the Lord Chancellor is so fond when referring to lay magistrates—"as to preserve the jury system for minor cases, having accepted that it is not necessary for major ones?" I fear that it would be difficult to resist that logic. This is not merely the slippery slope rightly described by the hon. Member for Southwark, North and Bermondsey; the Home Secretary is taking us well down the slippery slope.
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