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I accept that the solution we are suggesting is second best and not fully satisfactory, but trying to prevent us from rolling down the slippery slope is better than allowing us to roll down it. For the sake of avoiding a confrontation between the two Houses, we are prepared to move to that compromise. That is the only basis on which we have put it forward.
We will not press those proposals to the vote tonight, but I hope that the Home Secretary will see the light and accept the purport of amendments Nos. 2 and 3 when, as I profoundly hope, they are sent back to the House by the other place. I give notice now, however, that if he will accept neither those amendments when they return nor the compromise position, we are prepared to crater the Bill and force him to use, a year later, the Parliament Act so as to take a stand on what I continue to regard as one of the fundamental principles of this country's criminal justice system—our adherence to and belief in the jury system.
Mr. Chris Mullin (Sunderland, South): I shall be brief. The Home Affairs Committee addressed these issues in its report on the Bill, and we started by welcoming the
Government's intention to retain jury trial in either-way cases. It is sometimes forgotten that they have form in this area, as they made a couple of attempts two years ago to abolish jury trial in either-way cases. I am glad to say that those attempts were seen off, and very wisely the Government dropped the proposal. I refer back to those attempts in relation to the argument on slippery slopes, because they are a sliver of evidence for the suggestion that something bigger—perhaps in the past, perhaps under another Home Secretary—might have been in the mind of the Home Office in respect of reducing the right to a jury trial.On balance, the Home Affairs Committee accepted the argument that, in cases of complex fraud, jury trial could be dispensed with, but we did so only on the basis that there was a difficulty in finding a suitably representative cross-section of jurors for a long trial. We did not accept that juries are incapable of understanding arguments in complex cases. We took the view that it is the job of counsel and the judge to make the issues simple enough for ordinary mortals to understand.
Mr. Hogg: Is there not another conclusion, too? The Crown has an obligation to ensure that the indictment is fairly simple and short, and to avoid extended conspiracy charges.
Mr. Mullin: That is absolutely right, and it is in everybody's interest—the interest of the defendants, quite obviously, as trials that go on for months are time consuming and debilitating for all concerned, and the interest of the public, as such trials are enormously expensive. I have long believed that even the most complex arguments can usually be reduced for ordinary mortals to a few simple concepts that ought to be readily explicable for people as articulate as those who practise in our courts.
So, we did not buy the argument, and I am glad to say that, ultimately, at least when he appeared before us, the Minister, Lord Falconer, did not advance the argument that the purpose involves the difficulty of finding jurors capable of understanding the argument. The argument made to us was on the difficulty of finding a representative cross-section of jurors who would be available for a long trial. On those grounds, and those grounds alone, we accepted it, albeit reluctantly and albeit without unanimity.
David Winnick: My hon. Friend says that we accepted the argument with some reluctance. Does he accept that although the majority, and that includes me, agreed to the recommendation, there was a general feeling of being somewhat unhappy and a wish that such agreement was not necessary? There was certainly no enthusiasm, and he has made that clear.
Mr. Mullin: There was not unanimity. We thought about the issue carefully, although it is not for me to meter the degree of enthusiasm that existed during the discussion. The conclusion that we reached was an on-balance one on the lines that I have suggested.
Mr. Heath: Is the hon. Gentleman, in saying that he rejects the arguments about a complex matter being too difficult for a jury to understand, saying also that he rejects clause 37, which provides for a jury being
discharged in certain complex or lengthy trials—either condition is sufficient—and an alternative being put in place?
Mr. Mullin: We accepted the argument presented to us by the Minister on the difficulty of finding juries to deal with lengthy trials, but the complexity argument I do not buy.
It is hard to argue with the Home Secretary's point that where there is clear evidence of jury tampering the possibility of a non-jury trial ought to be provided for, because it clearly is in the public interest that villains should not be able to tamper with juries. I have heard nobody seriously dispute that. I would say only that it ought to be demonstrated, not just alleged, that such evidence exists. The police sometimes want to impress on the jury how heavy the villains are who are on trial. They do that sometimes by over-egging the security around the court so that everybody who comes into court has to see armed guards en route and all that sort of thing. That, of course, makes an impression on juries.
I say again that it must be clearly demonstrated that tampering has occurred. There must not merely be an allegation at which everyone throws up their hands and the jury is immediately dropped.
Mr. Letwin: If the hon. Gentleman means what he just said and it was not a slip of the tongue, he supports amendment No. 13 rather than the clause, because the purport of that amendment is that tampering has to have occurred—the phrase he used—whereas the clause would allow the advancement of the argument that it might occur.
Mr. Mullin: I believe that clear evidence has to show that tampering has occurred or that there is an extremely serious risk of it occurring. There has to be evidence, not simply an assertion.
Mr. Bercow: Will the hon. Gentleman give way?
Mr. Mullin: If the hon. Gentleman will forgive me, I do not want to get bogged down on this point. The safeguard is in clause 41—the right of appeal will be allowed in cases where a jury trial is denied in relation to fraud and jury tampering. No doubt that right of appeal will be exercised.
I have a couple of queries. My hon. and learned Friend the Member for Redcar (Vera Baird) touched on the question of a judge having had to rule in private on public interest immunity and having heard things that will not be discussed in open court. I have high confidence in our judges' ability to distinguish between evidence given in open court and knowledge obtained privately. I certainly accept that all our judges, or most of them, are independent of the state, but in my experience judges, even the most intelligent, can be a mite gullible.
I have sat through major trials over which some of the finest judicial minds in the land have presided. No issue of fact and no detail advanced by counsel on either side was too small to be examined forensically by them but they missed the big picture entirely. Observing such trials, it occurred to me—it is true in other walks of life, not just the judiciary—that it is possible to be extremely
clever and stupid at the same time. It is an observation that one could occasionally make about the profession of politics, too. Therefore, I have that reservation about the ability of judges to distinguish between what they hear and what is put to them privately.
Mr. Hogg: Will the hon. Gentleman give way?
Mr. Mullin: I will in a moment.
I think that the Home Secretary conceded that, in such cases, a judge should be ready to hand over to another judge, not only so that the evidence is not contaminated but so that the trial is seen to be fair. That reservation worries me. I accept the assurances of the Government that this is not a slippery slope and I am glad to hear Ministers reaffirm that proposition today.
Mr. Marshall-Andrews: Before my hon. Friend leaves that point, may I ask him to address what seems to many of us to be a central point? If a judge hears prejudicial evidence, or any evidence, in private with the prosecution, they are the only two people in the court who are seized of that information—the defence does not have it—so how can that person, as a matter of principle, sit as a judge deciding guilt or innocence, and how can one possibly avoid contravening articles 6 and 12, to take only two, of the European convention on human rights, which require that there shall be equality between the parties?
Mr. Mullin: I am not qualified to pronounce on the point about the European convention. No doubt Ministers have checked that very carefully but, on my hon. and learned Friend's first point, I am very sympathetic. I think that, in a case where the judge is party to a lot of evidence or information—some of it would not qualify to be evidence, which would be a bit iffy to put it mildly—that has not been part of the prosecution case, there is a strong argument for insisting that the case be heard by a separate judge.
Mr. Marshall-Andrews: Will my hon. Friend give way?
Mr. Mullin: Forgive me. I was in the process of winding up when my hon. and learned Friend intervened.
I reaffirm the point on which I think everyone here agrees: these reforms, just about acceptable though they are, should not be carried further. There should be no further erosion of the right to trial by jury. We should go thus far and no further.
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