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Lady Hermon: I shall keep this intervention short, Mr. Deputy Speaker. The hon. Gentleman, in the past, has taken a considerable interest in Northern Ireland affairs and is familiar with our non-jury procedures. I refer him to an article in The Times on 18 July 2002 by Sir Donald Murray, a Lord Justice of Appeal of the Supreme Court of Northern Ireland, who served in that capacity for several years. His conclusion about non-jury trials was that the possibility of an unsafe or unsatisfactory conviction being allowed to stand "is remote". I should add that our judges in Northern Ireland are clever and never stupid. Would the hon. Gentleman be persuaded to support the Government if they were to amend the Bill in line with what we have in Northern Ireland with regard to non-jury trials, with an appeal on points of law and points of fact and with the judge having to state the reasons for the decision?
On the length and complexity option, the reality is that often, middle-class professional defendants would get a particular class of trial, while the rest would not. Long and complex cases involving fraud usually involve professionals. My hon. Friend the Member for Torridge and West Devon (Mr. Burnett) knows more about this issue than I do, although not through first-hand experience, I hasten to add. Those without such a white-collar background would not be in the same boat. So often, there would be a particular system of justice for one category and a different one for another.
On jury tampering, in some ways the provision would be an encouragement to tamper, not a disincentive. That would be extremely dangerous. Colleagues on both sides of the Chamber know that it would provide a perverse incentive that could lead us in the wrong direction. Instead, we ought to draw a line and say that jury trial remains and will not be moved, however hard one tries. People who tamper with juries should be punishedtaken to court, prosecuted and imprisonedbut the system should not be fundamentally changed.
Mr. John Burnett (Torridge and West Devon): I hope that, like me, my hon. Friend takes no comfort in the analogy drawn by the hon. Member for Wrexham (Ian Lucas) on jury tampering and magistrates. There is always an appealin fact and lawin terms of a magistrate's decision.
Mr. Bercow: Does the hon. Gentleman agree that although his point is valid in itself, it is the stronger by virtue of the fact that the Government have worded the clause so loosely that a very low threshold has to be overcome before jury trial is scrapped? It is absolutely and chronically perverse.
Simon Hughes: I accept that point absolutely. I understand the argument, advanced by the hon. and learned Member for Redcar (Vera Baird), that if we are to go down this road we need much steeper steps. However, although the position that the right hon. Member for West Dorset (Mr. Letwin) takes, which is to suggest a compromise, is understandable in respect of some of these issues, it is the wrong one at the moment. The proposals are weak in terms of the width of the doors that they open; it would be far better to stand on the proven track record of the existing system. When we talk to our colleagues in the other place in the days to come, I hope that we discover that, on looking at the evidence, they share our view that the current system has much more merit than any of the alternatives.
Simon Hughes: The right hon. Gentleman must sometimes be less generous in providing escape routes for the Government. It is sometimes better to show them that there is no escape; that way, they might change their minds.
Mrs. Dunwoody: Will the hon. Gentleman reiterate the fact that this House must take decisions on principle? If this House is defeated on matters of principle, by all means it is perfectly correct for Her Majesty's loyal Opposition to make it clear what their actions will be. This is the place that ought to be deciding on what happens in the law courts, whatever happens in an unelected second Chamber.
Simon Hughes: I should tell the hon. Lady, who knows that I respect her greatly, that that is absolutely our job. This is indeed an issue of principle, and somewhat unusually, we accord with the view of the majority of the people who send us here about the importance of it.
I apprehend that we will have a debate tomorrow about the independence of the judiciary, and as I said to the Home Secretary earlier, some of us are going to ensure that we stand up for judges and their independence. Liberal Democrats are very clear that today's debate is about standing up for juries. Parliament should stand up for juries. They are tried and tested. They are one of the most popular institutions in the criminal justice system. If everything else in it were as successful and popular, we would not need legislation such as this. Nor would we have the difficulties or the disaffection that, sadly, much of the rest of our law and order policy provokes from the people whom we represent.
Mr. Marshall-Andrews: I am aware that many Members wish to speak, so I will be brief. I shall of course confine myself to clauses 37 and 38, and to amendments Nos. 2 and 3. These provisions represent, as we all know, the most serious attack on the most fundamental of our civil libertiesjury trial since the previous most serious attack, which took place during the previous Parliament. Even in the short time available, it is impossible not to reflect on the exquisite irony before us. During consideration of mode of trial legislation, we were repeatedly told that our fears were groundless because the most serious offences would always be sacrosanct in terms of jury trial. Now, of course, we hear precisely the reverse. It is impossible not to draw the conclusion that the Government, having got their hands badly bitten twice on that occasion, are now applying themselves to the dog from the other end.
This issue is relevant to the entire question of the slippery slope. If these provisions go through, the Government will return to mode of trial. I listened very carefully to the Home Secretary talking about the wisdom of penitence, and saying that the Government have learned their lesson. I am sorry to say that I do not accept or believe a word of it. I also listened very
Mr. Bercow: I entirely agree with the purport of the hon. and learned Gentleman's argument, which is that the Government do not seem to have learned their lesson. Does he recall, and think appropriate in this context, the observation of Kipling, who said:
I should declare an interest, in that I have prosecuted and defended serious fraud cases for many years, some of which were extremely serious. I like to think that I prosecute and defend such cases with equal vigour, and if I ever had the misfortune to prosecute the Home Secretaryfor an offence unidentified at the momentI hope that he would find that that was indeed so. I dislike losing cases when I am prosecuting as much as I dislike losing them when I am defending, so I am not a wet liberal in that regard.
Much has already been said, entirely justifiably, about the Government's motives and reasons, and I shall cut that discussion short, save in respect of the representative nature of juries. The truth is that we have cracked this problem. In the vast majority of serious fraud cases, we take a day or sometimes two. We never have panels of 700 jurors. Sometimes we have 100, and we always find juries that are comfortable with sitting for the time involved in serious fraud trials. The idea that they are not representative is a dream of the Government; it is wholly unsubstantiated by those who practise in the courts. There is no law or learning on this; there have been no studiessociological, demographical or otherwiseto suggest that these juries are unrepresentative.
The universal view of those who practise is that these juries are in fact more representative than any others. They include, it is true, slightly more women than men, which is no bad thing. They include, it is true, slightly more disabled people who are unable to work, which is no bad thing. Those drawn from a pool of people who are not working at that time include the highly successfulno bad thing if one is dealing with serious fraudand those who have the misfortune to be unemployed. Again, that is no bad thing. These supposedly unrepresentative people have no difficulty whatsoever in convicting in nearly 90 per cent. of the cases that they hear. This Government would not suggest for one moment that that was due to some feebleness of intellect.
The whole question of public interest immunity applies. The Crown claims public interest immunity for evidence that it believes should not, in the public interest, be put before the defence. The evidence is put before the trial judge, and the trial judge decides. The system works extremely well. The judge might say that the defence can see certain evidence, but not other evidence: the jury will then, in common with the defence, be ignorant of that evidence. A judge cannot hear PII claimshear evidence that is not privy to the defenceand then try a case of guilt or innocence. That offends every single canon of natural justice and is a manifest breach of the European convention.
The Government have advanced no argumentabsolutely nonein favour of the position, only the postulation that there could be a second judge. I tell the House that that is impossible, because the nature of public interest immunity is that the judge has to keep the matter under review throughout the trial until it reaches a point at which the judge says that evidence that he hitherto decided should not be given to the defence, now should be given to it. The judge knows the case throughout the trial. Even supposing that having another judge were possible, what would happen in a PII case: it would have to start again with another judge, and then on it would go to another judge for another PII application. I repeat that that cannot work. What will happen in practice? Judges, asked if they would try a case on their own will end up asking the prosecution whether PII factors apply to that case. In money laundering cases, such factors always apply, and nearly always in cases of serious fraud. The legislation is deeply flawed in that respect alone.
However, manifest injustice is evident in another respect. Frequentlyor more often than nottrials involve more than one defendant. In serious cases whether or not jury tampering has occurredthere may be a Mr. Big, a Mr. Not so Big and a Mrs. somewhere in the middle. Mr. and Mrs. might be bringing up the end and two or three misters are the minnows who have played hardly any part at all. They are all, quite rightly, tried together, but what will happen if an application is made to the effect that public interest immunity applies to one of them? They will all be tainted. What will happen if one of them tampers with a jury? They will all lose their jury trialevery single one of them. What will happen if complexity is postulated in respect of only one defendant, Mr. Big? They will all lose their right to a jury trial.
When I asked the then Minister, he confirmed that that would be the case, but said that it would be subject to an application to split the trial. So now we have two trialsthe same trial once tried by a judge, and once tried by a jury. What will happen if two conflicting verdicts result: the jury says guilty, the judge not guilty?