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Mr. Blunkett: I want to make it absolutely clear that I agree entirely with the Lord Chief Justice's comments. As far as I am aware, the new clause's provisions on discretion reflect the tenor of the hon. Gentleman's amendment—that, taking clauses 43 and 45 together, the discretion would be removed because there would be no power for a judge to decide to continue to sit in prolonged trials; there would have to be a fresh trial and a jury reconvened.
Mr. Grieve: If the Home Secretary will allow me, I shall return to that point when I come to clauses 43 and 45, because I think that he is wrong on that issue, and I shall explain why.
The Opposition do not believe that the proposals on complex or lengthy trials are necessary. In the current year, the Serious Fraud Office, which deals with the most complex cases, has achieved a conviction rate of 92 per cent. Since it was set up, it has achieved a conviction rate of 84 per cent. That simply does not support the Home Secretary's view that juries are unable to deal with long and complex trials.
The Home Secretary knows of the Law Commission's recent proposals on multiple offending, which is closely
linked to fraud. In many instances, a trial for fraud will involve specimen counts, with many other offences being taken into consideration. I fully accept that the mischief at the moment is that, short of having a lengthy trial, it is difficult to deal with those offences if a defendant who has been convicted does not accept them. That is why I was delighted when the Government suggested that they intended to incorporate the proposals on multiple offending in this Bill. I believe that such a proposal would be given a fair wind were it ever to come before this House. It is precisely because such procedures may exist that the House should be so cautious about, in the same breath, getting rid of juries for lengthy and complex trials. I do not believe that is necessary. The need will certainly be reduced, and, as I asked the Home Secretary, where is the evidence that juries cannot deal with such cases? If the evidence is that they can do so, what possible good reason exists to fetter their right to hear those cases in exactly the same way as they deal with any other criminal who is alleged to have committed an indictable offence?
Mr. Hogg: Does my hon. Friend also agree that a jury is much more likely to be able properly to consider a case if substantive offences are charged rather than the Crown coming forward with a charge of conspiracy?
Mr. Grieve: Speaking from personal experience, my right hon. and learned Friend is absolutely right on that point. Keeping matters simple is in the interests of justice and of achieving the conviction of the guilty, and my experience is that fraud trials tend to go wrong when the prosecutor overloads the indictment and fails to keep matters simple. Oddly enough, when matters become muddled for the jury, they also become muddled for the public, so the risk with trial by judge alone in long and complex fraud trials is that matters will appear so esoteric that, even if a conviction is recorded by the judge, the public will fail to understand the full extent of the criminality of the person concerned, which we should avoid.
Mr. Blunkett: Is the hon. Gentleman's proposition that it is more important that the public should understand what went on, even if a guilty man is found innocent, than it is to get a conviction, even if the public were not absolutely clear about the exact nature of a trial that lasted for 18 months or more? Does not that fly in the face of the Roskill report of 1986, with which he will be familiar as a lawyer?
Mr. Grieve: Justice must be done and be seen to be done. It is desirable that both those things should happen, and I believe that both those things can happen. In the light of the Serious Fraud Office's excellent work in simplifying fraud trials and bringing them to a conclusion, and of the Government's proposals on multiple offending, which could be of great benefit, I do not believe that the proposed measure is necessary. If necessity could be made out, I am sufficiently pragmatic to listen carefully to what the Home Secretary has to say. Where is the necessity for this measure?
I want to deal finally with the issue of jury tampering, on which there are two distinct clauses. One provides a
mechanism by which a judge may try a case without a jury when he considers that there is a risk of jury tampering but none has occurred. The second deals with instances in which jury tampering has taken place, such that a jury must be discharged in the course of a trial. If I may say so to the Home Secretary, those are two very different concepts. There is, however, one thing on which he and I can entirely agree: it would be a disaster if a state of affairs were ever to exist in this country whereby trials could not take place at all because of jury tampering, and justice could not be done. That was what underpinned the decision to set up Diplock courts in Northern Ireland, and I fully understand the rationale, even if I regret that a state of affairs arose that made that necessary.Clause 45 deals with jury tampering. I say to the Home Secretary, as I said in Committee—and, heaven knows, as I said to the Prime Minister one day in Prime Minister's Question Time—that I understand what the Government are trying to achieve. If, as the Home Secretary says, the evidence is such that this is a deteriorating situation that is gravely inhibiting the processes of justice, we are prepared to co-operate with the Government to try to arrive at a formula that would allow for trial without a jury in those exceptional circumstances. The Home Secretary told me earlier that the amendment that I tabled to tempt the Government into dialogue was flawed because it did not envisage the judge continuing with the trial on his own. If he cannot understand why it would be impossible for a judge to continue with a trial on his own after the discharge of a jury, he does not understand some of the basic and elementary features of the criminal justice system. That situation might cause the utmost unfairness. It could not rationally be done, so there would have to be a retrial in front of a judge, if that was the exceptional course that had to be adopted.
Mr. Hogg: May I reinforce my hon. Friend's point by putting an example to him? In the first trial, there could have been a whole class of evidence that is not used in the second trial. In such circumstances, the trial judge would inevitably have in mind material that was adduced in the first trial, but not in the second one.
Mr. Grieve: My right hon. and learned Friend is absolutely right. It would be impossible and undesirable for a judge to continue in such a situation. We would need a fresh trial with a fresh judge.
Mr. Blunkett: I hope that this will be my final intervention on the hon. Gentleman's speech. Does he therefore agree, in the same vein, that where a jury had been intimidated it would be difficult for witnesses who had already given evidence to be called in the second trial? That situation is not impossible, but it would be difficult, as the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) pointed out. One must compare witnesses who put their necks on the block with judges making judgments or the need for a jury to hear evidence presented in a new way.
3.30 pm
Mr. Grieve: I accept that there might be difficulties. I have been involved in retrials, where witnesses have been put to the inconvenience of returning.
Mr. Grieve: The Home Secretary says "threat", and there are occasions when witnesses are threatened. Equally, however, it is not possible to hold a fair trial if the procedure shifts from trial by jury to trial by judge alone halfway through a case. It is as simple as that—it is not procedurally possible.
Mr. Elfyn Llwyd (Meirionnydd Nant Conwy): I agree with the hon. Gentleman. Would the provision not be in breach of article 6 of the European convention on human rights, because there could not be a fair trial in such circumstances?
Mr. Grieve: I agree with the hon. Gentleman. The provision would be in breach of article 6. It is a non-starter. Leaving aside everyone else's views about the Bill, all the lawyers who practise in the courts to whom I have spoken regard the measure as nonsense and completely unworkable.
Mr. Garnier: May I give my hon. Friend a further example to help him to destroy the Home Secretary's non-argument? No one in their right mind would think it right to allow a retrial to take place in front of the original jury who had heard prejudicial evidence against the defendant. Simply transferring the tribunal of fact from the jury to the original judge would not cure the position. I would have thought that Ministers might have got their heads around that much.
Mr. Grieve: I agree with my hon. and learned Friend, although part of the Government's idea is that the judge continues seamlessly, which is equally impossible.
I hope that the Home Secretary will consider our amendment to clause 45. Of course, it is drafted using tighter language than his provision because I want the courts to make examinations in minute detail if applications are made for a retrial without a jury, because juries can often consider cases after jury nobbling has occurred. I hope that the way in which we have drafted the amendment—it includes the word "sure" and relates to a great risk—would help to achieve that.
I turn to applications by the prosecution for a trial to be conducted without a jury if there is a danger of jury tampering. The Home Secretary expressed surprise that our amendments were differently worded, but that is because they address two completely different situations. [Interruption.] The amendments are not contradictory, and if the Home Secretary wishes to intervene, I shall give way. There is no contradiction because we say that before a jury is empanelled, there must be an overwhelming risk of jury tampering in order to show that a fair trial could not take place. A court should not consider how long a trial will last or issues of protecting juries at that time. It should decide on a simple question: if a jury were given protection in the usual way, would there be such an overwhelming risk
that jury tampering would take place that it would justify an exception to the rule that there should be a trial by jury? I hope that the Home Secretary will think about that further.
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