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Lady Hermon (North Down): Will the hon. Gentleman clarify one simple thing for me? Is it now Tory party policy to campaign to abolish the non-jury Diplock courts, which have worked successfully in Northern Ireland without the sun and the moon falling in?
Mr. Grieve: I reassure the hon. Lady that it is nothing of the kind. If she bears with me, I will provide her with complete reassurance on that when I deal with jury tampering, which is the relevant issue with regard to Diplock courts. We are not talking about a situation in which it is necessary to have a trial in front of a judge alone because no fair trial could otherwise take place. Mercifully, England and Wales have not had the same problem as Northern Ireland.
The other concern relates to applications by prosecution for certain complex or lengthy trials to be conducted without a jury. The Minister made some concessions on that and I acknowledge that they are important. The possibility of a review by the Lord Chief Justice and the possibility of a discretion to the judge not to allow a trial to take place without a jury are helpful. However, the Serious Fraud Office has a conviction rate in excess of 90 per cent. The number of trials that will fall within that category are minute, especially in the light of the Government's amendments.
Trials have not collapsed because of the difficulties of finding juries. Juries can be found. There is, therefore, no justification for keeping clause 42. If that clause were to go, I have no doubt that our tasks in relation to the Bill would be immeasurably simplified. The proposals to curtail the right to trial by jury in fraud trials are fundamentally flawed. Although I accept that the Government's amendments are a minor improvement, they do not go to the heart of the issue.
Mr. Hogg: My hon. Friend welcomed the inclusion of a review by the Lord Chief Justice. Perhaps he might care to reconsider that because what is being proposed is a private word with the Lord Chief Justice. No one will know what he has said and no one will have the opportunity to address him. That is private justice of a most unsatisfactory kind.
Mr. Grieve: I have no doubt that anyone who reads what the Lord Chief Justice said on Second Reading—
Mr. Hogg: That is not the point.
Mr. Grieve: I will get to that. No one could doubt that the Lord Chief Justice has the interests of justice and judicial discretion at heart. The concession is not good enough, but it is better than a poke in the eye.
Mr. Hogg: It is private justice.
Mr. Grieve: It is still marginally better than what was on offer before. I do not give the concession greater praise than that. If I did, I might be minded to reconsider clause 42, but I am not and nor are my colleagues.
The final issues relate to the application by prosecution for trial to be conducted without a jury if there is a danger of jury tampering. Although I continue to have concerns about that, the Minister has gone a considerable way to provide reassurance. In the case of an application to discontinue jury trial even before the first trial has started, the amendments tabled are improved by removing the second condition in clause 42(5), and I accept that. However, I still believe that the test for deciding whether such a trial should go ahead is not high enough. The Minister knows the amendments that we tabled earlier and they remain, to my mind, the acceptable model. However, the Minister and the Government have gone a long way to provide reassurance. I am sorry that in the totality of the matter it is not sufficient.
In the case of discharge of the jury because of jury tampering, I am again pleased that the Minister has made certain concessions and I accept that they may have been reached with great difficulty. Nevertheless,
they are worthy concessions. It remains the case that the test of whether it is necessary in the interests of justice for the trial to be terminated is not sufficiently high. That is perhaps a minor issue and the Government have come even closer to satisfying us on that—although still not close enough.The Government have tabled amendments, and that is productive in the process of trying to come to an agreement. I am willing to continue that process. I would like to see the Bill on the statute book, but nothing will induce me to take a step that would allow that as long as the fundamental flaws in it—especially in relation to clauses 41 and 42—remain. Those clauses should not be in the legislation. It is such a fundamental issue that it makes it impossible—I say this with regret—to reach agreement with the Government this evening.
Simon Hughes: (Southwark, North and Bermondsey): The Bill started its passage through Parliament on 21 November last year, when it had its First Reading in the House of Commons. We took six months to deal with it, finishing on 20 May. The following day it went to the Lords, and they finished their work on it on Monday 17 November. They did their job well, as we tried to do ours. Only yesterday did we have the chance to consider for the first time the changes that the Lords had made. We did so carefully, although within a guillotined time limit. We sent back to the Lords a variety of matters, after eight votes.
Only four substantive matters remain, out of a Bill of 307 clauses and 30 schedules. Of 14 parts, only two are still controversial—four clauses in part 7 to do with jury trial and 16 clauses in part 11 to do with bad character, reputation and evidence. I say to the Minister in the same spirit that has followed the Bill throughout its passage that it cannot be impossible for people of good will to negotiate an agreement that allows the Government, who have already secured agreement on 12 of the 14 parts of the Bill, 287 of the 307 clauses and all the schedules, to reach an agreement on those that are outstanding in the hours that remain of this Parliament.
We did not determine that the matter should be finished by tomorrow: the Government chose that. Like the Conservative party, the Liberal Democrats have appreciated the discussions with Ministers at all stages. Like Conservative, Labour and Independent peers, Liberal Democrats have participated in those discussions and made our position clear. The Government must understand that in this Parliament there are two Chambers, both of which are entitled to have their say. It is a Parliament of the Government's making. Indeed, the second Chamber is explicitly of this Government's making and they therefore have to accept that it has the right to have its say, as we do.
Let me make our position clear on the matters that remain. The amendments tabled represent progress—they are an improvement. However, on the two substantive matters to which they relate—jury trial and bad character—the Government have not yet addressed fundamental concerns that have caused opposition on both sides of this House and of the House of Lords. Let me make it clear how the Government will have to proceed. I hope they will do so, and if they do, we shall respond in the hours that remain.
10 pm
The Government must accept that making only the minimal alteration to clause 41, "Application by defendant for trial to be conducted without jury", and giving the judge discretion means, by definition, that there will, at least on a regular basis, be the possibility of non-jury trial for the most serious offences in cases that clearly produce two types of serious trial in this country. Instead of the respected institution of the jury—12 people—making a decision, a judge will make the decision alone in some cases. That judge would come with a reputation and would be in a far more invidious position than any judge is now. The change is not necessary. The reason it should be resisted, which I hope the Government will accept, is that it eats into the principle that we in this country have jury trial for serious cases, and the defendant—not the Government or the judge—chooses.
We debated yesterday at great length clause 42 and whether serious fraud cases were better dealt with by judge or by jury. The logic of the Government again coming up with a proposal that gives a discretion to the court seems to my hon. Friend the Member for Somerton and Frome (Mr. Heath) and me—we have examined the matter carefully—to be that if the tests that remain in the Bill are passed, the judge will be driven to decide that the case can be a judge-only case. That outcome is the presumed outcome. Yes, the provision for an application to the Lord Chief Justice provides a threshold, but as the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) said, that application is made without criteria or public debate, and as a result there is no necessity for decisions or reasons for those decisions to be stated publicly.
Mr. Hogg: It is more offensive than that, because the relevant parties to the litigation do not have an opportunity to address the Lord Chief Justice.
Simon Hughes: That appears also to be the case.
Mr. Garnier: Have the Government applied their mind to the time available to the Lord Chief Justice? He is already a busy man; is he expected to throw away his existing list in order to deal with the applications of a private nature that the hon. Gentleman is describing?
Simon Hughes: If there were a real issue—if we as a country had great difficulty securing convictions in serious fraud cases—that might be a matter that should daily command the attention of the Lord Chief Justice. However, serious fraud cases are not ones in which convictions are not regularly successfully achieved: 90 per cent. result in convictions—a higher proportion than in any other category of case heard before judge and jury. The Government are inventing a mischief in order to propose a solution, and their solution is the loss of jury trial. A defendant who happens to be charged with fraud may suddenly lose the right to a jury trial, with no say at all.
I hope that we have made it clear to Ministers that we have arrived at our position for all sorts of reasons, not only history, success and reputation, but because of the danger that once the principle that serious cases should go before juries is broken into for some serious cases
today, it is possible to argue that it should be done for other serious cases tomorrow. Lesser cases do not go to juries; the change that we are debating would be the beginning of serious cases not going to juries, and defendants would have no say in that. If the Minister believes that that will enhance criminal justice and the reputation of the good parts of the criminal justice system, he is sadly mistaken. I am sure that, in their heart of hearts, he and his colleagues do not believe that.On jury tampering, I also welcome the concessions that have been made. I think that there is scope for agreement on the wording. I accept that there are cases where it may be necessary, when attempt after attempt has been made to have a jury trial and people have interfered, to pull the plug. That may be necessary when everything else has been tried. I think that the Government now accept that and that they are moving in the right direction. We are prepared to work on some wording in relation to clauses 43 and 45.
I hope that the House is making it clear that clauses 41 and 42 are not a necessary precondition of the Bill passing through this place. I hope that the Minister understands that if the Government choose to pull the Bill because they cannot get their way on these two clauses, that will be the Government's choice, not our choice. It will be a choice that is not consistent with the reputation and the view of the British people, who trust jury trial more than they trust a single administration in the government of this country. I hope that the Government will realise that the reputation of the criminal justice system deserves better treatment, and that they will think again. We are willing to do so, and I hope that they will do so too.
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