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“and Mr Upward”
“in tonight’s news coverage. It is being stated that you and other members of the court thought that we were unable to remember evidence from the early stages of the trial and thus a fair trial would prove impossible. Nobody asked for our comments and what we felt. Why would the majority of us be making notes? So that when we came to deliberate we could refer back to them and make informed decisions. I personally referred to my notes regularly during the trial and was thus able to compare evidence and make informed judgements as the case proceeded. To now be labelled an incompetent is not acceptable”.
These are important issues. I have to tell the Solicitor-General that I am troubled that on repeated occasions when we have come to consider the issues of juries in long fraud trials, we have appeared to be faced with a blank wall when we have confronted the Government. In a debate in the House on 21 June 2005, when a statement was made that there would be an end to juries in certain fraud trials, the Solicitor-General said:
“Stephen Wooler is indeed looking into the background of the Jubilee line trial and will no doubt make his report in due course, but the House needs to know when the Government have made a clear decision.”—[ Official Report, 21 June 2005; Vol. 435, c. 658.]
May I ask the Solicitor-General and the Attorney-General, in the light of this extremely compelling and interesting report, to reconsider their position and to take on board the comments that have been made? Will the Solicitor-General also confirm the other point that was made so tellingly in the report—that even if the Government’s proposals in section 43 of the Criminal Justice Act had been implemented, the trial would almost certainly have taken place with a jury in any event? To use this case because of the waste of public money that has resulted is particularly pernicious, and I very much hope that the Attorney-General will stop doing it.
The causes of the collapse have been correctly identified by the Solicitor-General, but one of them deserves special focus. The decision to charge conspiracy to defraud at common law was regarded by Mr. Wooler as muddling matters by introducing a charge that was vague and insufficiently particularised, and which, most remarkably, added 10 months to the trial when the issues surrounding it had to be fully explored.
The Solicitor-General will know that as the Fraud Bill has made its way through the House, the Government have resolutely maintained that the law of conspiracy to defraud at common law must be retained. May we please have an assurance from the Solicitor-General that as the Report stage of the Bill has not yet been reached, he will give careful consideration to the comments made by Mr. Wooler as an example of the particular application of the charge of common law conspiracy? Is it not the case that the decision to charge conspiracy to defraud at common law was one of the most disastrous elements that led to the eventual collapse of the trial? There must be lessons from that. Even if we do not get rid of conspiracy to defraud at common law, I very much hope that the Solicitor-General can assure the House that the issue will be examined in the context of the guidelines that the Attorney-General has already published.
The Solicitor-General will be aware of substantial criticisms of the way in which fraud has been handled by the Crown Prosecution Service in recent years. In saying that, I am very conscious of the fact that it is clear from the Solicitor-General’s statement that steps have been taken to rectify the situation. But the House is entitled to be concerned to discover that this was an unintended consequence of setting up the Serious Fraud Office. Will the Solicitor-General give an assurance to the House that the way in which changes are brought about will be kept under close review? For example, in respect of cases such as this one, should the SFO be encouraged to expand its remit in bringing prosecutions, thereby taking them away from the Crown Prosecution Service? Otherwise, there will have to be two parallel centres of expertise, because in the light of the report it is clear that the lack of a centre of expertise within the CPS was a contributory cause of the prosecution’s failure.
The
Solicitor-General mentioned that he was able to accept 10 of the 11
recommendations, and, obviously, I welcome that very much. In respect
of the recommendation that he was unable to accept, I entirely
understand why
that cannot simply be done by the Government,
because it concerned the involvement of the judiciary in the
development of procedures to have a comprehensive view of cases, and
particularly the role of judges in case management.
I appreciate that that is a difficult issue. Judicial independence must be maintained. The judge in this case was—very properly—unable to co-operate with the inquiry, and to have done so would have been a misconduct on her part. But it would be desirable if a mechanism could be found to help judges in an area that all experience suggests is very challenging, and where even the ablest of them often have difficulty. I very much hope that the Solicitor-General is able to indicate to the House that this matter is being properly progressed.
The Solicitor-General: I am grateful to the hon. Gentleman for the way in which he has raised his points and for his general welcome for the report of Stephen Wooler and his team, and I join him in thanking them for what they have done. They produced a very thorough report that dealt with all the issues that they were asked to cover, and we in this House are very grateful to them for that.
The hon. Gentleman raised a number of issues. In relation to non-jury trials and section 43 of the Criminal Justice Act 2003, there is nothing in the report, as he indicated because he read the relevant part of it, that suggests that there is proof either way of whether non-jury trials are desirable. However, what my right hon. and learned Friend the Attorney-General said was not that the report somehow proved the case one way or the other, but that it was illustrative to a considerable degree of the challenges of presenting long and complex cases in front of a jury—such as the way in which such cases had to be presented, the sheer length of them, and the enormous pressures on the jury.
The hon. Gentleman will be aware that we have agreed that the issues in relation to section 43 will be dealt with by way of a free-standing Bill, which will give us all the opportunity to look at the detailed arguments about non-jury trials. However, let me just say this: we are dealing with a suggestion in relation to not the 29,000 cases that are currently dealt with by juries, but perhaps half a dozen a year—up to a maximum of 20—of the most serious cases, which represents a fraction of 1 per cent. We need to find ways in which not only blue collar crime, but the most complex fraud and white collar crime, can be tackled effectively. I support using juries in the vast majority of cases. However, for some cases I argue not that the jury cannot understand the evidence—I hear what the juror said about making notes, and I am sure that he was assiduous in ensuring that he followed the evidence with great care—but that very long trials impose an unacceptable burden on jurors.
To make trials manageable, prosecutors often have to resort to tactics such as splitting complex cases into separate trials and reducing the number of counts on an indictment, and therefore the full culpability of criminals is frequently not exposed to a jury. We need to find a better way. We have repeatedly offered to discuss the matter with the Opposition to see if we can reach an agreement. That has not yet been possible, but I hope that between now and when we consider the Bill, we will have the opportunity to reach agreement.
The benefits of section 43 are clear. The full criminality of an issue can be exposed. We should have shorter trials. The judges can read the papers, rather than them having to be presented orally before a jury. In that way, we should be able to expose the full criminality of such issues and ensure that criminals get their just desserts.
The hon. Gentleman referred in particular to count two, which deals with conspiracy to defraud, but that was not the only cause of the collapse of the trial. There were other causes, such as the illness of a defendant and the slow and disjointed nature of the proceedings. But the fact that from an early stage the investigation did not focus on collecting all the evidence necessary to prove count two was a matter of some concern. The prosecution’s failure to show in particular why London Underground Ltd was defrauded by the conspiracy referred to in count two caused a problem, but the judge did find on two occasions that it was a proper charge.
Let me also add that we have had general discussions about conspiracy to defraud in debates on the Fraud Bill. The report does not recommend the repeal of conspiracy to defraud. As the hon. Gentleman knows, in our consultation on the Fraud Bill the majority of respondents asked us to keep conspiracy to defraud. The Rose Committee of senior judges said that it would be a big mistake to revoke it. In respect of the Fraud Bill, there will be forms of behaviour that will not be considered fraud under statute—for example, where a defendant plays his part in committing a crime but is ignorant of the wider details of the fraud, and where the final crime was committed by someone outside the immediate conspiracy.
That said, let me make it clear to the hon. Gentleman that we hope to be able in due course to repeal conspiracy to defraud. The Government propose to have a review on that in about three years. In the meantime, the Attorney-General has produced guidelines which we hope will reduce the use of conspiracy to defraud, so that it is employed only where necessary.
The hon. Gentleman asked about changes in respect of Crown prosecutions, and I assure him that we will continue to monitor the way in which they occur. The case management panels will have monthly reviews, and we hope that that will lead to an improvement in the standard of prosecutions. Recommendation six said that there should be a multidisciplinary approach, with investigators, prosecutors and accountants—and other experts where appropriate—working together as a team from the early stages of investigations. We want to see that that happens, too. However, I give the hon. Gentleman the assurance that he seeks: we will continue to monitor such changes.
The hon. Gentleman commented on the recommendation on judges. I entirely agree that it is important that we maintain judicial independence—we must ensure that the independence of the judge in question, who quite properly decided not to engage in the inquiry, is maintained. However, we will also have appropriate discussions with the judiciary to see what steps it wishes to take in the light of these recommendations.
Simon
Hughes (North Southwark and Bermondsey) (LD): I thank the
Solicitor-General for his statement and his courtesies yesterday. I
impute no criticism to
him for the way that events have turned out. There
was a robust set of questions and exchanges involving the
Attorney-General yesterday in the House Lords, and I want to refer to
some of them.
I have a particular interest in this case as I am the MP for the constituency that was most affected by the Jubilee line extension. I join the hon. Member for Beaconsfield (Mr. Grieve) in congratulating Mr. Wooler and his team; they clearly did a good job, and it was right of the Attorney-General to commission that inspection by the new body set up just for that purpose.
The 11 recommendations raise many issues, but I hope that the Solicitor-General will agree that there abide three central issues, and I should add that much of what I say will reflect concerns expressed by the hon. Member for Beaconsfield. There is the conspiracy to defraud issue; the issue that the failures were of the prosecution, not of the defence; and the issue that the principle of jury trial was not at fault. To paraphrase a much more famous selection from the three, the greatest of these principles is that the principle of jury trial was not at fault.
The first and third issues relate to the fact that the Attorney-General and the Solicitor-General have, as it were, set themselves in opposition to the logic of the recommendations. I therefore join in encouraging Law Officers to retain their intention to get rid of the conspiracy to defraud charge at the earliest opportunity. More generally, when the Law Commission makes such recommendations, it should give both Houses the chance to debate them on the basis of a considered proposal put before us. Had it done so, we could have anticipated such issues and possibly prevented this serious and very expensive mistake.
On the second issue, I wonder whether the Solicitor-General can give an answer that the Attorney-General was unable to give yesterday. The latter has accepted the proposed setting up of a fraud prosecution division, which, in effect, would reinstate under another name the arrangement that applied until a few years ago. How far has that proposal got? Has it been set up, and is it in place? If so, how many cases are now being looked after by these specialists within the London Crown Prosecution Service? It is clear that the Attorney-General has accepted that we need a structure that not only contains specialists, but has senior management control over all such cases.
Thirdly, the Solicitor-General quoted the phrase used by the Attorney-General, who said that
“the case illustrates a good deal about the challenges of presenting long and complex cases in front of a jury.”—[ Official Report, House of Lords, 27 June 2006; Vol. 683, c. 1099.]
Indeed it does, and the conclusion was that juries can cope. In the light of that, can the Solicitor-General confirm expressly that not until the Fraud Bill—this issue has been debated during consideration of that Bill—has been enacted and tested for some years, and not until the fraud review has had some years in which to be digested, will we have any suggestion from the Government that we need to look again at changes to the principle that juries deal with fraud cases? Having passed a significant Act through Parliament that deals with these issues, it would be nonsense then suddenly to say, “We need to change the law.”
Finally, Recommendation 5 sets
out some very practical suggestions on how jurors should be dealt
with—more respectfully and carefully, and simply more
considerately—particularly in longer cases. May I have an
assurance that those lessons will be learned, and that judges and
courts will in future make it clear that jurors—who clearly can
do the job—are respected for the job that they are willing to
do, want to do and can do competently? They must be treated as a very
important part of our democratic and constitutional system—a
system that we Liberal Democrats believe should be the principle for
dealing with all serious cases in this
country.
The Solicitor-General: I am grateful to the hon. Gentleman for his courteous reply, and particularly for what he said about the statement—or lack of it—yesterday. Let me deal first with his final point, about which he is quite right: we should improve the quality of our treatment of jurors. I have spoken to some people who have served on juries who were particularly concerned about the way in which they were dealt with. If we can find ways of making that experience a little easier for jurors, that would be very desirable. When a juror is dealing with an extremely long case, it is all the more important that any family and work-related issues that might arise are taken account of. That will always prove very difficult in long cases, and there will always be trials that last a long time, even if we bring into play section 43 of the Criminal Justice Act 2003. It is right that, in those circumstances, we should make sure that we do the best by those citizens who have given up their time to deal with such cases.
Let me deal with what the hon. Gentleman said about jury trials. Mr. Justice Auld, in his report of 2001, made his views on this issue very clear:
“If I had to pick two of the most compelling factors in favour of reform, I would settle on the burdensome length and increasing speciality and complexity of these cases, with which jurors, largely or wholly strangers to the subject...are expected to cope. Both put justice at risk.”
“I am firmly of the view that we should wait no longer before introducing a more just and efficient form of trial in serious and complex fraud cases.”
Mr. Justice McKinnon, who had to deal with the Blue Arrow case, said:
“No jury should be asked to cope with what this jury... had to endure”
in terms of a very long trial. The Court of Appeal said that, in that case,
“there was a significant risk of a miscarriage of justice resulting from the volume and complexity of the evidence.”
I have gone through the arguments about the way in which prosecutors ensure that cases can go on, and I shall not rehearse them. What we need to do now is to look seriously at how we can get a just outcome from these trials. I invite the hon. Gentleman—and, indeed, all the Opposition parties—to engage in serious discussions on how we can best deal with these cases.
The Government want, in due course, to find circumstances in which we can repeal the common law offence of conspiracy to defraud, to which the hon. Gentleman referred. We want to review that, probably in 2009—we said that we will do so three years after the passage of the Fraud Bill, which, I assume, will go through this year—so that is the time scale that we are looking at.
The hon. Gentleman also asked about the fraud prosecution service, which has indeed come into existence. It is a new fraud unit that will harness the skills and experience of specialist fraud prosecutors, and Mr. David Kirk, a top private sector lawyer, has been appointed as its head. I cannot tell the hon. Gentleman how many cases it has dealt with up to now. Given that its remit was established only recently, I suspect that it has yet to get many cases to trial; however, it will doubtless be investigating a number of such cases. I shall write to the hon. Gentleman, if he will allow me, with that information.
Mr. Iain Duncan Smith (Chingford and Woodford Green) (Con): I notice that, in their statements, the Solicitor-General and the Attorney-General have somewhat quietly and carefully shifted the argument about jury trials: they are now talking about people being kept there too long, and the difficulty of sustaining such trials. May I take the Solicitor-General back to what happened at the collapse of the Jubilee line trial and the surrounding events? Previously, there had been a very strong implication that ordinary members of the public who make up juries in fraud cases could not be expected to understand the complexities involved. The issue was them and their abilities, and not so much the time that they spent in the pursuit of such trials.
This report is more than just a blocker in terms of the attacks on juries; it actually upholds the principle of jury trials. When the jurors were interviewed, I was astonished to discover the amount of information that they retained, and their understanding and grasp of these so-called complex issues. Why, when such difficulties arise, do we, in this country alone, blame those who are determined to seek the balance, rather than those who bring the case? In America, under the procedures that apply there, a case was brought against Enron in six months—with a jury.
The Solicitor-General: I invite the right hon. Gentleman to check the records, and if he does I think that he will find that the Government have never heavily relied on the Jubilee line case. Moreover, we have not argued the case that jurors are incapable of understanding such issues—the problem is the burden that a vast amount of complex information and exhibits, presented to a jury over a very long period, place on any juror. The process of oral presentation of evidence takes a very long time, but it could be dealt with by a judge very quickly; it could even be dealt with by a judge sitting with assessors, which is one suggestion that Lord Justice Auld looked at.
We must treat this issue with a great deal more seriousness. There is a tendency to fall back on the view that this is somehow an attack on juries, but it is not: it is an attempt to find a way to get justice, so that the full criminality of those who commit very complex fraud can be brought before a court and dealt with fully and properly.
The right hon. Gentleman made
an interesting point about the United States of America. We have been
examining the circumstances there with a great deal of care. The US
deals with cases, particularly complex fraud cases, in a very different
way. Perhaps the most significant difference is the frequent use of
plea
bargaining. My right hon. and learned Friend the Attorney-General will
consider the range of lessons to be learned not only from the United
States, but from Hong Kong and other countries and jurisdictions. That
might form part of the wider fraud review that we hope will report by
the summer and will be able to lead us towards better ways of dealing
with complex fraud investigations, as well as
prosecutions.
Mr. Shailesh Vara (North-West Cambridgeshire) (Con): Reference has been made to the 11 recommendations in the report, 10 of which have been substantially accepted. Can the Solicitor-General give the House an assurance that measures will be put in place to ensure that those proposals are not only properly implemented, but monitored to see whether any alterations need to be made?
The Solicitor-General: Yes, I can give that reassurance. We have already had discussions with the Director of Public Prosecutions. As the hon. Gentleman will be aware, the director of the Serious Fraud Office is also aware of the full implications of the report. Its recommendations are important. We want them to be fully implemented, and we will monitor the situation to ensure that they are.
Mr.
Peter Bone (Wellingborough) (Con): I find it hard to
believe that the Government’s proposal to do
without trials is due to the length of time that they take. The
Solicitor-General let the cat of the bag a moment ago when he said that
we are not getting enough convictions. Is not the truth of the matter
that the CPS cannot present its cases well enough to get convictions,
and that is why it wants to do away with
juries?
The Solicitor-General: The hon. Gentleman does a disservice to the CPS. Certainly, the report made some criticisms of its handling of this case, but in many other trials it has handled fraud matters very well. There is a need for improvement. That is why certain reforms have been put in place, particularly since the statement made in 2003 by my right hon. and learned Friend the Attorney-General about changing the way in which cases are considered. We want the prosecution of fraud to be carried out properly and effectively. That is not only about getting more convictions, but about securing justice, and justice requires that those who have committed an offence have the full extent of their culpability exposed before a court so that they can be properly dealt with by the criminal justice system. I am concerned that the way in which prosecutions occur at the moment, with indictments being split and the number of counts being reduced, sometimes means that there is not a full exposure of that level of culpability. We need to consider that seriously, as putting our heads in the sand and being blind to it has taken us nowhere.
Points of Order
1.13 pm
Anne Main (St. Albans) (Con): I need your help and advice on this matter, Mr. Speaker. On 26 April, I asked the former Home Secretary whether foreign nationals due for deportation were placed on the sex offenders register if they had committed a serious sexual offence, and the answer was not quite as clear as I had hoped. With your indulgence, I raised a point of order on 2 May, but still did not get a clear answer. I tabled questions on 4 May seeking information, but I have not received a holding reply. I subsequently asked a named day question, to be answered on 19 June, about the delays in answering my questions. Again, I have not even received a holding response. Given this clearly unacceptable situation, can you give me any advice on how I can gain the information that I seek?
Mr. Speaker: I thank the hon. Lady for giving me notice of her point of order. As I have said on several occasions recently, it is important that Ministers give timely answers to parliamentary questions. I know that the Leader of the House shares that view, and I have no doubt that he will read what the hon. Lady has said on the record in tomorrow’s Hansard. I hope that he will pursue this matter. I would also say to the hon. Lady that in my experience perseverance is a very important thing in this House, and she should persevere.
Mike Penning (Hemel Hempstead) (Con): On a point of order, Mr. Speaker. As I am sure that you are aware, on 11 December the largest explosion that Europe has seen since the second world war took place in my constituency. It not only had catastrophic effects on the environment, but put nearly 4,000 jobs at risk. On the following day, I praised the Deputy Prime Minister for coming to the House to make a statement, but since then, more than six months later, not one ministerial statement, oral or written, has been made to the House about the effects of Buncefield and the ongoing inquiry. May I seek your advice, Mr. Speaker, on how we can get a Minister of any Department to come here to tell us what is going on?
Mr. Speaker: I always say to hon. Members that if Ministers will not answer questions, the answer is to seek an Adjournment debate so that they are brought to the Floor of the House. I advise the hon. Gentleman to do that.
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