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House of Commons
Session 2005 - 06
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Standing Committee Debates

First Standing Committee
on Delegated Legislation




 
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First Standing Committee
on Delegated Legislation

The Committee consisted of the following Members:

Chairman:

Mr. Christopher Chope

†Atkins, Charlotte (Staffordshire, Moorlands) (Lab)
†Balls, Ed (Normanton) (Lab)
Binley, Mr. Brian (Northampton, South) (Con)
Bottomley, Peter (Worthing, West) (Con)
†Ellwood, Mr. Tobias (Bournemouth, East) (Con)
†Garnier, Mr. Edward (Harborough) (Con)
†Gwynne, Andrew (Denton and Reddish) (Lab)
†Heath, Mr. David (Somerton and Frome) (LD)
†Kemp, Mr. Fraser (Houghton and Washington, East) (Lab)
†Kidney, Mr. David (Stafford) (Lab)
†Mactaggart, Fiona (Parliamentary Under-Secretary of State for the Home Department)
†Miliband, Edward (Doncaster, North) (Lab)
Oaten, Mr. Mark (Winchester) (LD)
†Prisk, Mr. Mark (Hertford and Stortford) (Con)
†Ryan, Joan (Lord Commissioner of Her Majesty’s Treasury)
†Wright, Mr. Anthony (Great Yarmouth) (Lab)
Emily Commander, Committee Clerk
† attended the Committee


 
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Monday 14 November 2005

[Mr. Christopher Chope in the Chair]

Draft Criminal Justice Act 2003 (Commencement No. 12 and Transitory Provisions) Order 2005

4.30 pm

The Parliamentary Under-Secretary of State for the Home Department (Fiona Mactaggart): I beg to move,

    That the Committee has considered the draft Criminal Justice Act 2003 (Commencement No. 12 and Transitory Provisions) Order 2005.

This is the kind of commencement order that we would not normally debate in Committee. It brings into force from 1 January 2006 the provision in the Criminal Justice Act 2003 that, subject to the agreement of the Lord Chief Justice, enables trials for serious or complex fraud to take place without a jury—section 43—and other provisions in the same part of the Act to the extent that they are needed to support it.

The new procedure will apply only to cases that reach the Crown court on or after 1 January. As section 43 relies on another, as yet unimplemented, provision of the 2003 Act to effect the limitation to serious fraud cases, the order modifies section 43 to achieve the same result. That is done by providing that it applies only to cases that are removed to the Crown court under the notice-of-transfer procedure for serious fraud cases under section 4 of the Criminal Justice Act 1987, or to indictable-only offences sent to the Crown court under section 51 of the Crime and Disorder Act 1998 if they are serious or complex fraud cases.

We are considering the order because a requirement for affirmative resolution was added to the Criminal Justice Bill in its closing stages in November 2003. At the time, the Government undertook not to implement section 43 until there had been a further process of consultation involving the main Opposition parties, the judiciary and the prosecuting authorities. There has been misunderstanding about that process. The consultation was not about whether we need new arrangements to deal with the most serious and complex fraud trials. Had there been any doubt about that need, the Government would hardly have pressed ahead with section 43, nor would Parliament have enacted it. Moreover, the matter has been subject to consultation and consideration by Committees over 20 years.

Mr. David Heath (Somerton and Frome) (LD): As the only member of this Committee who was party to the agreement that was reached with the then Home Secretary on that day, may I give the Minister the absolute assurance that the agreement was that the section would not be implemented until there had been
 
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proper consultations with the Opposition parties and others on alternatives to non-jury trial? Those discussions have, however, never taken place.

Fiona Mactaggart: The hon. Gentleman is right about the need for consultation; I have spoken to the former Home Secretary personally about the matter. But those consultations have happened. Let me describe how they occurred, because that is important. They were a set of consultations about the procedure whereby non-jury trials might proceed—

Mr. Heath: That is beside the point.

The Chairman: Order.

Fiona Mactaggart: That is precisely what the commitment given to the House by the former Home Secretary was. The consultation was about the procedure for which section 43 provides. The question on which there was consultation was whether there is a better alternative to trial by jury that would be more acceptable to those who oppose section 43 than a judge-alone trial. That issue was explored at the seminar that the Attorney-General held in January. The invitation to the event, to which the Front-Bench spokesmen from both main Opposition parties were invited, made it clear that that was its purpose. It was, however, apparent at that meeting that there would be no agreement on any alternative, because those who oppose section 43 do so because they want to retain jury trial, not because they particularly object to trial by judge alone.

The Government’s position is that, having carried out the promised consultation without success, we must proceed to implement the provision that Parliament enacted two years ago. It is vital that our criminal justice system be capable of dealing effectively with people accused of serious wrongdoing. However, in the most serious and complicated fraud cases, that is not always so. The need to restrict the material put before a jury means that in a small number of very serious cases, it is impossible to bring defendants to trial on charges that adequately reflect their criminality.

In the three years to 2004, there were 19 fraud cases that lasted more than six months, and six that lasted more than a year. The jury in such cases is inevitably unrepresentative—how many people can afford to give up their normal lives for so long?—and if jury members fall ill or become otherwise unavailable, there is the risk of a trial collapsing at enormous expense. The prosecution and the courts do their best to keep the length of such cases to a minimum, but when that involves limiting the number of charges that are put before a jury, it may be impossible for the court to hear the full extent of what is alleged to have been done.

We cannot afford to have a double standard in dealing with fraud whereby easy-to-prosecute blue-collar fraudsters are prosecuted successfully, and white-collar criminals are not. To preserve public confidence in the criminal justice system, we need to ensure that white-collar criminals do not escape justice; if we fail, fraud will become attractive to
 
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organised criminals and terrorists. That is why the time has come to bring section 43 into force. Its scope is extremely limited; only a handful of cases a year will be affected. The vast majority of Crown court cases will continue to be tried by a jury in the usual way. The proposal applies only in the most difficult fraud cases when the prosecution makes an application and the judge is satisfied that the trial is likely to be so burdensome for the jury that the interests of justice require it. The Lord Chief Justice, or a senior judge nominated by him, will have the final say on whether a case can be dealt with under the new procedures.

The procedure gives us the chance to ensure that these cases are heard. I know that hon. Members will offer the alternative of better case management, and that is why, during the period of consultation, the Lord Chief Justice issued the protocol for better case management, which is one of the conditions that can be taken into account in deciding whether a case will be heard without a jury.

4.37 pm

Mr. Edward Garnier (Harborough) (Con): I welcome you to the Chair, Mr. Chope. What I am about to say is a criticism of the Government, but by no means a criticism of the Minister, who was merely handed the file as she left the Home Office in order to present this piece of Government business.

This is a particularly grubby day for a grubby Government, because it represents a gross breach of an undertaking given on the Floor of the House during the final stages of the Criminal Justice Bill in November 2003. I shall return to that matter.

The Minister said, quite properly, that this commencement order would not usually have been debated, but would simply have been the result of an administrative order. However, even in what seems to be a relatively simple matter it has to be amended even before it comes into Committee, because another commencement order will have to be introduced. At the moment, she has to content us by saying that only transferred cases, or serious fraud cases under the Crime and Disorder Act 1998, will be affected by this measure.

Pages 3, 4, 5 and 6, and half of page 7, of the proposal are taken up with various commencement orders—different starting dates for different parts of the Criminal Justice Act 2003. When I go to judicial studies board residential courses in my capacity as a Crown court recorder and as a representative of the House of Commons—not of the Government, I am happy to say—it is little wonder that I am continuously ribbed, in good part, by members of the full-time judiciary, lecturers, academics and other practitioners, who say, “How on earth can you amend the criminal law and introduce it in this way?”

The columns on pages 3 to 7 show how many provisions in the Act come in on different dates. It is a complete muddle, and a totally chaotic way to deal with the criminal law and amendments to it.

Some right hon. and hon. Members may not be aware of what happened on 20 November 2003, the last day of the 2002-03 session. The Lords
 
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amendments were ping-ponging back from one House to the other, and towards the end of that parliamentary day, the then Home Secretary, the right hon. Member for Sheffield, Brightside (Mr. Blunkett), who has had one or two other occupations since then, said, while discussing the negotiations that were taking place between the Opposition parties and the Government as the Session came to an end:

    “We have also been prepared to discuss clause 42, having secured clauses 43 and 45.”

He continued:

    “We have adduced that it would be very sensible indeed if, given the controversy that has arisen over clause 42, we were able to secure agreement in a way that joined us together in finding a solution for the very, very small number of cases in which there is a major problem in securing a jury, and securing the retention of the jury, as well as in being able to secure the confidence of the SFO that, in taking such cases, it could secure a conviction where one was rightly warranted. It will, in other words, secure justice.”—[Official Report, 20 November 2003; Vol. 413, c. 1027.]

I will paraphrase what the right hon. Gentleman said next as best I can. He said that in moving to the use of a single judge, sitting alone, in those serious fraud cases, the Government would be prepared first to secure the consent of the Lord Chief Justice. He also said that the Government would be prepared to agree that they would not implement the proposals in clause 42, as amended, while they sought an improved way forward that did not rely on a single judge sitting alone.

In the final remarks that the right hon. Gentleman made on that day, he very fairly set out the various offers of alternative methods of dealing with serious fraud cases that had come from the Conservative party and the Liberal Democrats—procedures other than the use of a 12-person jury, such as the use of specialist juries and assessors. To be fair, I must add that he said that he was not against such measures, but was happy to work with the Attorney-General, the Serious Fraud Office and the senior judiciary to take a further look at how such ideas might be taken forward.

After the hon. Member for North Southwark and Bermondsey (Simon Hughes), who was then the Liberal Democrat spokesman, had heard what the then Home Secretary had to say, asked for a public clarification from him that mirrored a question that had been asked during the private negotiations. He asked:

    “Is it the implication of his remarks that, as a result of the Bill passing into law tonight, there will not be any serious fraud trial by a single judge in England and Wales?”

to which the then Home Secretary replied:

    “I am prepared to give that undertaking. It is part of the agreement that we will retain the clause, but move forward towards looking at the alternative solutions that I have mentioned and that could be incorporated in one or other of the two measures that have either been consulted on or will come before the House in the Queen’s Speech. That safeguard is appropriate. I give a binding undertaking that we will follow that agreement.”—[Official Report, 20 November 2003; Vol. 413, c. 1028.]

One would have to be a moron in a hurry not to take from that undertaking given to the House the impression that the right hon. Gentleman was talking about altering the jury system for serious fraud cases only by means of primary legislation.


 
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Indeed, later in the debate, the right hon. Gentleman referred to the specific pieces of legislation within which it would be appropriate for those changes to be included. I probably do not need to specify those pieces of legislation, and will not waste the time of the Committee reminding myself of what they were. None the less, there were two specific pieces of legislation foreshadowed for the Queen’s Speech, into which the then Home Secretary clearly assured the House that any changes to the jury trial system in such cases would be incorporated.

We move from that undertaking given to the House on 20 November 2003 to the so-called consultation about which the Minister told us. That was referred to in a statement made by the current Solicitor-General on 21 June 2005. He had the misfortune to be instructed to say:

    “The Government gave a commitment to consult further on these issues when the 2003 Act was passed. That commitment was made good at a seminar held in January of this year”.—[Official Report, 21 June 2005; c.655.]

That is the Government’s sole admission that any consultation took place. When the Government say that they consulted widely, they restrict themselves to that seminar. The Solicitor-General said that Opposition spokesmen, the judiciary, prosecuting authorities and the legal profession were represented at the seminar. He added that he would place a record of the seminar proceedings in the Library of the House.

I do not know whether the Minister has had the opportunity to read the transcript of that seminar; however, if that constitutes consultation on the discrete issue that we are discussing, the expression “Government consultation” yet again amounts to no more than a hideous oxymoron.

It is outrageous for the Government to allow the Under-Secretary to come to Committee to attempt to persuade us that what the Government claim to be a consultation, which we know to be no more than a seminar, gets them off the hook and delivers the deal that the then Home Secretary undertook to enter into in November 2003.

Mr. Heath: The hon. and learned Gentleman may also be aware that that seminar, which apparently constituted the consultation with the Opposition parties, was a seminar to which neither the Front-Bench spokesmen on home affairs and constitutional affairs from my party nor, I believe, those from his party were invited.

Mr. Garnier: As I understand, my hon. Friend the Member for Beaconsfield (Mr. Grieve) was asked by letter—

Mr. Heath: As shadow Attorney-General.

Mr. Garnier: Indeed. He was asked to come to the meeting. Unfortunately, he could not attend, so my noble Friend Lord Kingsland, the shadow Lord Chancellor, attended. Both assure me that neither the invitation nor the seminar amounted to what any
 
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normal person who understands the meaning and usage of the English language would term a consultation, based on what the then Home Secretary said on 20 November 2003.

I entered into that introduction to justify my allegation that a grubby Government are introducing a grubby measure—and I have done so with relish. I shall now move on to the merits of the issue that the order reveals. Not for the first time in matters of legal public policy, the Government have asked themselves the wrong question and, unsurprisingly, have come up with the wrong answer. Unfortunately, as with the Access to Justice Act 1999 and the reforms of the legal aid system at the end of the 1990s, the Government have failed to ask themselves one or two important questions.

Why is the criminal legal aid bill, particularly as used by the defence, running out of control, as they would see it? Why do a very small percentage of cases use up a very large proportion of the criminal defence legal aid budget? The Government do not pursue that question sufficiently far before they reach an answer. Their solution is to cut the length of trials and abolish access to a jury in serious fraud cases, because it is in such cases that many lengthy jury trials occur. The Government feel that that will solve the problem.

What the Government fail to understand is why a small percentage of cases are both expensive and long. The Minister was good enough to doff her hat at one reason why that is the case when she said that the Opposition would no doubt suggest that better case management might provide part of the answer. In fact, it provides a considerable part of the answer.

I do not say that simply because I have read the evidence that the Bar Council has provided. I am reasonably sure that the Minister will have received from the Bar Council the outline responses, and perhaps even the detailed responses, of what I shall loosely call the Dutton inquiry into the issues that we are discussing. If she has not received them, she should have done.

Were the hon. Lady to read that report, she would find that it contains compelling evidence that suggests that better management of cases would have a marked, and far better, effect on the quality and length of the cases that we are seeking to deal with. My experience as a civil jury advocate suggests that better case management will have a marked and direct effect. My experience as a Crown court recorder, dealing with criminal cases, just across Parliament square, also leads me to conclude that better and more effective case management would have a far more beneficial effect than this measure.

Mr. David Kidney (Stafford) (Lab): Although it is true that the Bar Council paper refers to the working party’s focus on costs, there is nothing in section 43 of the 2003 Act about saving money. However, there is something in subsection (6) about effective management practices in trials to avert the need for making an order to dispense with a jury.


 
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Mr. Garnier: I know that there is nothing in section 43 of the 2003 Act that deals with cost. I do not know whether the hon. Gentleman has been a Parliamentary Private Secretary—[Interruption.] Well, it is high time he was one. If he has any understanding of the communications system between the Treasury and spending Departments, he will know that one does not need to include in the Bill the fact that the Treasury wants a particular result. The Treasury does not like writing large cheques for the criminal defence legal establishment, and says to the Home Office or the Department for Constitutional Affairs, whichever Department is dealing with this aspect of public policy—they seem to swap it about—that it does not like Departments to spend lots of money. The Treasury says, “Would you please engineer a set of circumstances whereby we can save ourselves an awful lot of money?” Of course, there is no question of the Chancellor of the Exchequer writing into the Bill the sort of thing that the hon. Gentleman suggests.

I shall touch on some of the recommendations that the Dutton inquiry has made, because they are worth considering before the Government rush headlong into inviting their majority on this Committee to do their bidding. I add, in parentheses, that even if the parliamentary arithmetic does not favour us in the House, or in this Committee, I hope that my noble Friends and other Lords from other parties will not feel themselves under any obligation whatever—in view of the gross breach of an undertaking—to do what they normally do, which is not to vote against secondary legislation in the other place.

If one reads the 19 pages of the report of the working group of the Bar Council general management committee on long and complex cases, it is clear that the fact that a jury was present and dealing with the case had no marked effect on the length of the trial. That conclusion was based on evidence from who that had tried those cases, from members of the Bar and from other interested parties involved in those cases. The length of the trial was decided by the quality of case management, or lack of it—first, in deciding what evidence was required, and secondly, in deciding which charges should be laid against which number of defendants. Thirdly, in what detail should the court go into the history of the matter before it? Was it better to pick up one particular time and date, or two or three or four particular times and dates, when an act of dishonesty had been committed, or was it necessary—as happened in one case that had fallen out of control—to go through 13 years of alleged misconduct in order to reach a particular set of decisions?

What is required is not only proper preparation from the SFO or the Crown Prosecution Service, but a proper experienced and trained team of advocates to concentrate on what must be done. The report deals with that matter.

A proper attitude towards disclosure is also required. There was one case—members of the Committee can look at the report for themselves—in which the prosecuting team simply handed the keys of a warehouse to the defence and said, “That’s a warehouse full of documents—you go through it and
 
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decide what you think needs to be disclosed.” That is a dereliction of a prosecutor’s duty. It is the prosecutor’s duty, as an officer of the court, to identify the issues that are relevant to prove the case, and to identify—and disclose to the other side—the documents relevant to the case. If the keys to a warehouse are handed over and, let us say, there are 10 defendants, each of whom is separately represented—as they are entitled to be—that means 10 times an unnecessary piece of work. If the Government are trying to push this measure through in the face of examples such as that, which can be managed out of the system, that demonstrates to me the foolhardy nature of the statutory instrument.

There are a number of examples given in the report, and 10 recommendations are made. I urge the Government to take account of those recommendations before they consider the matter further. The recommendations are all based on evidence and on 11 particular cases. The Minister said that there were not many such cases. In one example, £44 million of public money was spent on the defence of a case that involved £2 million-worth of fraud. That came about not because of the jury, but because of the failure of the trial judge and the prosecuting team to get a grip on the issues in the case. There are other examples—four, I think—in which a judge got a grip on the timetable and the prosecutors got a grip on the issues, and matters were brought to an effective conclusion.

Hon. Members should bear in mind the fact—as a member of the Bar, you will know this, Mr. Chope—that a trial that leads to an acquittal is not a failure in the justice system any more than a trial that leads to a conviction must be considered a “success.” It has sometimes worried me that Members of the House think all acquittals are failures and all convictions are successes. I am afraid that the criminal justice system does not—or should not—work on that basis.

I know that many Labour Members will wish to speak up for the measure, and I do not want to prevent them from doing so, so I shall just make one final point. I can speak from some experience as a civil jury advocate. In the late 1970s I acted for the Daily Mail in a case called Orme v. Associated Newspapers, which was brought by the British leader of the Moonies. It was a libel action—a jury action—and lasted six months. As a consequence, the head of the civil division of the Court of Appeal, the Master of the Rolls, recommended to the Government that in long and complex cases involving a civil jury the trial judge should be able to decide that the jury could be dispensed with—but that power is very rarely used.

However, the real change in the civil jury system came earlier than that, in the early 1970s, when the Lord Chief Justice and the Master of the Rolls appointed a judge specifically to speed up the management of jury actions. They appointed Sir Michael Davies—Mr. Justice Davies, as he then was—as the judge in charge of the jury list. And by overseeing and managing cases, by making orders that had to be obeyed by the respective parties to the
 
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actions, subject to cost penalties, the efficiency of that aspect of the civil jury system and the High Court trial system was markedly improved.

We should learn lessons from what happened in the 1970s. This is not new; it does not require inventions, only an understanding of what has happened before. What is required is for the Lord Chief Justice to appoint a judicial manager of such trials to shape them in an effective and efficient manner, and to appoint other experienced judges who can deal effectively with slack prosecutors who do not apply their minds to the nub of the case, and with slack defence teams. Together, bench, Bar and the Government can produce, cheaply and effectively, a fair justice system that does not do what the Government wish to do—to bend the rules and set up a system calculated to lead to injustice.

I urge the Government to think extremely carefully, first, before they breach undertakings, and secondly, as a consequence of those breached undertakings, before they produce ineffective and rather silly measures such as this.

5.1 pm

 
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