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Orders of the Day
Fraud (Trials without a Jury) Bill
Order for Second Reading read.
12.32 pm
The Solicitor-General (Mr. Mike O'Brien): I beg to move, That the Bill be now read a Second time.
I welcome to yet another debate on this issue many of the aficionados who attended the previous debates. I am sure that we will cover much of the same territory, important as it is.
Fraud does enormous damage to our national economy and the Government are determined to modernise our criminal justice system to tackle it. Our policy has four main strands. We recently took through the House the Fraud Act 2006, which will create a statutory offence of fraud and modernise much of our law on deception. Secondly, the Government have also carried out a cross-departmental review of fraud to examine the prevention, detection, investigation, prosecution and punishment of fraud. We published a report in July, and consultation finished on 27 October. We are now considering our response.
Thirdly, new protocols and procedures for our courts have been introduced by the prosecution authorities, the Attorney-General, the Lord Chief Justice and others to improve the management of large criminal cases. The Bill is the fourth element. It will reform our criminal justice system to enable it more effectively to try a small number of serious and complex frauds without a jury.
Philip Davies (Shipley) (Con): Will the Solicitor-General give way?
The Solicitor-General: In just a moment.
Fraud takes many forms. It can be complex—international fraud, involving vast sums of money, can be committed by bankers, accountants, con men and even lawyers. The evidence can run to thousands of documents. Alternatively, the fraud can be on a smaller scale—benefit fraud is an obvious example. Our criminal justice system prosecutes benefit and minor fraud with efficiency, but it has found it more difficult to prosecute complex and serious white-collar fraud. Complex cases can last a year or more. Although the success of the Serious Fraud Office means that convictions are secured, contested trials can be long-drawn-out and difficult.
Mr. Henry Bellingham (North-West Norfolk) (Con) rose—
The Solicitor-General: I shall give way in a moment.
The Government believe that the criminal justice system needs to be as effective at dealing with complex white-collar fraudsters as it is at tackling blue-collar fraud. As part of our wider package of policies, this Bill will help to ensure that that happens. I give way to the hon. Member for Shipley (Philip Davies).
Philip Davies: Is the Minister really saying that he has such a low opinion of the abilities of the great British public that the Government feel that they are unable ever to muster 12 people who can understand a fraud trial?
The Solicitor-General: It is not our case that jurors are not clever enough to understand complex fraud cases. That is a straw man that the Opposition seem to put up each time we debate this issue. That is not our claim. I want to go into the matter of jurors, but the point that the hon. Gentleman makes does not reflect our approach to this issue.
Mr. Bellingham: What is the difference between a very complicated fraud case and a very complicated murder case? For generations, correctly directed juries have been reaching safe verdicts on both types of cases.
The Solicitor-General: Complex and serious fraud cases have been a particular problem in the courts for a long time. Murder cases, by and large, can be resolved relatively quickly and the issues are often very straightforward. Complex and serious fraud cases are an entirely different matter, with cases lasting for six months, a year or more, having multiple defendants and involving the discussion of complex issues. We want to ensure that we tackle those issues in a sensible and straightforward way.
Mr. David Winnick (Walsall, North) (Lab): Although I have reservations about this measure, I will vote for it on Second Reading. My great concern, however, is that if this measure is carried into law, as it probably will be, it should not escalate into a situation where jurors will not be used in other criminal cases.
The Solicitor-General: If I understand my hon. Friend correctly, he wants to know if there is any wish by the Government to extend the provision to a range of other cases, and the answer is that there are no plans to do so. It is our view that there is a long history of problems in this area of law.
For many years, there have been calls for serious and complex fraud trials to be conducted by judges. Back in 1986, the influential Roskill report recommended that these cases should be tried by a special fraud tribunal, consisting of a judge and a small number of specially qualified lay members instead of a jury. In 1998, most respondents to a consultation paper, “Juries and serious fraud trials”, broadly supported replacing the jury in serious and complex fraud trials. In October 2001, Lord Justice Auld considered the issue in his review of the criminal justice courts in England and Wales. He recognised the benefits of trial by a single judge but suggested instead a tribunal that included people with business and financial experience.
The Government sought views on the issue in a general consultation on the Auld report following the publication of our White Paper “Justice for All”, and after taking account of comments decided in favour of judge-alone trials.
Mr. Robert Marshall-Andrews (Medway) (Lab):
My hon. and learned Friend mentioned the extensive protocol to deal with long fraud cases that came into effect on 27 March last year. One of its effects undoubtedly will be that most of the issues that
lengthen these cases will be tried before a jury has even been empanelled. That protocol has been in effect for just over a year. Why did not the Government wait to see the effect of that before they introduced the Bill?
The Solicitor-General: When Roskill made recommendations, the view taken by the Government at the time was that new legislation—setting up the Serious Fraud Office—and a number of other steps would deal with the problem of serious and complex fraud cases. They thought that they did not have to make the change recommended by Roskill. In the past two decades, experience has shown that although such administrative changes are welcome and have the effect of speeding up trials, they are in themselves insufficient to deal with the overall problem. The Government’s view, therefore, is that section 43 of the Criminal Justice Act 2003 is the way forward. It will ensure that we deal with such cases more effectively.
Mr. Dominic Grieve (Beaconsfield) (Con) rose—
Mr. Jonathan Djanogly (Huntingdon) (Con): Will the Solicitor-General give way?
The Solicitor-General: I am still dealing with the question asked by my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews), and after that I must give way to the hon. Member for Beaconsfield (Mr. Grieve).
To continue, we welcome the protocol, which is an important way of speeding up some of the handling of more lengthy and complex cases, but our view is that it is insufficient of itself.
Mr. Grieve: Will the Solicitor-General confirm that the number of cases per annum that will be covered by the provision is tiny? The figure given was half a dozen or so. Given that we have a new protocol and the new Fraud Act 2006, which is supposed to simplify the trial of fraud, and given that—as I am sure he accepts—many trials, such as health and safety cases, now require juries to consider massive amounts of technical documentation, why have the Government singled out that discrete area to get rid of juries? Why would they do so, unless the measure is to be the first foot in the door for a much more general attack on the jury system?
The Solicitor-General: First, the measure is not the first foot in the door, as the hon. Gentleman put it—far from it—and it is not a general attack; that is complete nonsense. However, he is right to say that it will affect only a small number of cases. The figure is variously estimated, but it is certainly put at fewer than 20. The Serious Fraud Office considered the number of cases over the past five years that lasted longer than six months and, of those 26 cases, only about six lasted more than a year. It believes that, under its way of handling the issue, about six cases a year would probably be affected by the measure. I do not want to be tied to a particular figure because, as the hon. Gentleman knows well, in the end it will be a decision for the Lord Chief Justice and those making the decision in individual cases. However, our estimate is that the number will be between half a dozen—that is the more likely figure—and 15 to 20 cases.
The Solicitor-General: May I just answer the question posed by the hon. Member for Beaconsfield? I shall then give way to some others. We want to ensure that 99.9 per cent., or 28,000, cases tried in the Crown court will continue to be tried by a jury. The number of cases affected by the change will be tiny, compared with the 28,000 contested cases that are tried before juries in the Crown court each year. It is worth making that point.
Mr. Djanogly: The Solicitor-General continually says that experience has shown that juries should be got rid of, but today he has not shown—and the Government have not shown to date—how getting rid of juries will improve the situation. Before they get rid of hundreds of years of British history, they should have to prove that, and they have not yet done so.
The Solicitor-General: If the hon. Gentleman will give me a little time to proceed with my speech, I suspect that he will find that we have a great deal of evidence that, in the past, the House has found the measure to be the appropriate way of making the change.
I believe that the House will support the Bill and agree that it is the way forward. Judges, too, have taken that view in a whole series of cases. In the Maxwell case, Mr. Justice Buckley talked about his need to sever cases. He said:
“When using his powers of severance the trial judge recognised that it would prevent the prosecution from putting before the jury the full weight of the case”.
He said that accepting the submission that the second trial should not take place
“is to accept that in a serious and complex fraud, the limitations of jury trial prevent the prosecution from presenting a case which fairly and adequately represents the fraud alleged. If that is so then jury trial is unfair and inappropriate.”
Other judges have expressed similar views.
Paul Farrelly (Newcastle-under-Lyme) (Lab): As my hon. and learned Friend rightly said, calls for the special treatment of a small number of cases have been made for more than a decade. He referred to Maxwell, and I have with me a copy of the Financial Times from January 1996, which carries the headline, “Maxwell brothers cleared of fraud”. I covered the trial at length when I was a member of the press, and that decision came as a surprise to a great many people. Many people in the fraud prosecution service think that it is high time that the Government addressed the problem, as they are now doing.
The Solicitor-General: I am grateful to my hon. Friend for his support. It is necessary to address those issues.
The Solicitor-General:
Will the hon. Gentleman bear with me while I reply to my hon. Friend the Member for Newcastle-under-Lyme (Paul Farrelly)? Let us calm down the vibrations and not become too excited, as we
have discussed these issues before. They are important, and it is right that we consider the arguments calmly and carefully.
The view taken by judges in a series of cases is that the issue must be addressed, which is why the Government introduced the proposals. When the Blue Arrow case was under way, the trial judge, Mr. Justice McKinnon, had to sever the case into two trials to make it “manageable for the jury”. He said that
“no jury should be asked to cope with what this jury had had to endure.”
“there is a significant risk of a miscarriage of justice resulting from the volume and complexity of the evidence”.
It noted that the jury retired with 956 pages of exhibits and such recollections as they may have had of the evidence given by 94 prosecution witnesses seven to 11 months earlier, and of the final speeches of counsel, which were delivered 59 to 65 days earlier. As a result of that long deliberation, in 2003 the House passed section 43 of the Criminal Justice Act.
Mr. Grieve: May I touch on the point about specimen counts? As a result of the Domestic Violence, Crime and Victims Act 2004, it is possible to hold a trial of specimen counts by jury, and a trial of remaining counts by the judge alone. The Government do not appear to have taken that into account in introducing the proposals, so I would be grateful if the Solicitor-General dealt with the issue.
The Solicitor-General: The Government did take that into account—after all, we introduced the legislation to enable such trials. However, we need to deal more broadly with serious and complex fraud cases. Parliament indicated in the Criminal Justice Act 2003 that it wanted to deal with the problem, and we believe that it should do so.
Keith Vaz (Leicester, East) (Lab) rose—
The Solicitor-General: I am afraid that I shall not give way as I wish to make progress. However, I will accept interventions later.
Section 43 of the Criminal Justice Act provided for judges in serious or complex fraud cases to order, following an application by the prosecution, that the trial should be conducted without a jury. The judge must be satisfied that the length or complexity of the case is likely to make the trial so burdensome on the jury that the interests of justice require serious consideration to be given to the need to conduct the trial without a jury. An important safeguard is that an order for a judge-only trial can be made only with the consent of the Lord Chief Justice. There are other safeguards. The prosecution must believe that the criteria are met, and the judge must agree. Furthermore, the Lord Chief Justice must grant his consent.
When that legislation was passed by Parliament, its implementation was subject to a requirement for an affirmative resolution of both Houses. That unusual requirement was inserted into the Bill in its closing stages, just before it was enacted in November 2003. It was not the Government’s intention that it should constitute a permanent obstacle to commencing section 43, because in that case there would have been little purpose in
enacting the section at all. In any event, when the matter was brought back before the House earlier this year, an affirmative resolution was passed by the House. It became apparent, however, that the combined Opposition would use their majority in the other place to frustrate that affirmative resolution. Therefore, seeking to move forward by consensus, the Government opened further discussions with the Opposition to see whether we could reach an agreement about the way to deal with serious and complex fraud cases. After discussions between the Front-Bench teams, it became clear that no agreement was likely to be forthcoming.
The Government take the view that the time has come to give effect to the provision that Parliament passed in 2003, which was likely to be frustrated in the other place. We believe that, as we indicated in our manifesto, reform of trials in serious fraud cases is necessary. That is why we have introduced the Bill.
Keith Vaz: Will the Solicitor-General tell us a little about the consultation process? I recall that the last time the matter came before the House a seminar was organised—attended by members of the Government—and out of that came the present proposals. Apart from the discussions that he mentioned, have there been any further meetings involving members of the profession and others to discuss this important constitutional change?
The Solicitor-General: There has been discussion of the change over a long period, involving submissions to Lord Justice Auld and, before that, to Lord Roskill, and also submissions in response to White Papers that have been published. The various professions and members of the public have therefore had opportunities to express their view over a long period. There was a long consultation before the 2003 Act. Since the order was passed by the House but not proceeded with in another place, there have been discussions with the Front-Bench teams of the other parties to see whether there was a possibility of compromise that would enable us to proceed with what we believe to be a necessary proposal. We were unable to secure that level of agreement, which is why we are where we are.
Mr. Edward Garnier (Harborough) (Con): The Solicitor-General says that there are three safeguards—the prosecution must persuade the judge, the judge must be persuaded, and the Lord Chief Justice must give his consent. Presumably, the judge will be persuaded after oral argument and possibly paper submissions as well. In order for the Lord Chief Justice to give informed consent, am I right in thinking that he, too, will have to have an oral hearing in front of him, or he will have to read himself into the case? If he is not properly apprised of the issues in the case, his consent will be formal only. Can the hon. and learned Gentleman assure me that the safeguards that he suggests are so good will indeed be so good?
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