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The Solicitor-General:
To some extent, we will have to rely on the good offices of the person appointed as Lord Chief Justice, and I think that we can do that. We
do not envisage an oral hearing. The aim would be for the Lord Chief Justice to look at the facts of the case and take a view, bearing in mind the view of the judge who heard the initial application, which can take place with submissions by the various parties. The Lord Chief Justice will then have to give his consent to the process. That is a strong safeguard to ensure that the procedure will take place only in cases that fit the criteria and in which a jury is not necessary.
Simon Hughes (North Southwark and Bermondsey) (LD): The Solicitor-General knows that the 2003 Act would not have been passed had agreement not been reached to require an order later on. Since that agreement three years ago, we have had the report of the Jubilee line case stating that jury trial was not a factor in the failure of the case, and a juror saying that jurors entirely understood the case. Has the hon. and learned Gentleman any new evidence from new sources that suggests that with all the other changes that are meant to shorten trials, the absence of juries will be of benefit? Has there been any new evidence over the past three years to support his argument?
The Solicitor-General: The House has considered the matter since 2003 and taken a view on it, as it did only a few months ago. As regards evidence, the hon. Gentleman mentioned the Jubilee line case. He is right to say that the jurors said that they understood the evidence in that case. It is not our argument that jurors are incapable of doing that. It is our view, however, that the report on the Jubilee line case makes it clear that both during the trial and subsequently, a number of jurors suffered considerable stresses as a result of being involved in such a long and complex case. The employment of some of them was affected, and some have experienced difficult circumstances since then.
Although it is not clear that the Jubilee line case would ever have met the criteria for section 43—that is the view that the inspector reached—the stresses on the jurors were considerable. With the report of the inspector on the case, we had a great opportunity to see what happens in such cases. Obviously, a jury cannot be questioned during the course of a case which has come to a result. That one did not, so the inspectorate was able to ask the jurors what happened and how they felt it progressed. That does not provide evidence that such a case would necessarily fit the criteria of section 43, which the inspector doubted, but it tells us that the stresses on a juror can be substantial not only during a case, but subsequently.
Mr. Douglas Hogg (Sleaford and North Hykeham) (Con): The Solicitor-General has drawn attention to the stresses. I have no doubt that there were stresses on the jurors—I have the report of the inspector—but stresses occur in many long cases involving terrorism or conspiracies. Once we rely on stresses as constituting a good argument for doing away with jury trials in fraud cases, that precedent will certainly be extended to many other classes of case.
The Solicitor-General:
We have no intention at this stage—[Hon. Members: “At this stage?”]—of taking any of the steps that the right hon. and learned Gentleman suggests. We have no plans to do so. Let me be very clear about that. Hon. Members ought to take
cognisance of the burden on jurors. We cannot ignore it and pretend that we can put people in situations where their lives are massively disrupted for a year or more, and where their jobs may be lost, their promotion hampered and their relations with their employers damaged, as we saw in the Jubilee line case report. We need to take such factors into account. I am sorry that the right hon. and learned Gentleman does not agree.
The Solicitor-General: I must make progress, but I shall give way to the hon. Member for Enfield, Southgate (Mr. Burrowes), as he has stood up on several occasions.
Mr. David Burrowes (Enfield, Southgate) (Con): May I press the Solicitor-General further on the up-to-date evidence on the special treatment proposed in the Bill? Let us not go back to Blue Arrow or the Jubilee line. In the past year, since the protocol was put in place determining criminal procedure rules, about six cases have come up. Which of those has not benefited sufficiently from the new rules to justify the current proposals?
The Solicitor-General: It is not a matter of cases benefiting from the rules. The rules will benefit all subsequent cases. I have repeatedly stated that our programme for dealing with fraud involves changes in the law, which we have introduced, and changes in procedures, such as the protocols that the hon. Gentleman mentions, which need to be made. It involves the fraud review, which is examining the broader aspects of fraud—the investigation of it, the prosecution of it and how that can be done more effectively. Putting in place legislation such as the Bill will enable us better to deal with the most serious, complex and lengthy fraud cases in a more effective way and bring about justice more effectively.
The Solicitor-General: I have given way to the hon. Member for Beaconsfield on two occasions. I shall give way once more, and then I shall make progress.
Mr. Grieve: The Solicitor-General has touched on an important issue. As he is well aware, many trials that have lasted a long time would never qualify for trial by judge alone, even under the Government’s proposals. For instance, the Jubilee line case, which is the subject of much comment, would almost certainly have been sent to be tried by a jury. It was not expected to be very long and was not very complex. Could the Solicitor-General be a bit more precise about the sorts of cases that he wants to cover? Otherwise, we are left with the impression that the Government’s proposals are designed to be much wider in scope.
The Solicitor-General:
We are proposing what we say we are proposing. Cases such as Blue Arrow, Maxwell, Da Costa, Talbot village trust and Cushnie involved the sorts of issues that might have been subject to a change as a result of section 43. A range of cases could
be covered, mainly those that are very lengthy. The hon. Gentleman is right about the Jubilee line case. The inspectorate said that it might well not have fitted within the criteria, but that is not the point; other more complex and difficult cases might have done so.
The Solicitor-General: I will give way to my hon. and learned Friend later, but I need to make some progress.
Our criminal justice system needs to deal effectively and fairly with all kinds of crime, but sometimes it fails to do so in the most serious and complicated frauds because defendants do not face trial on charges that adequately reflect the full criminality of the accusations that are made against them. That is the key point. From time to time, trials collapse under the pressure of evidence, with the result that justice is not done and the taxpayer is left to meet substantial costs. The current position is that the greater the scale and complexity of the fraud, the less likely it is to result in a successful prosecution. That cannot be right. We cannot accept a double standard whereby petty frauds are easy to prosecute and frauds on a grand scale which, although small in number, can have an impact on many victims are too difficult to prosecute. Despite attempts to keep trials within reasonable bounds, complex fraud cases often last for many months. In the four years from 2002 to 2005, the Serious Fraud Office reported that 26 fraud trials lasted for more than six months, six of which lasted for more than a year.
The prosecution and the courts already do much to keep the length of trials to a minimum. We welcome the Lord Chief Justice’s protocol of March 2005, which will promote robust and well-informed case management. That will help, but it is not an adequate answer of itself. The complexity and potential length of some serious and complex fraud trials still resists the best efforts of all involved to reduce the burden on the jury. In order to make them manageable, trials are too often carved up in a way that prevents the full criminality of the fraud from being exposed in the trial. That cannot serve the interests of justice. Cases are split into separate trials by the severing of indictments. Even then, it is sometimes necessary to restrict the material put before the court, in order to make it manageable and comprehensible to a jury. Evidence is pared down and charges reduced to the main charges. Secondary defendants, who should perhaps be prosecuted notwithstanding, are not brought to justice because it would complicate the trial too much. The result can still be the worst of all worlds—enormously long trials that are intolerable for the unfortunate jurors, but do not enable the full criminality alleged in the most serious fraud cases to be presented to the court.
Mr. Djanogly: Will the Solicitor-General give way on that point?
The Government’s proposal for judges to try cases without a jury is not a general attack on jury trials—on the contrary. As I said, there were 28,000 trials before a jury in the course of the past year. The provision will affect a few trials each year; 99.9 per cent. of jury trials
will be unaffected. Furthermore, the Government are looking to take steps to examine the issue of Diplock courts in Northern Ireland. If we can do that, there will more jury trials than ever. In fact, I am a great believer in jury trials; I was a criminal lawyer before I came here. They are a good way of deciding guilt or innocence in the Crown court.
That said, the vast majority of trials take place in magistrates courts and do not involve a jury, so there is no immutable principle that we must always have a jury to do justice. Every day, in criminal courts across the country, people elect in either-way cases to allow district judges—judges sitting alone—to decide guilt or innocence in trials. If we went down to Horseferry road magistrates court or to other London courts today, we could well see that happening. It often happens, although not in summary-only cases, with the consent of the accused. No one should argue that justice is not being done because no jury is present. Many of these cases result in people going to prison. Thousands of people are tried in this way every year. Someone who gets arrested for benefit fraud and charged with deception can be tried by a judge sitting alone, so it surely cannot be said that a senior judge sitting alone could not do justice in the case of someone arrested for a serious white collar crime.
Is the argument that having a jury is a great principle only if it happens in a particular kind of court—the Crown court? Either that is a principle or it is not. Daily in this country, justice is delivered in trials before district judges or before a single judge in our civil courts. In our view, a High Court judge can do justice for that very small number of white-collar fraudsters. Juries are right for some cases, but not for every case. The real issue is how we can best do justice. Where justice can be delivered in a better way, we should act on that. Our argument is that in a few cases a year out of the 28,000—only in the most serious and complex fraud cases—there are good reasons for saying that justice can be done by a judge sitting alone.
Mr. Marshall-Andrews: This is now a rather antique intervention on the subject of the Jubilee line. As my hon. and learned Friend knows, weeks before that trial collapsed, defence counsel wrote to the Attorney-General to point out that that was going to happen. It had nothing to do with juries; it happened because a lot of issues that should have been sorted out years before the jury members were empanelled were being dealt with while they were there. It was a classic case of awful case management, and the Attorney-General was written to about it. On 21 June I asked my hon. and learned Friend, in this very place, to find out and to let me know what steps the Attorney-General took. He said that he would but has, no doubt inadvertently, forgotten to do so. Can he tell me now?
The Solicitor-General: The Attorney-General set all that out in a statement in the other place. If my hon. and learned Friend has not yet had an opportunity to read it, I will ensure that a copy of the relevant Hansard is brought to his attention. I realise that he will be a religious student only of this place’s Hansard, but sometimes statements in another place make helpful reading too.
Mr. Garnier: The Solicitor-General said that lengthy cases place an undue burden on the jury. However, as the hon. and learned Member for Medway (Mr. Marshall-Andrews) will testify, lengthy cases take place week in, week out at the central criminal court, the Old Bailey, sometimes lasting for months—yet the Government do not suggest that they should be removed from the jury system. [Hon. Members: “Not yet.”] They have no present plans. What principle singles out fraud cases but does not draw in lengthy terrorist or other criminal cases at the Old Bailey?
The Solicitor-General: There are two key issues. First, this area has a long history, whereas others do not, and we do not intend to move into those. Secondly, some of these cases involve very complex evidence having to be presented to the jurors. The jurors on fraud cases sometimes face the physical and mental task of listening to complex and obtuse evidence involving a large number of defendants making interlinked financial transactions over a number of years, with detailed cross-examination— [ Interruption.] I am trying to answer the point raised by the hon. and learned Member for Harborough (Mr. Garnier), but if he insists on chuntering on, he is not going to hear me. Either he is serious about making this point, in which case he will listen to the answer, or he is not.
Mr. Garnier: Will the Solicitor-General give way?
The Solicitor-General: No. Perhaps I can answer the hon. and learned Gentleman’s question, then he can intervene if he really wants to. Let us have a sensible discussion, rather than heckling from the sidelines.
Jurors often have to listen to somewhat complex, obtuse evidence involving a large number of defendants making interlinked financial transactions over a number of years, with detailed cross-examination requiring constant cross-referencing to documents and records. Many of the complex deals and financial transactions that can be involved in serious and complex fraud cases will be outside the experience of members of the public, facing jurors with a steep learning curve to master the financial theory as well as the practical evidence.
Mr. Garnier: One good chunter deserves another, I would have thought. I thought that the Solicitor-General’s case at the outset was that he was not advancing what I would rudely describe as the “stupid jury” argument, yet he just seems to have done that. He must make up his mind: either juries are or are not capable, and either the Government’s case is or is not based on that argument. He cannot have it both ways.
The Solicitor-General:
I am not advancing what the hon. and learned Gentleman describes as the stupid jury argument—not at all. I want to make it very clear that it is not our claim that juries are incapable of understanding complex fraud cases. What we say is that, in the words of Lord Justice Auld, the length of such trials—some of which last for several months—represents an unreasonable intrusion on jurors’ personal lives, and, where they are in employment, their working lives, going way beyond the conventional requirement for such duty of about two weeks’ service. Juries can cope with long trials, but having to sit on a
jury for six months, or sometimes more than a year, is an excessive burden on members of the public. That is my first point.
Mr. Humfrey Malins (Woking) (Con): Will the Solicitor-General give way?
The Solicitor-General: I am still answering the hon. and learned Member for Harborough. If hon. Members calm down a little, we will get through this.
Secondly, our criminal justice system requires juries to listen to the presentation of oral evidence, and there is sometimes very complex and obscure evidence that requires knowledge of complex financial dealings. A jury trial, with its oral tradition, is not always the best place to expose and explain that level of complexity, in my view.
Mr. Hogg: Will the Solicitor-General give way?
As I have already said, the need to present oral evidence in trials has led the courts to divide cases into two or three trials so that the number of defendants and the complexity of the case before a jury is reduced. I have already referred to the comments of Mr. Justice McKinnon, who talked about having to split cases to make them manageable for a jury, and suggested that no jury should be asked to cope with what a jury had had to cope with in a particular case of his. As the Court of Appeal has indicated, there is a risk of a miscarriage of justice. So my second point is about the level of the burden on juries.
My third point is that, as Lord Justice Auld said, all this has the effect of making juries even less representative of the community than they are already. The court often excuses many people who would otherwise be able to make a short-term arrangement to do their civic duty. Long trials are a great personal strain and burden on everyone involved.
Mr. Malins: Will the Solicitor-General give way?
The Solicitor-General: I am still dealing with the point raised by the hon. and learned Member for Harborough. It was a serious point, and I am dealing with it.
As far as we are concerned, the juries that are used in these long cases—as they have been in the past—have sometimes lacked a broad representative capacity. The general idea is that we choose a jury randomly, and that it is broadly representative of the public. However, because of the nature of this kind of trial, we have not always been able to ensure that that is the case.
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