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Stephen Hesford: The Bill—like section 43 of the 2003 Act, which we have already passed—is all about case management. The hon. Gentleman made that point when my hon. and learned Friend the Solicitor-General said that a High Court judge would do some reading in advance of cases. This is a pre-trial review process, a concept with which the hon. Gentleman will be very familiar. Does he not accept that if a High Court judge gets a grip on one of these cases at an early stage, case management is likely to improve? Once seized of the position, the judge will almost certainly want to ensure that cases do not collapse in the way that the hon. Gentleman has described.
Mr. Grieve: The hon. Gentleman makes a perfectly reasonable point, but the same applies to jury trials. Judges ought to “read themselves into the evidence” before a case starts, and in my experience of long and complex fraud trials—indeed, all long and complex trials—that is what they do. A much more complicated issue, which we have not resolved, arises when the material that the judge “reads himself into” at the outset turns out to be different from the material that is ultimately presented in the course of a trial. We have heard nothing from the Solicitor-General about that procedural issue and the real risk of miscarriages of justice. I shall say more about that shortly.
Yes, there should be good case management, and I am sure that case management can be improved. Stephen Wooler’s report on the collapse of the Jubilee line case shows exactly what can go wrong with trials, and it has nothing whatever to do with juries.
Mr. Djanogly: Cases may take five or even 10 years to come to court, and that often has nothing to do with juries. When such cases go before a jury, they are frequently thrown out after 10 years’ gestation.
Mr. Grieve: My hon. Friend is absolutely right. Delay in any criminal justice process is a bad thing, and I know—not so much from working on fraud cases, but from working on health and safety cases, including prosecuting them—that cases take far too long to get to court. One would like them to go faster.
Delay is sometimes due to the investigation process. I do not think that it is usually due to the lawyers, but bringing everybody together in a court requires a bit of organisation, and it will still require organisation even when there is not a jury. There are always plenty of people to make up the jury panel—they can be found without great difficulty—and co-ordinating the diary availability of lawyers, defendants, witnesses and judges is by far the more complicated and time-consuming process in bringing a case to court. That is where the delays arise.
The Home Office propaganda statement goes on to say:
“At present, in some of the most serious and complicated fraud cases, it is not possible for defendants to be tried on charges that adequately reflect the full scale of the accusations against them. This is because in cases that involve a multitude of different offences and defendants, it is necessary to limit the amount of evidence that is put before a jury.”
When I started prosecuting, I was taught by those who knew much more about the subject than I did to keep it simple. Every judge in front of whom I ever appeared
insisted, when prosecutors said they wanted an 18-count indictment—for fraud or anything else—“No, cut it down. The criminality can be adequately shown by far fewer counts.” In my experience, at the end of cases that resulted in a conviction, other matters could often be taken into consideration with the consent of the defendant. Under the Domestic Violence, Crime and Victims Act 2004, where defendants do not agree to matters being taken into consideration, the judge may reach a decision on his own. I am at a loss, therefore, to understand how the Solicitor-General can argue that there is a problem of not showing full criminality, as we have all these important new provisions on the statute book—although I have a funny feeling that the relevant section of the 2004 Act has not yet been implemented, which is characteristic of this Government.
We must also have a sense of perspective. I am sure that there are many people who have committed all sorts of crimes—not just fraud—for which they have never been convicted. I am not particularly concerned about that if they are serving a long period of imprisonment for the crimes for which they have been convicted, and neither I suspect are the public. The truth is that in many cases people are convicted of specimen counts, and it is perfectly adequate for the sentencing that follows to reflect the overall criminality. The Solicitor-General simply did not touch on that in his remarks, which puzzled me very much.
Stephen Hesford: The hon. Gentleman is being very generous in giving way. He and I have debated a number of such Bills over the years—to some effect, if I may say so—but his last point does not do him justice. Is he really suggesting that in a multi-billion pound fraud case there will be a specimen count and the judge will introduce what we used to refer to as TICs—offences taken into consideration—and the defendant will say, “I am going to have a series of other multi-billion frauds taken into account”?
Mr. Grieve: The hon. Gentleman had better ask the Solicitor-General and the Government about that. It was not an uncontroversial proposal when it was put forward under the Domestic Violence, Crime and Victims Bill. We debated it extensively in Committee. Some argued that it might be unfair to defendants. I took the view that, in a fraud involving a repetitive system, there was very little harm in the judge making such a ruling at the end of the trial if the defendant did not accept the further offences. There is a greyer area: there might be different methods of fraud, in which case I would expect each method to be reflected by specimen counts—which seem to commend themselves so little to the Solicitor-General. Therefore, I have to say to the hon. Member for Wirral, West (Stephen Hesford) that the Government have put in place a mechanism for getting round this problem and still having a jury trial. We simply have not heard from the Solicitor-General why it has suddenly been decided that this method is unworkable, or does not even merit proper commentary on Second Reading.
The next thing that the Government say in the Home Office document is:
“In spite of attempts to keep trials within reasonable grounds, complex and serious cases can often drag on for months, which imposes an intolerable burden on jurors. It also means that juries are not properly representative as not many people can afford to give up their normal lives for so long.”
The Solicitor-General has tried to argue that there is something special about long and complex fraud trials, but there patently is not. I worked on a complex health and safety trial lasting many months, in which the jury had to consider technical, engineering material about a pontoon in Ramsgate harbour. Working models of the pontoon were brought into court so that jurors could look at them. I have been involved in other cases that required the same technical expertise, with experts coming to court to explain things to juries. Dozens of lever-arch files, often massive ones, had to be placed in the jury box. Such cases will not be covered by these proposals—
Mr. Grieve: Yet, as my hon. Friend says. From my personal experience, it is crystal clear that juries can be made to understand such material as long as matters are explained in layman’s language, and most advocates should be, and are, capable of doing that. Help from the judge in summing up will also facilitate that. Therefore, I simply do not understand why we have suddenly identified this extraordinary category of evidence that is so complex that juries cannot deal with it.
I am very pleased that yesterday I was able to secure the report on interviews with jurors in the Jubilee line case. That document has not previously been published, and if the Government had anything to do with not publishing it I can well understand why. That document was the basis of Mr. Wooler’s report—
Mr. Deputy Speaker (Sir Alan Haselhurst): Order. I am sorry to interrupt the hon. Gentleman, but it is helpful to those seeking to record and report our events if he directs his remarks to the microphone and not to the Back Benches.
Mr. Grieve: I apologise, Mr. Deputy Speaker. The document I am referring to was prepared to inform that report. It makes for fascinating reading because for the first time the jurors who served on the Jubilee line fraud trial were interviewed, and their impressions of the way the case progressed were recorded, as were their attitudes to their jury service, which lasted many months. In truth, it also gave an impression of whether they were competent to deal with the case—which involved 46 files of documentation of a financial and other nature being placed in front of them.
The conclusion was that the jury appeared to be remarkably co-operative, mutually supportive and cohesive. Jurors said that they all took their task seriously, and most took it very seriously, and they made positive remarks about the process. The majority of the jurors said that they remained very involved in their task as jurors and insisted that they were on top of the evidence and had a good understanding of the case when it collapsed. They knew that there was more evidence to come in the judge’s summing-up and directions.
The jury had a group meeting, and the jury taken as a whole did not appear to have had difficulty in understanding the evidence or the essentials of the case as presented to it. It is stated that from the claims made by the jurors, which were broadly supported by the
understanding that they displayed at the group interview in the afternoon discussion, that they showed quite impressive familiarity with the charges, issue and evidence despite the length of time that had elapsed since the case collapsed, the fact that they did not have their notes or access to documents nor an opportunity to think back and refresh their memories, and the fact that they had not heard all the evidence, arguments and summing up. They recalled particular parts of the evidence and particular witnesses and the substance of their evidence. [Interruption.] I see the Solicitor-General nodding. If ever one wanted a document that provided a better monument to the endeavours of juries in this country, or a better justification for the jury system, it would be hard to find.
Mr. Hogg: Before my hon. Friend leaves this issue, will he remind the House that that jury accepted empanelment on the trial even though they knew that the trial was going to last between six and 12 months? It took much longer, but they were willing to serve up to 12 months, which makes the point about jurors’ willingness to serve in long cases.
Mr. Grieve: Yes indeed, and it is worth bearing it in mind that, under the Lord Chief Justice’s protocol, trials should now last more than six months only in the most exceptional circumstances, and that the reality is that jury service is normally 14 days. Any period of jury service that exceeds 14 days therefore inevitably leads to some jurors being exempt. So when the Solicitor-General starts giving us the extraordinary argument that was repeated in the propaganda—
“It also means that juries are not properly representative as not many people can afford to give up their normal lives for so long.”—
I start to get seriously worried, because that argument could be used in respect of any jury panel that lasts more than 14 days.
Indeed, as the Solicitor-General knows, that argument could also be used against the jury system altogether, because there are some people—Members of Parliament, for example—who are quite likely to be summoned to jury service and then released pretty quickly because of their other commitments, even after the changes that we introduced in the Criminal Justice Act 2003. For those reasons, that argument was one of the weakest put forward by the Solicitor-General. I believe that juries can understand and deal with the evidence, that there are plenty of people in the total electorate who are capable of making up a jury panel to serve for 12 or 18 months, and that they do so willingly and cheerfully. If Members read the report to which I referred, they will see how interested the jurors were in that case. Indeed, the comments and feedback were that they took their job seriously and found it rewarding.
The Solicitor-General:
I, too, have read that report, from which the hon. Gentleman has quoted selectively. He puts up the straw man that we are saying that juries cannot understand such cases, but we have said clearly that we believe that they do understand many such
cases because they spend a long time listening to them. However, what he fails to disclose from that report is the evidence of the substantial burden placed on individuals in terms of their relationship with their employer. Some have had to take substantial time off work, and some have had long-term damage done to their relationship with their employers as a result of serving on a jury for so long. Our argument is not about understanding; it is about the burden on jurors, and I am sorry if the hon. Gentleman does not care about that.
While I am on my feet, let me make one point about the selection of juries and whether or not they are representative. The argument is not so much about representativeness as randomness. Jurors are selected randomly, and because of the way in which long cases evolve, that randomness is eroded because certain people cannot stay on juries. The randomness of selection is undermined by these long cases.
Mr. Grieve: Let me make the position clear. On selective quotation, the Solicitor-General has had one advantage over me: he had the report—and doubtless read it—months ago, whereas it was put into the public domain only very recently. However, he is absolutely right to say that the burden of serving on a jury was considerable for jurors, and some pointed out that it affected their careers. But on reading the report, it is also clear that what really upset them was not the disruption to their lives but the fact that such disruption was for nothing—that, at the end of the day, there were unable to return a verdict.
The Solicitor-General might like to point out to the Prime Minister and to present and past Home Secretaries that the other thing that really upset the jurors in that trial was their portrayal in the media. The jurors felt unfairly portrayed as the cause of the collapse of the trial. They particularly objected to the portrayal of them in the press as being unable to understand evidence or to remember evidence and reach a fair verdict. Some were not particularly concerned but others were very upset. One said, “I was just so angry. To blame us when it was not managed properly—it was a farce.’” It was Ministers who encouraged the press into that condemnation. They latched on to the collapse of that trial in order to raise general arguments against jury trial in its totality.
Mr. Burrowes: I do not want to dwell too much on the Jubilee line case, but are not the comments of Her Majesty’s chief inspector, in recognising the burden that the substantial length of some trials can impose on juries, pertinent? He said in a recommendation that
“There is a need in such cases for more structured support for jurors to enable them to plan more effectively and minimise disruption to their personal and family lives and to provide authoritative assistance in resolving difficulties directly attributable to the length of jury service.”
There was no call, however, to remove trial by jury entirely.
Mr. Grieve:
Yes, I entirely agree with my hon. Friend, who makes another very important point. Juries should not be treated like sheep, shepherded back and forth from the jury room into the jury box. I have seen enough examples in my time of juries not being well treated, usually by the judiciary, which is regrettable.
The truth is that juries are partners in this process, and my experience is that if they are treated like grown-ups, they respond very well to the responsibility placed on them.
Of course, one reason why jury trial is so beneficial is precisely that juries are independent. At the risk of repeating issues of principle—they seem, however, to need repetition in this House—criminal trials of a serious nature go to juries precisely because they are the community. When they do not consider themselves capable of returning a guilty verdict, we should remember that they are, after all, not “the state” in some abstract term, but the ones who might be affected by future criminality. So there can be no better test of guilt or innocence than placing that question in the hands of those within the community who might be the victims of such criminality. However, the route that the Solicitor-General is going down plainly raises the question of the development of the state against the individual.
Mr. Malins: The Solicitor-General seems to be arguing that the issue is huge time burdens on the jury and other pressures on their lives. Does my hon. Friend agree that if there is merit in that argument, the Solicitor-General should have introduced a different Bill stating that all trials of, say, more than three months will be by judge alone? The truth is that the same burdens that the Solicitor-General referred to in support of his argument exist already in respect of many other cases that have nothing to do with fraud.
Mr. Grieve: My hon. Friend is absolutely right, and such a Bill would at least have some intellectual logic. Of course, the difficulty for the Government—indeed, this is what worries me so much—is that the current terrorist trials, which are lasting many months, would then no longer be suitable material for juries. I feel very strongly that such trials must take place in front of juries. I am never quite sure what the Government really think about such matters, because of the Prime Minister’s siren songs about his dislike of our “archaic” criminal justice system, which is always in need of modernisation. I do of course accept that curbing the right to trial by jury in such cases would, at present, be a step too far for the Government in terms of public opinion. That is why they have picked on fraud trials as the first area in which to make their inroads.
Paul Farrelly: The hon. Gentleman is making some very reasonable points about case management—not for nothing does Private Eye call the prosecutor “the serious farce office”—but he is wrong to imply that the Government have picked this Bill out of a hat. As has been said before, it is based on the Roskill recommendations, which are 20 years old. I hope that it will be part of a package of measures—including a serious attempt to address plea-bargaining—that the Government will roll out in the next few months. I should be interested to hear the hon. Gentleman’s arguments on plea-bargaining. At the moment, there is very little incentive for serious fraudsters or insider dealers to cop a plea bargain, because they think that they will be able to bamboozle the jury and get off. If the Bill gives some incentive for such people to cop a plea bargain, because of the prospect of appearing before an expert judge, all the better for the more serious and effective prosecution of fraud and insider dealing.
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