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Mr. Grieve: The hon. Gentleman’s words trouble me somewhat, and I shall explain why. First, there was the implication that trial by judge alone would lead to more convictions because people would use the jury system somehow to slip out of the net. I am not persuaded by that argument. In most of the trials, the only issue that has to be determined is dishonesty. In the Maxwell case, there were many victims and the criminality alleged was considerable, but—as I understand the jury’s verdict—it was not persuaded about the dishonesty of some of the key defendants. That is a matter uniquely for juries. If the jury thought that, a judge might well have to come to the same conclusion.
If we are to allow trials to take place in front of judges on their own, we will have to consider carefully the procedures we adopt to ensure that a fair trial can take place. On that point, the Solicitor-General told us nothing.
Mr. Marshall-Andrews: Juries convict in 85 per cent. of fraud cases and anybody who thinks that they will get an easier ride in front of a jury has no experience of the system, either hands on or hands off. The Maxwell case caused an enormous furore, but the problem was that the main character was not there because he had walked off the back of a boat. That is why the defendants were acquitted, and they would probably have also been acquitted by a judge. Does the hon. Gentleman agree that if a judge had acquitted them, the outcry in the tabloid press that would have followed a white collar judge acquitting white collar people would have been appalling? That is one of the main reasons why the jury system is so valuable.
Mr. Grieve: I agree entirely with the hon. and learned Gentleman and that brings me to my point about procedure. We will be asking judges to deal with long and complex cases and make decisions at the end based not on the balance of probabilities—the civil test—but on whether they are sure that a person is guilty of an offence. That raises problems with which judges should not be saddled. Indeed, I was surprised when the Solicitor-General suggested that the judiciary favoured this change. I have not come across a single judge, especially among the Crown Court judges, who thinks that it is necessary. Indeed, many have said privately, in vociferous terms, that they are against it. The last thing that High Court judges want is to have their credibility damaged when they reach difficult conclusions of fact. If they say that they are sure that certain events happened, three years later a new witness might emerge—which sometimes happens—who calls their judgment about what went on into question. It does not help the reputation of the judiciary who, in the criminal justice division, are the arbiters of fairness, not the deciders of fact. I know that we cast judges in that role in Diplock courts, but that was for exceptional reasons, and it is not in their interests to extend the practice.
The Solicitor-General:
I wish to query the statistic about conviction rates given by my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews). The argument is not about more convictions, but it is important to be accurate. The Serious Fraud Office completed 10 trials involving 23 defendants last year, of
whom 13 were convicted and 10 acquitted, producing a conviction rate of 57 per cent. The average conviction rate over the past five years has been 61 per cent.
If I may, I will also address the question of dishonesty. The highly regarded report by Mr. Justice Auld dealt with the issue of dishonesty and juries, and it said:
“Often there is no need for any value judgment as to the dishonesty of the defendant, for example, where the only issue is whether he is factually responsible for, or a party to, whatever conduct is alleged, and where analysis of the evidence one way or another effectively determines the issue of dishonesty. In cases of complexity, for example, cases where the issue turns on medical or other scientific evidence, the issue is not one of dishonesty at all, or even of assessment of the reliability or credibility of witnesses or the defendant. It is simply one that requires a jury to understand and to evaluate conflicting expert views.”
Mr. Justice Auld deals with the point that the hon. Gentleman makes more effectively than I could.
Mr. Grieve: I am not sure whether that was left out of the Solicitor-General’s speech or was to form part of the concluding remarks, but I disagree with it. Juries are capable of understanding complex evidence. Because of the random nature of their selection they mutually reinforce, and even out disparities of education. In my experience, the evidence is overwhelming that they can return true verdicts according to the evidence and ensure fairness towards those who are accused, quite apart from taking into account the wider need to suppress crime in our society.
We have not heard about the procedure. Judges who are trying these cases will be judges of both law and fact. They will have material placed before them for their consideration that they may subsequently have to rule out of the evidence. They will receive representations and submissions in the course of the trial that jurors would not normally hear, and they will have to handle all those complexities in the course of the trial process. That is not a slight issue, and I am a little puzzled that the Solicitor-General has not provided us with greater detail about how the system would work in practice. I suspect that it will be time- consuming and, indeed, he has already conceded that time saving is not part of the picture. If that is the case, it brings me back to the Government’s propaganda document, which states:
“At times these trials collapse, wasting millions of pounds and failing to ensure justice for victims.”
I repeat, what has that got to do with juries?
I always listen carefully to the Solicitor-General and the Attorney-General, but there is a big difference between what the Law Officers say and what the Government’s Home Office propaganda department churns out for the benefit of the press. That is why the House should be so wary of these proposals. I do not know where the force behind them comes from, but the evidence has been overwhelming in the past 10 years that this Government do not like juries or our present criminal justice system; believe in forms of parallel administrative justice; and are ready to cut corners with our civil liberties and the rights of defendants in order to achieve what they believe to be socially desirable objectives. The risk that the House runs is that supporting this measure will not reduce crime—which
we should prioritise—but will undermine the criminal justice system and confidence in it. We would also open the door to getting rid of the jury system that, I and many other hon. Members profoundly believe, is one of the absolute underpinnings of our civil liberties. On that basis, there is no possibility of our supporting the measure and we will vote against it.
2.8 pm
Mr. Robert Marshall-Andrews (Medway) (Lab): I shall endeavour to be brief. The last time that I said that at the beginning of a speech, they were the only words that I uttered before being stopped. I shall take a little longer on this occasion, although this awful Bill deserves short shrift.
The Bill is a serious attack on civil liberties, that have been our heritage for 800 years. It is unnecessary, unworkable and ill-conceived. If it is ever passed into law, it will almost certainly offend the European convention. It will lead to a two-tier system of white- collar judges trying white-collar criminals. It will involve huge delay in the trying of cases and massive extra expenditure, and it risks bringing the judicial system into disrepute. Apart from that, it is fine.
Mr. Richard Shepherd (Aldridge-Brownhills) (Con): I am not sure why the hon. and learned Gentleman says that the Bill will almost certainly fail before the European convention. Which other competencies in Europe have jury trial?
Mr. Marshall-Andrews: If the hon. Gentleman waits a moment, I shall deal with that as I develop my argument.
I shall start with a generality. The Bill does not stand on its own. From their inception in 1997, the Government have shown a clear aversion to the principle of jury trial. The Criminal Justice Act 2003 made it possible to bring past offences into any court to judge a defendant’s mala fides or mens rea. We can do it in this case—this Government have serious form when it comes to attacking jury trial.
As has been noted, those attacks began way back with the Criminal Justice (Mode of Trial) Bill. That was introduced in 1999, barely two years after the Government came to power. Effectively, it was an attempt to abolish the right to elect trial by jury, and there lies a bitter irony. The Home Secretary of the time, now the Leader of the House, told us that we had no need to fear as the provision would be applied only to minor, either-way offences. Serious fraud or crimes of violence would be left untouched, he said, but now the dog is being attacked from another end.
No doubt the Solicitor-General believes that he is speaking the truth when he states that the Government are not bent on the destruction of the jury trial system, but his assertions give us little confidence. Indeed, I can remember the then Home Secretary telling the House that the mode of trial Bill enjoyed the support of the Lord Chief Justice. In fact, it emphatically did not enjoy his support: subsequently, I discovered that the Lord Chief Justice had written to the Home Secretary four days before that statement was made to the House to say that he had grave reservations about the Bill and that he thought that it would lead to considerable injustice.
That causes one to have less than entire confidence in a Government who say that the judiciary are in favour of the Bill. I can tell the House that judges are profoundly against it. They have said repeatedly in private—although many have also spoken in public that they consider the Bill to be unnecessary and unworkable.
Mr. Hogg: If one needs public evidence of that one need only look at the remarks made in the other place by former Law Lords.
Mr. Marshall-Andrews: I simply concur with that and, as they say in the Court of Appeal, have nothing to add.
This Bill is part of the syndrome of legislative hyperactive disorder in respect of crime and punishment that has gripped the Government ever since they came to power. The House may be interested in the statistics. In the whole of the 19th century, this House passed 34 Bills involving crime and punishment. In the first half of the 20th century, it passed 11. Since 1950, the House has passed 67 such Bills, 27 of them in the past 10 years.
That volume of legislation is not the result of our people becoming more wicked, venal or in need of correction than they were in earlier times. It stems from the fact that such legislation is perceived as a popular—or populist—mechanism for enlisting electoral support. The mechanism is always the same: the Government create a morbid and often false fear of crime, then purport to do something about it by removing one civil liberty or another.
Mr. Garnier: I could not agree more with the hon. and learned Gentleman. Does he agree that the Government’s cynicism is made worse by the amount of legislation that they pass but then fail to implement? In large part, the 2003 Act has already been repealed, much of it before it was implemented. Other parts of that Act have been implemented and repealed, and still others have yet to be implemented at all. Are not the Government guilty of legislation by headline?
Mr. Marshall-Andrews: There is much in what the hon. and learned Gentleman says. The Government’s approach has caused serious problems in the courts, given the uncertainty about which parts of the body of legislation are in force, when they came into force and how much is retrospective. However, I do not want to stray too far from the locus in quo, so I shall return to dealing with the indictment with which I began what is going to be a relatively short speech.
The Solicitor-General was quite right to correct me over a slip of the tongue that I made about the statistical basis of jury trials. Juries do not convict in 85 per cent. of cases but, under the jury system, 85 per cent. of serious fraud cases do result in conviction. That conviction rate is higher than for any other criminal activity. I can give chapter and verse for that statement, but we should not get involved in a barren argument about statistics. The plain fact is that juries understand serious fraud very well.
I should declare an interest, in that I have done many serious fraud cases in my time at the Bar. No one in my position has ever had the slightest doubt that juries understand such cases. The financial dealings are
sometimes complex, but there is almost never any doubt about whether a fraud has been committed, only about who did it. Juries are far and away better than anyone else at deciding that relatively simple matter at the end of a trial.
Do we have a problem recruiting juries? No, we do not. The panel of jurors is rather larger at the beginning, and the people who are selected are the ones who are comfortable with sitting for between, say, 12 to 26 weeks to deal with a case. Are they unrepresentative? No, they are not. It is true that we lose a number of people whose jobs preclude them from working on a jury over such a period if time. As a result, some classes of people—disabled people, women, those who have taken early retirement or are temporarily unemployed, for example—are slightly over-represented, but are this, of all Governments, going to suggest that such jurors are incapable of trying serious fraud cases or that their involvement is undesirable? The proportion of cases in which juries convict demonstrates that they are perfectly capable of coming to a decision.
In passing, I want to mention the Jubilee line case, which was cursed from the start by poor case management. Matters that should have been dealt with before a jury was ever empanelled were dealt with only afterwards. As a result, the trial became completely unmanageable and in the end collapsed. Reference has been made to the subsequent inquiry, and the resulting document is a luminous illustration of the seriousness and brilliance with which juries attach themselves to their work.
The jury in the Jubilee line case had nothing to do with the trial’s collapse. Indeed, it could well be said that it was an early example of trial by judge alone. The jury had hardly anything to do with it: the case was tried by the judge alone, and the result was a complete disaster. Our adversarial system is wholly incapable of dealing with trial by judge alone. To suggest, as the previous Home Secretary once did, that removing the jury creates an inquisitorial system is the precise equivalent of removing the wheels from a car and claiming that one has invented a boat. The system is incapable of dealing with a judge being the arbiter of fact.
I hope that the Solicitor-General will accept the line that I am about to toss to him and intervene to assist me. I want to ask a question about public interest immunity that I could not put to him while he was making his speech, as I did not want to delay progress in the debate. In the vast majority of serious cases there are important issues of public interest immunity, which our system deals with by means of the prosecution talking to the judge and deciding what evidence should be given to the defence, and what should not. The judge can make that decision because—and this has been confirmed by Europe—he is not the judge of fact. However, a judge who determines PII applications and is then a judge of fact will be in possession of material that he will share with the prosecution, but of which the defence will have no knowledge at all. In those circumstances a conviction would last for about 10 minutes in a European Court before it was overturned—
Mr. Marshall-Andrews: I pause so that the Solicitor-General can answer that interesting question, which perplexes the whole legal system.
The Solicitor-General: I am grateful to my hon. and learned Friend. I have three points to make to him. First, the Serious Fraud Office does not regard the use of PII certificates as a regular occurrence in such cases, but my hon. and learned Friend is right—it might happen on occasion, so it might be an issue sometimes. Secondly, in Northern Ireland, judges sit alone in the Diplock courts and regularly have to deal with PII and other issues. A second judge is involved; they deal with the issues adequately and there is no problem. Thirdly, my hon. and learned Friend is well aware that in most European countries juries do not deal with such cases. Single judges deal with them and they do not seem to have problems with the European Court of Human Rights, so I think that his point is a bad one.
Mr. Marshall-Andrews: I was hoping to have an answer, but unhappily I did not; or rather, it was an attempt at an answer but, as the Solicitor-General knows, it was entirely deficient. I shall take it piece by piece. PII happens in almost every serious fraud case that is tried—certainly in my experience—so that is the end of that argument.
The second argument is that a single judge can hear PII applications, but the European Court has already said that the only reason why it endorses PII applications made to a single judge is because he is not the judge of fact. The minute he is a judge of fact, such applications will, ipso facto, offend before the European Court. For a secondary judge to sit alongside another judge dealing with PII applications would be reinventing the wheel, with one judge sitting as jury and the other as a judge. Furthermore, it is necessary that PII cases are kept permanently under review by the judge trying the case.
Finally, I do not want to give the Solicitor-General a long lecture on the inquisitorial system, the Napoleonic and other codes and how they differ from an adversarial system, because we would be here for a considerable time. However, the checks and safeguards in an inquisitorial system are wholly absent from our adversarial system, which relies on a jury to provide them.
The Solicitor-General: I am grateful to my hon. and learned Friend for giving way again. I pointed out that such issues have to be addressed in the Diplock courts in Northern Ireland, where they are dealt with adequately. A great train of cases has not been taken to Strasbourg for resolution; they have been dealt with adequately. My hon. and learned Friend argues that the issues need to be resolved sensibly, but my view is that they can be, and have been, resolved.
Mr. Marshall-Andrews: But with great respect, not in the example of the Diplock courts—an aberrant system of justice, which came about because of a terrorist threat that does not exist. If attacks on jury trial are to be regularly defended on the basis of courts in Ireland set up by Lord Diplock in answer to a terrorist threat, the Government are making a threadbare argument.
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