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29 Nov 2006 : Column 1118

Mr. Hogg: Does the hon. and learned Gentleman agree that the problems he has been exploring relate to previous convictions and hearsay evidence, too? Since the 2003 Act, they have been used with much greater frequency. The judge has to rule as to the admissibility of previous convictions. At present, if he rules in favour of the defendant the information never goes before the jury, but in the circumstances contemplated by the Bill, he would have to put previous convictions out of his mind, which would not be very reassuring for the defendant.

Mr. Marshall-Andrews: I agree entirely. I have one more point to make about our judiciary.

One of the reasons why our judiciary is rightly regarded throughout the world as an exemplar and completely incorruptible is the existence of the jury system. There is no point whatever in anyone attempting to bribe or bully a criminal judge because between the judge and the individual stands the jury system, which has stood us in good stead for 800 years. I regularly visit Mother Russia to lecture on judicial independence, something which the Russians regard as we do the yeti or the abominable snowman: people have seen it—they believe that it exists—but nobody believes that it can be brought into being. I spend much time explaining that implicit in the concept of the independence and incorruptibility of judges is the jury system; it maintains judges’ fierce independence of Government or anyone else. To start attacking that system is to start attacking not fraud or fraudsters, but 800 years of British liberty.

Stephen Hesford: What about the 150 years of civil justice before a single judge? How does that run parallel, or at all sensibly, with what my hon. and learned Friend has just said?

Mr. Marshall-Andrews: I am sorry, but I do not entirely understand that intervention. Is the argument that we are dealing with the Judicature Acts—that in civil cases judges sit alone? If it is seriously argued in respect of the liberty of the subject that in criminal cases involving imprisonment and the removal of liberty we can move to a civil judicial system— [Interruption.]

Mr. Deputy Speaker: Order.

Mr. Marshall-Andrews: Thank you, Mr. Deputy Speaker.

If the argument suggested by my hon. Friend the Member for Wirral, West (Stephen Hesford) is really being advanced as the exemplar for a criminal justice system, I have to say that it is threadbare.

The Solicitor-General: My hon. and learned Friend is being generous in giving way to me again. He seems to be arguing that judges would be corrupted by the proposed process, but my hon. Friend the Member for Wirral, West (Stephen Hesford) rightly pointed out that judges in our civil courts are dealing on a day-to-day basis with cases that involve vast amounts of money over which two parties are arguing. Our judges have not been corrupted by having to make decisions in such cases. The idea that as a result of the
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Bill our judges would suddenly become corruptible is facetious. My hon. and learned Friend cannot seriously be putting forward that argument. As he rightly says, our judges are known to be incorruptible; the Bill or any further legislation notwithstanding, our judges will continue to have that reputation.

Mr. Marshall-Andrews: With great respect, I have to point out that the Solicitor-General does not listen to what I say, if he suggests that I am saying that as the result of the Bill, we would have corrupt judges. I said that one of the reasons why criminal judges rightly, and uniquely, maintain a reputation for being incorruptible is the existence of the jury system. It has always been implicit in our law and legal learning that one of the advantages of a jury system is that it acts as a buffer between the citizen and the judge. That is one of the reasons why it has been possible to maintain over centuries—not weeks or months but centuries—a reputation for a rigorously and ruthlessly incorruptible judiciary. I hope that the Solicitor-General now understands the point I was making. It is not a new point; it has been made for centuries and is one of the reasons for the existence of jury trial.

May I now deal with the erosion argument? The Solicitor-General has given me little confidence that the measure is not part of a general erosion. One of the reasons for that—to pick up a point made by the hon. Member for Beaconsfield (Mr. Grieve)—is the repetition of the idea that nothing implicit in fraud or juries makes the Bill necessary. What makes it necessary, we have been told time and again, is the length of time that a trial will take. And as the hon. Gentleman points out, it is not simply fraud cases that take longer than the two weeks of jury trial. I suppose, but I do not have statistical evidence for it, that the average length of a murder case in the Old Bailey is six weeks. That is not because it is complex; it is because often there are several defendants to try. That is one reason why fraud cases take a considerable time—not because they are complex, but because often there are quite a few defendants to try. And if it takes 12 weeks to try six defendants, it is two weeks per defendant. That is why such cases last as long as they do.

If there is going to be an ex cathedra statement that juries as a matter of fact should not be put to the inconvenience of sitting for more than six weeks on any trial, we are into the borderland and the hinterland of very many other cases in addition to fraud cases. If that is what is motivating the Government—and it is what the Solicitor-General says is motivating the Government—we are not simply on a slippery slope, we are on a glacial path towards the Government bringing forward legislation in respect of terrorism, in respect of long murder trials, and in respect of all trials anticipated to last for more than six weeks, all to be tried for three weeks by judge alone, with all the difficulties and problems that are implicit in that.

Ms Diane Abbott (Hackney, North and Stoke Newington) (Lab): Does my hon. and learned Friend accept that there are those of us who lack the legal expertise of some people in the Chamber, but who have a concern about the Bill precisely because of the precedent that it may set? It is being argued that there is
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something unique about fraud, but as he has pointed out, the only unique thing that Ministers can point to is the length of the trial. I am worried that if the House concedes the Bill, we shall see Ministers coming back with further legislation, and large numbers of people who might never expect to be up on a charge of fraud may find themselves caught in the trammels of a system without the surety of a jury trial.

Mr. Marshall-Andrews: I am grateful to my hon. Friend. She puts the point very well. It is a fear that many have, and that fear is entirely justified on the basis of what we have heard as being the reason—or the apologia—for this piece of legislation.

Mr. Garnier: Of course, the Solicitor-General said it in terms. He said, “We have no intention at this stage”. It is not just, “We have no intention”; it is “no intention at this stage”, so we need to be very careful about the Government’s promises.

Mr. Marshall-Andrews: The hon. and learned Gentleman has picked up the minutiae that I missed, and I dare say it will be in Hansard and I dare say that the Solicitor-General will correct it—

The Solicitor-General: rose—

Mr. Marshall-Andrews: My hon. and learned Friend is going to correct it now.

The Solicitor-General: We have no plans. Will the hon. and learned Member for Harborough (Mr. Garnier) be happy with that?

Mr. Marshall-Andrews: Well, there we are.

Mr. Winnick: Bearing in mind my earlier intervention on the Solicitor-General, does my hon. and learned Friend accept that while some of us who are critical will vote for Second Reading—although others, such as himself, will not—we will do so on the clear understanding that we will not in future vote for any measure that would further undermine the jury system? I am sure that the Government have no illusions on that score.

Mr. Marshall-Andrews: I am grateful to my hon. Friend. I know that he has many concerns about civil liberties, and that the Bill is probably stretching his line almost to breaking point. For many of us it has passed breaking point, and that is not simply because it involves the hallowed principle of jury trial, but because, given the Government’s record and the way that they are presenting the Bill, there is absolutely no reason to suppose that there is a sticking point on serious fraud.

We have put in place, since 27 March 2005, a protocol that will undoubtedly shorten serious fraud cases very considerably indeed. It is a matter of great regret that the Government have not seen fit to wait and see what effect that protocol has before introducing this legislation. And I am sorry to say that the fact that they have not waited is yet another reason
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to believe that something doctrinaire lies behind this, rather than the particularities of the difficulties that are thrown up at present by jury trial.

I end on this note. We have a system that enjoys not only the confidence of this country, but the confidence and approbation of the entire world. We have, without a shadow of a doubt, the most revered criminal justice system in the world. It is held in far higher esteem, I am sorry to say, than the place in which we sit at the moment, and one of the reasons for that is that we are in the habit, unhappily, in the recent past of passing legislation of this sort.

2.35 pm

Simon Hughes (North Southwark and Bermondsey) (LD): Like the hon. and learned Member for Medway (Mr. Marshall-Andrews) and the hon. Member for Beaconsfield (Mr. Grieve), some of us have well and truly been here before. The arguments of both were as robust as those that they made previously, and the same will be true of mine.

This is the fifth round of this fight. The first and second rounds were fought on the Criminal Justice (Mode of Trial) Bill and the Criminal Justice (Mode of Trial) (No. 2) Bill in the previous Labour Administration; the third was fought in relation to the Criminal Justice Act 2003; and the fourth was a year ago, when the Government attempted to get into law an order under the Criminal Justice Act 2003.

I note that the issue frequently comes around in November. I also note, with satisfaction, that the Government in the end do not get their way, and I anticipate that it will be the same in relation to this Bill. Even if we do not manage to defeat it today, or on Third Reading in this place after it has come back from Committee, I do not imagine that it will have any better chance of getting through the House of Lords than similar proposals have over the past six years. Not only are the arguments weak, and not only is this—as we have all agreed so far, apart from the Solicitor-General—an attempt to undermine one of the fundamental and successful pillars of the British justice system, but the arguments in favour of this proposal have weakened further since the Government started down this road in 1979.

Mr. Hogg: Does the hon. Gentleman agree that it is very important that those in the other place should stand firm, even if threatened with the Parliament Acts? Will he encourage those of his party in the other place to stand firm notwithstanding such a threat?

Simon Hughes: I agree exactly with the first proposition, and I have already started to encourage my friends in the other place. The right hon. and learned Gentleman might be encouraged to hear, in reply to the sort of question that the hon. Member for Beaconsfield was asked some while ago, that we have—

Mr. Hogg: That you have the opportunity?

Simon Hughes: No—that we have started looking at the pieces of legislation that we would wish to be repealed, and if this legislation were enacted we would
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vote for its repeal in the next Parliament, when we would hope that there would be a majority for its repeal. The Government need to know that they will take the time of Parliament to pass something that will not get through this year, would get through next year only by use of the Parliament Acts, and is then likely to have an extremely short duration, even if the Government are still in office by the time the Parliament Acts could be implemented. I am very clear about that. It is not pique; it is not theology. It is evidence, it is principle, and it is argument on the merits of the case.

The one merit of the Bill, compared with the other three, is that at least it is what it says on the tin. It says that it is the Fraud (Trials without a Jury) Bill. The Government are not hiding their light under a bushel; they are saying what they want, and it is on that basis that my Liberal Democrat colleagues and I, together with many other Opposition Members—and, I hope, a considerable number of Labour Members—will oppose it both today and later.

I shall try not to make points identical to those that others have made, although there is a huge amount of common ground. I want to make the preliminary point that this is part of an approach towards government that I fundamentally object to. The idea built up over the years and centuries that lay members of the public participate as serious players in the criminal justice system—an idea that is hugely important in the law of England, Wales and Northern Ireland—is being undermined. There are three elements in that.

The first is that this is a repeated serious attempt to take lay people, not professionals, out of the process of deciding guilt and innocence in serious cases. The second, rightly mentioned by the hon. Member for Beaconsfield, is the movement—almost without announcement—to replace lay justices by paid professionals. More people are spotting this, and viewing it with increasing anger and frustration. The benefit of lay justice is that people who do other things and are properly representative of the community spend some of their time judging people in their community for lesser offences in the community. Increasingly we are seeing district judges—the old stipendiary magistrates—paid to do that job. It is a significant transition, about which many people are uncomfortable.

The third element is the movement towards removing lay people from the criminal justice system altogether by offering more and more opportunities for people to buy their way out of justice through the fixed penalty notice system, whereby people never appear before a court at all. That may be entirely acceptable for someone who parks on a yellow line, which is an administrative matter that can be visibly dealt with, and for which guilt or innocence is difficult to dispute. It is wholly different from deciding whether someone has been assaulted in a scuffle on a Friday night outside the local pub. That is the background.

May I make the obvious observation that I hope that everyone would expect us all to make? Nobody in the House underestimates the importance and seriousness of fraud and no one wants serious fraudsters to go free. We all acknowledge the importance of the work of the Serious Fraud Office, the Crown Prosecution Service and the police service in bringing people who commit serious fraud to justice. It is every bit as important, if
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not more so, than dealing with those who commit smaller frauds. Serious damage can be done to individuals and their lives by those fraudsters, and we want to bring them to book.

One interesting aspect of today’s debate is that we have had an opportunity to look at what has happened since the Criminal Justice Act 2003 was introduced and assess whether this remains as valid a proposition for the Government to advance. I have a simple set of tests as to whether we need to return to this territory, and I am led to the clear conclusion that we do not. I have not heard the Solicitor-General or any other Labour Member argue that under the present system, we have suddenly seen a great increase in acquittals and a great reduction in convictions.

Stephen Hesford: If the House had been able to implement this measure when the 2003 Act was passed, does the hon. Gentleman think that the Lord Chief Justice’s protocol would have been more or less necessary, if everything had been done and dusted before now?

Simon Hughes: I think that it would have been equally necessary. The burden of all the evidence is that what we need to change is the process and the procedure—the organisation, management and investigation of cases of serious fraud, not the way in which they are tried. All the evidence leads me to that conclusion, and I hope that it would lead the hon. Gentleman to the same conclusion. He will know that there have been several reassessments of the evidence.

In sequence, the first was the protocol, issued in March 2005 and referred to a few moments ago by the hon. Member for Wirral, West (Stephen Hesford). Secondly, a Bar Council report at the beginning of this year looked into the problem again, and was robust in its clear view that other matters were more important than changing from jury trial to judge-only trial. Thirdly, the Solicitor-General made a statement to the House—originally given by the Attorney-General in the other place—in July this year, after the Jubilee line case acquittal, announcing various proposals that amounted to the lessons learned from it. We have thus had three initiatives—two formal initiatives connected with improving the procedure, and new criminal procedure rules.

We also await a final announcement of the Government’s recommendations arising out of the cross-governmental review. One proposal is to have a financial court, which could consolidate good practice and employ practitioners suitable to the task. The Government have already conceded that High Court judges are the most appropriate for these cases, and there are strong arguments for using judges with sufficiently high qualifications to deal with them.

All the movement has been in the direction of improving procedures and no one has argued—although implicit suggestions may have been made to that effect—that changing the basis of trial from jury to judge would increase the rate of convictions. If that argument is going to be used, it risks becoming an argument that juries are not suitable to judge guilt or innocence generally. As was said about health and safety cases, and as applies in many other cases, there is no evidence that the issues of honesty or dishonesty are more difficult for juries to understand in fraud cases than in modern cases involving computer and other IT evidence.

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