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The Solicitor-General: I do not know whether judge-led trials will lead to an increase in the number of types of trials that lead to convictionswe shall have to wait and see how that evolvesbut I think that we may well see more people convicted, albeit not for that reason. There is no contradiction there. The reason is that the full culpability of a case can be looked into, and some people who might have dropped off as defendants because of the complexity of the case will no longer need to be dropped off. They can be put before the judge. We may see further convictions as a result of that. It is also the case that a broader range of evidence can be put before the judgeprobably more charges and more on the indictmentso we are looking at dealing with the full culpability of a case in a single trial, rather than severing it, dropping people off the end and having merely sample counts.
Simon Hughes: I can understand that argument, but I do not think that the prerequisite is to move from jury to judge-only trial. I think that the prerequisite for achieving what the Solicitor-General wants is to change procedures along the lines of the changes already made. My strongest argument against the Government on the procedure is to say that we have had three years of reviewing procedures and a year and a half since the new criminal procedures were introduced and the protocol was announced by the Lord Chief Justice. We have just enacted the Fraud Act 2006, though it is not yet fully in place. As the hon. Member for Beaconsfield said, we enacted the Domestic Violence, Crime and Victims Act 2004to give it its full namein which there is a different process. There is a procedure for dealing with certain parts of someones alleged criminality, such as severing or taking sample counts, at one stage and getting the rest dealt with later.
It must be logical to let those changes work through the system. It must be logical to let the Fraud Act 2006 come into place. It must be logical for the Government to announce the results of the intergovernmental review, which might produce a proposal for a financial court. It would then be possible for what the Solicitor-General reasonably argues should happen to happenfor other defendants or other charges to be added to what can be presented to the court. It has never been the case that in non-fraud criminal trials, every single count has gone on the indictment. The reality, as assessed, is that many charges have been put to one side and there has been a conviction on the substantive charges. Pleas or other considerations can then either be taken into consideration or not. It is the same with serious predatory sexual offenders. They are not fully charged, in order to avoid the horror of bringing everybody to court to give evidence. One selectively charges, and convicts. That is enough to give a jury the evidence and to give the person a serious sentence at the end of it. I understand the objective, but the changes already initiated, the changes announced but not yet implemented and the changes yet to be considered will all provide that opportunity.
Did the hon. Gentleman draw from the Solicitor-Generals recent intervention the suggestion that cases are not being prosecuted because they would have to be pushed in front of a jury and therefore are unlikely to reach a satisfactory verdict as far as the prosecution is concerned? Surely if there were any
mileage in that, and if there were any substance in the Governments arguments, they would have come forward with evidence to show that the Serious Fraud Office or the Crown Prosecution Service had not prosecuted in some cases because they did not think that they could get them across to a jury. We have not heard any such evidence.
Simon Hughes: Indeed not. The system is clear. We have annual reports from the Serious Fraud Office. It reports on not just what it does, but how successfully it does it. It can ask for extra resources. It is a relatively new organisation. I have heard nothing to suggest that it regards the failure to achieve a higher success rate than the 56 per cent. we heard about, or the 80 per cent. on the basis of the other count, or other things, as due to the jury system. That is not the case.
Mr. Grieve: The hon. Gentleman may also wish to ponder the point that the Law Officers and prosecution authorities, in considering the test of whether to bring a prosecution, make a decision on the basis of whether a jury, properly directed, will convict. We have not heard from the Solicitor-Generalwe might hear at the endwhether that test will be altered for trial by judge alone. On the face of it, it is embedded in our constitutionand I do not see how that test squares with the system that the Government are trying to set up.
Simon Hughes: I was going to make just that point to the hon. and learned Member for Harborough (Mr. Garnier). Under our system, the police investigate and collect the evidence, which is then looked at by the Crown Prosecution Service. It has to comply with two tests in every case. The first is whether there is a better than 50 per cent. chance of conviction before whichever tribunal it isit would normally be a tribunal with a jury, by definition. The second is whether it is in the public interest. Those tests are not varied or altered. They are the tests that are applied.
The Solicitor-General: I am sure that the hon. Gentleman will be aware that the vast majority of trials in which the prosecution have gone through the procedure to make a judgment to prosecute are not conducted before a jury at all, but in the magistrates court. The direction is therefore quite proper, and will be able to stand.
Simon Hughes: I was trying to deal with the substantive point, rather than the supplementary point made by the hon. Member for Beaconsfield. Of course more than 90 per cent. of all criminal trials take place, as we know, in magistrates courts. However, the principle of the justice system is that serious charges go before a jury of ones peers.
I share the view expressed around the House that in the intervening period we have had a tokenistic consultation, which was only a consultation afterwardsin terms of how it was defined. It certainly did not honour what I understood was the undertaking made by the then Home Secretary to me across the Floor of the House in November 2003. There have been constructive discussions and constructive ideas have been put to Law Officers by
the Conservative party and by me on behalf the Liberal Democrats, but they have not been responded to. We are where we are because there is a fundamental divide when it comes to the question, Are you in favour of jury trial for all these cases or not? That is not going to be changed.
Why should those of us on this side of the argument stand our ground? First, because there should be one form of trial for serious offences and one form of justice dispensed, for reasons that many people have given. A judgment by a single judge, with written reasons, for certain cases and a judgment by a jury, on the basis of guilty or not guilty, are different forms of justice. There is no logic to say that one person who has committed an offence should have a different form of justice from somebody else.
The reality is that, however great the integrity of the judge, there will be suspicion. The more cases there are in which somebody is the judge of both the fact and the lawgoing in and out of all the questions about looking at documents and rejecting them, and rejecting evidencethe more cause for suspicion. There will be cause for suspicion where at the moment there is none. People know that all the evidence that is to be used to decide guilt or innocence will be seen or heard by the jury, and by everybody else in the court.
Secondly, I have argued for many years, as have many people on the Liberal Democrat Benches, for votes of equal value in all parts of the country. This issue is about verdicts of equal value in all parts of the country. The principle is important. A verdict by a jury is much more conclusive, much more commanding of public confidence, and much more likely to stand and not be the subject of a considered appeal, than verdicts by judges alone.
Thirdlythis point has been well made elsewhereit is highly unacceptable that the professionals will be tried by the professionals, and the white-collar offender by the white-collar professional judge. That is not an acceptable way of dividing the way in which society administers its justice. It is the professionalisation of the justice system. That is against all our tradition, which has been very successful.
Fourthly, to be blunt, there is much more confidence in juries than in judges. That is not because judges do not do an excellent job, but because the public trust their own. The most logical reason is this: in a jury, at least 10 people have to come to a view that the person is guilty. That is a much more satisfactory outcome than one person coming to a view that somebody is guilty. That is better not just for defendants and the public, but for judges. The answer to the point made by the hon. and learned Member for Medway (Mr. Marshall-Andrews) that was being disputedabout saving judges from being the subject of any sort of corruptibility riskis that jurors in long trials will do only one jury trial. They will be exempt for the rest of their lives and will not come back again. There is no point in their being a target, because they are not likely to be put in that position again. The same does not apply to judges. The situation is entirely different from that which applies in a civil case, where the same sort of people will not be enmeshed in the same sort of risk of losing their liberty for a long time.
Above all, there is no evidence that the system is quicker or that the verdicts are more accurate. If the Solicitor-General had been able to show that since the Government first wanted to go down this road in 2000 or 2001, all the evidence had come in their directionif he had been able to say, Look at the percentage of cases that have failed. Look at the percentage of cases that the Serious Fraud Office has said it hasnt been able to deal with,there would have been a case. If there had been reports commissioned by the Government that said that the Jubilee line case collapsed because the jury did not understand it or did not get the whole picture, or if the jurors had said, Terribly sorry guys, but it was all beyond us, or, We didnt think we were getting the whole picture, there would be new evidence. However, there is no new evidence. Indeed, the evidence has been going in the opposite direction.
Although the Liberal Democrats believe that this may not be a general attack on juriesI accept what the Solicitor-General says about thatit is a specific attack. It is what my hon. Friend the Member for Somerton and Frome (Mr. Heath) calls, one specimen count. If we let the specimen count stick, the danger is that the Government will find arguments for saying that long cases and cases of a certain complexity should be passed over to the new system. There is a logical progressionand that is a dangerous road to go down. Of course, we cannot say that that is what will happen, but it is impossible to resist the argument that it could happen, once the link is broken. It is the law of attrition. The movement becomes difficult to resist. That is why we have to stand our ground where we are.
There is a strong constitutional tradition in this country that we depend on a robust Parliament with independence from the Executiveand robust judges, lay magistrates and juries that are independent of the Executive, too. On these Benches and elsewhere, we will defend the jury system. We believe that it works well, and with the new procedural changes it will work even better. The new improvements should be seen, tested, reviewed and allowed to take their time. In a few years time Ministers will not have a case to argue, because necessary changes will have been made. It is not a necessary change to replace jurorsrepresentatives of the great British publicwith professional judges, and thus to change the whole nature of the way in which some people are tried, and tried entirely satisfactorily.
First, I want to deal with the serial bad points made by Opposition Members. The point made by the hon. Member for North Southwark and Bermondsey (Simon Hughes) about the Lord Chief Justices protocol does not workthe House and the other place will want to take note of thisbecause, although there is a point of principle about protecting the jury system, all the points that we are hearing are the same
ones that were made before the protocol was ever even dreamed of as a safeguard. The protocol cannot be prayed in aid of the arguments that hon. Members have been making over the years. The House rejected those arguments; if it had not done so, we would not have section 43 of the Criminal Justice Act 2003. The hon. Gentleman makes a hollow point because the two things are not connected.
We have also heard the hollow threat of repeala cheap political point about a stage in the future that will not come about because Labour Members will not have to relinquish responsibility for these matters. We will thus not have a short-term measure. That cheap party political point was on a par with many of the cheap points that have been made today.
There is no new point of principle here. The House has withdrawn peoples right to a trial by jury when charged with certain offences over the years. When I was a young law student, I read that there was a right to a trial by jury when drink-driving was first introduced. For reasons of administrative justice, that right was taken away by the Conservative Government of the 1970s. There is thus no new point of principle about withdrawing the right to a trial by jury for certain offences.
My hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) made a thoroughly bad point about the corruptibility of judges, which the Solicitor-General and I showed to be ridiculous. I think that my hon. and learned Friend the Solicitor-General said that it was facetiousand it was. The point was not worthy of debate.
We should add all the points that have been made together. I was taught as a very junior member of the Bar that if one has a series of bad points, putting them all in front of a tribunal will not make any of them any better, but just weary the tribunal. I argue that there is no new point of principle.
Mr. Burrowes: As a new Member, I will focus on the present. If we put to one side the fundamental points of principle, can we deal with the matter of practice? Since the criminal procedure rules were put in place, where is the evidence, from a relatively small number of cases, that there is a real need to change what many of us consider to be a fundamental principle?
Stephen Hesford: The hon. Gentleman makes the same intervention as he made on the Solicitor-General, so in that sense he is consistent. The argument for reducing the right to trial by jury in these few serious fraud cases, which was made in and accepted by the House, remains as it was in 2003. There has been no change. The argument was made then and the House made a decision. The only thing that we are deciding today is whether the House and the other place will allow us to bring the measure into force.
My hon. Friend mentioned a point that I made. I am sorry to say that I do not know the discipline in which he practised the law. If he had
practised in crime, he would know that when one deals with criminals, one deals mainly with menand some womenwho are sometimes of great violence and great desperation. Such men will do almost anything to obtain an acquittal and are sometimes capable of deploying large sums of money. When we discussed the provisions of the 2003 Act that allowed for judge-only trials in cases in which juries were nobbled, we were told that that activity was frequent and dangerous. If there is a judge-only system, attempts will undoubtedly be made to bribe, bully and cajole judges. Such attempts are not part of our system. I am not saying for one moment that the vast majority of judges will be open to that, but they will be exposed to it. One of the huge benefits of our system is that they are not exposed to such activity. If a judge sitting on his own acquits someone and it looks to the press as though there is a substantial body of evidence, suspicion is bound to grow. At the moment, that is wholly unknown in our system, but there are judges in our system who might be corruptible. If my hon. Friend does not understand that point, he flies in the face of judicial
Mr. Garnier: I was suggesting to the hon. Member for Wirral, West (Stephen Hesford) that if he thinks that the point made by the hon. and learned Member for Medway (Mr. Marshall-Andrews) is of little value, rather than insulting the hon. and learned Gentleman, perhaps he would condescend to argue against it, rather than grandly saying, Ill leave it where it lies.
A further bad point was made about a single judge dealing with the criminal burden of evidence and proof. It was suggested that somehow the instruction to deal with evidence that a jury gets could not be applied to a single judge. As the Solicitor-General said, it is applied in the Diplock courts. It is applied in civil jurisdictions, where judges apply not the civil standard of proof in serious civil cases involving allegations of fraud and the like, but the criminal burden and standard of proof. My hon. and learned Friend the Solicitor-General also made it clear that the paid magistracydeputy judges in the magistrates courtapply those principles all the time and deal with 98 per cent. of criminal cases. The idea that a High Court judge could not deal with fraud cases appropriately is ridiculous. It is just another example of the serial bad points that are being made.
Mr. Marshall-Andrews: I have been wanting to raise a matter about Diplock courts for some time. When they were debated, it was said repeatedly that the practice of Diplock courts would never be used as a Trojan horse to extend the concept of trial by judge alone. Why are they now being brought up in such a way?
The Solicitor-General: As I mentioned Diplock courts, perhaps it is best that I deal with the point. My hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) suggested that we would have a European Court of Human Rights challenge and be in difficulties with this procedure if public interest immunity certificates were an issue in a case. I pointed out that that issue had been dealt with in Diplock courts. I was not suggesting that Diplock courts were a Trojan horse for this measurefar from it. We are looking at the possibility of moving from such courts. My hon. and learned Friend made a point on the law; I dealt with the point on the law and I did so effectively. He did not, in his response, do anything more than make a general attack on Diplock courts. He needs to deal with the legal point, which is a different one.
The second part of my speech is about the effect of what we are doing today and the reason why we are doingit. In an intervention on the hon. Member for Beaconsfield (Mr. Grieve) I suggested that one reason has to do with case management. The hon. Member for North Southwark and Bermondsey in effect adopted that point in what I consider to be an erroneous argument. However, he emphasised for me the point that the provision is part of a package for the proper prosecution of fraud cases. Nobody in the House is not fully behind the idea that what we seek, in the House and in the courts, is the fair and proper prosecution of serious fraud cases.
Simon Hughes: I have resisted intervening until now. Does not the hon. Gentleman accept that we cannot judge the effect of the changes that have already taken place in management, the changes that are not yet in place but have been agreed, and the changes that have been considered but not yet announced, until some years have passed and we have seen the results? It is ridiculous to suggest that we need something else when we have not had a good run at looking at the benefits of the changes already in the pipeline.
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