Previous Section Index Home Page

29 Nov 2006 : Column 1124

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 convictions—we shall have to wait and see how that evolves—but 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 judge—probably more charges and more on the indictment—so 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 2004—to give it its full name—in which there is a different process. There is a procedure for dealing with certain parts of someone’s 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 happen—for 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.

Mr. Garnier: Did the hon. Gentleman draw from the Solicitor-General’s 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
29 Nov 2006 : Column 1125
mileage in that, and if there were any substance in the Government’s 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-General—we might hear at the end—whether that test will be altered for trial by judge alone. On the face of it, it is embedded in our constitution—and 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 is—it 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 one’s 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 afterwards—in 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
29 Nov 2006 : Column 1126
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 law—going in and out of all the questions about looking at documents and rejecting them, and rejecting evidence—the 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.

Thirdly—this point has been well made elsewhere—it 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 disputed—about saving judges from being the subject of any sort of corruptibility risk—is 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.

29 Nov 2006 : Column 1127

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 direction—if 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 hasn’t 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 didn’t 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 juries—I accept what the Solicitor-General says about that—it 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 progression—and 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 Executive—and 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 jurors—representatives of the great British public—with professional judges, and thus to change the whole nature of the way in which some people are tried, and tried entirely satisfactorily.

3 pm

Stephen Hesford (Wirral, West) (Lab): May I make my speech in two parts?

Mr. Deputy Speaker: Order. But all at once would be helpful.

Stephen Hesford: I will try to juggle my parallel arguments at the same time, Mr. Deputy Speaker.

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 Justice’s protocol does not work—the House and the other place will want to take note of this—because, although there is a point of principle about protecting the jury system, all the points that we are hearing are the same
29 Nov 2006 : Column 1128
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 repeal—a 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 people’s 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 facetious—and it was. The point was not worthy of debate.

Michael Fabricant (Lichfield) (Con): The hon. Gentleman should say “specious” or “spurious”.

Stephen Hesford: Fatuous.

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.

Mr. Marshall-Andrews: 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
29 Nov 2006 : Column 1129
practised in crime, he would know that when one deals with criminals, one deals mainly with men—and some women—who 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—

Madam Deputy Speaker (Sylvia Heal): Order. The hon. and learned Gentleman has made quite a lengthy intervention.

Stephen Hesford: If you do not mind, Madam Deputy Speaker, I will leave that intervention to lie where it was, because it has made a bad point even worse.

Mr. Garnier: That is a mere insult. The hon. Gentleman should meet the point of the argument.

Madam Deputy Speaker: Order. If the hon. and learned Member for Harborough (Mr. Garnier) wishes to intervene, he knows how to do so.

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, “I’ll leave it where it lies.”

Stephen Hesford: I am sorry, but I have already dealt with the point.

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 magistracy—deputy judges in the magistrates court—apply 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.

29 Nov 2006 : Column 1130

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?

Stephen Hesford: I am simply pointing out that judges can apply the relevant burden of proof in single-judge cases.

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 measure—far 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.

Stephen Hesford: I agree with the Minister, who has dealt with the point.

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.

Next Section Index Home Page