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Stephen Hesford:
The hon. Gentleman misapplies himself to the Government’s developing agenda. If the measure comes to pass, as I sincerely hope it will, in a fraud case where the prosecution have made an application to have the matter dealt with by a single judge, the judge will have in front of him or her all the points mentioned by the hon. Gentleman—the protocol and so on—so that he or she can decide whether the case should go to a non-jury trial. If, on all the evidence, there is no reason for a case to go to a non-jury trial, it will not. As I understand the Government’s case—the Minister will
tell me if I am wrong—this provision is an option, not an automatic procedure. I am obliged that my hon. and learned Friend comforts me with a little nod. As with any procedure, that judgment will be subject to appeal in the Court of Appeal, which can determine whether the judge has exercised his or her jurisdiction correctly, so there is oversight. This is a way of better enabling the prosecution to manage serious cases.
I will not repeat all the points made by the Minister, but what I find attractive is the fact that if the Bill is passed it will act as a deterrent against white-collar crime. We seek to minimise such crime and improve access to justice in such cases in our courts. My hon. and learned Friend was, for understandable reasons, slightly more circumspect than I must be, but I believe that the Bill will result in more guilty pleas. I believe that it will effect a better balance of justice than the current system. The Minister argued that more cases will be brought because those on the periphery of cases will be brought back into the picture.
One thing that has marked the approach to crime of the Opposition and the Liberal Democrats since 1997, when I came into the House, is their lack of support, time and again, when we try to legislate to make the criminal justice system more effective on behalf of the people whom we represent. I pointed out to the hon. Member for Beaconsfield that we had crossed swords on a number of such Bills over the years. I have to say that the Conservatives’ approach—not necessarily that of the hon. Gentleman—has always been one of trench warfare. We are trying to rebalance the system so that it is fair and it does the job on behalf of our constituents.
I clearly remember that the Proceeds of Crime Act 2002, which has toughened up the process and made it more usable in the courts, was fought at every opportunity by Opposition Members. In that case the Government were trying to get at the assets of those engaged in serious crime—which involved huge sums—and cut down on such criminality. In this case, too, we are talking about cases involving huge sums. Whether or not the Opposition intend it, the effect is the same—their so-called defence of principle is in fact a defence of those engaged in serious white-collar crime. [Interruption.] There are groans on the Opposition Benches, but I am afraid that that is the effect. Opposition Members have to decide whether they want to prosecute those involved in serious crime. I believe that these measures will help to do so.
Mr. Marshall-Andrews: Will my hon. Friend at least accept it from me, as someone who has prosecuted many serious fraud cases, that the desire to see white-collar criminals go free is not one that motivates me?
Stephen Hesford: Unless my hon. and learned Friend has gone over to the Opposition Benches, I was not talking about him; I was talking about the Opposition.
In the academic, purist argument advanced by the Opposition, it is suggested that such cases are victimless crimes, and that it does not matter whether case management or the proper prosecution of such crimes is seriously considered. However, missing trader fraud, for example, is a serious attack on VAT revenue. Classically, that is a type of fraud that might be prosecuted under the Bill. The Revenue must send out
a clear message that we will prosecute such crimes, and that we take seriously any attack on the VAT system. Opposition Members give the game away when they say that the Bill is some sort of revenue exercise. Does the hon. and learned Member for Harborough (Mr. Garnier) wish to support the proper collection of VAT and the proper protection of revenue, or not? Apparently not.
The Bill has a fine legal tradition behind it. Lord Roskill came up with similar proposals, and Lord Justice Auld dealt with the same issue and made similar representations. The proposal is not one that the Government thought up by themselves, and prepared on the back of an envelope. It is part of a serious legal tradition.
The Solicitor-General: My hon. Friend is quite right. There is a serious history of such proposals, and eminent judges have made reports on the matter. Since the passing of the Criminal Justice Act 2003, there has been further evidence of the importance of introducing such a measure. I referred to cases that had to be severed. In the Talbot village trust case, completed in 2004, the trial judge had to order the prosecution case to be reduced for management reasons. Again, in the Versailles case of 2004, which involved Cushnie and others, the judge ordered three counts against one of the defendants to be severed in the interests of trial management. Finally, in the Global Wildlife Trust case in 2005, the prosecution had to limit the size of the case.
Mr. Hogg: On a point of order, Madam Deputy Speaker. Is it not correct that interventions of that kind should be incorporated in the winding-up speech that we are shortly to hear?
Madam Deputy Speaker: I have indicated that all interventions should be brief. It is for me, rather than for hon. Members, to decide when interventions are not brief, as I am chairing the debate. I call Mr. Mike O’Brien.
The Solicitor-General: Thank you, Madam Deputy Speaker. My point was merely that the evidence since 2003 has continued to show that the changes are necessary.
Stephen Hesford: Opposition Members have asked Members on the Labour Benches, collectively, to produce the evidence, but when my hon. and learned Friend the Solicitor-General talks about the evidence since 2003, the Opposition do not want to hear it, and instead come up with a spurious point of order. My hon. and learned Friend makes the good point that since the 2003 Act, the same pattern of error in the presentation of fraud cases has continued, as has the same pattern of complaint from senior judges. That was my point. My hon. and learned Friend reinforces those points, which concern those who try to deal with such cases daily.
The hon. Member for Beaconsfield said that the mismanagement of cases never had anything to do with the jury, but that is completely wrong. One of the reasons such cases often cannot get off the ground is that the considerations of how to manage them with a
jury sometimes defeat that object. My hon. and learned Friend the Solicitor-General convincingly made the case that if such large cases were dealt with by one tribunal considering all the charges, at one sitting, the criminality could be dealt with satisfactorily. That is one reason why my hon. and learned Friend introduced section 43 of the 2003 Act, and why he has brought the Bill before the House.
This short Bill deals with the will of Parliament. It is Parliament’s will that section 43 should be on the statute book, and it is Parliament’s will that we should, at least in principle, allow a High Court judge to consider whether a handful of serious fraud cases could be better managed under the system that we are considering. I support the Bill, and I look forward to the proposal being available to the criminal justice system and the Serious Fraud Office.
3.25 pm
Mr. Douglas Hogg (Sleaford and North Hykeham) (Con): The hon. Member for Wirral, West (Stephen Hesford), who has just spoken for 25 minutes, reminds us of the will of Parliament. It is worth reminding him that the will of Parliament embraces the will of both Houses, not just this House. A little bit of modesty might be in place from him, because in the other place there are many Members who have a great deal of experience, both of practising in the courts and of presiding over trials. We need to remember that the other place has robustly refused to pass the measure, and has made it wholly plain that it will not pass it. When we speak of the will of Parliament, let us actually face the fact: we are talking about the will of the Executive, who will rely on a three-line Whip to force through a profoundly illiberal measure. To repeat what I said to the hon. Member for North Southwark and Bermondsey (Simon Hughes), I very much hope that the other place will stand firm on the matter. If it is to be threatened with the Parliament Act, so be it. I hope that it will not pass the measure at any time, so that it will have to be forced through by the Parliament Act.
We have been reminded from time to time that the issue has previously been addressed by reviews, and that is perfectly true. It was addressed by Lord Roskill, and by Lord Justice Auld only a few years ago. Let us remind ourselves, too, that neither review recommended the measure that is before the House. It is perfectly true that Lord Justice Auld said that there could, in serious and complicated fraud cases, be trial by a judge alone, but only when the defendant so elected. In fact, what he said was that in the generality of such cases, the trial should be by a judge alone, with a special panel of lay assessors. Incidentally, that was the view of Lord Roskill, too. Let us be wholly plain: the measure suggested today is quite beyond those advised by any expert commission. The measure was wholly rejected in discussion in the other place, and has very few friends in the Chamber today.
Stephen Hesford: May I ask the right hon. and learned Gentleman a straight question? If the proposal before us was for a judge sitting with a tribunal, would he be in favour of it?
Mr. Hogg: I would give that proposal serious consideration, but in the end, my answer would be no. I am in favour of jury trials, and I shall come to my reasons for that later. I begin by defining the questions that I shall ask of myself and the House. My first question is whether there is anything inherent in jury trials that makes that form of trial inappropriate for complex and lengthy fraud cases. I wish to find out both whether such cases cannot be tried by a jury, and whether juries cannot try such cases. My second question is quite different: are there arguments of principle that should cause us to say that jury trial should be retained? If the answer to that is yes, I shall ask a third question: are there any practical arguments that reinforce the view that jury trials should be retained? Those are the three questions that I wish to put before the House.
First, I wish to consider whether or not a jury is capable of properly trying a complicated fraud case or, to put it differently, whether a complicated and lengthy fraud case should not be put before a jury. I have some personal experience of the matter, although not as much as the hon. and learned Member for Medway (Mr. Marshall-Andrews). He is modest about his achievements, but there are few barristers with his experience in this field—I certainly do not presume to claim for one moment that I have such experience. His views are the fruit of years of trial practice, and they deserve serious attention. I have less experience but, in the past few years, I have taken part in two long fraud cases, both of which lasted more than 40 days, so I am familiar with the matter. In the other place, there are many Members who have much greater experience than me, and the majority of criminal practitioners, both solicitors and barristers, share my conclusions.
Is there anything about fraud trials which means that they are not a proper subject for jury trial? The Bill asks us to consider the proposition that fraud cases are too burdensome for juries, because they are too complicated and sometimes long, so jury trials are inappropriate. The Solicitor-General shifted his ground on some issues, but he told us that he does not seek to assert that fraud trials are too complicated for juries, because they cannot manage the evidence. I share that view. Having dealt with fraud cases, I have come to the positive conclusion that juries understand full well the nature of the evidence. As my hon. Friend the Member for Beaconsfield (Mr. Grieve) pointed out, in the Jubilee line case, members of the jury went out of their way in interviews to stress the fact that they were fully conversant with the evidence, notwithstanding the fact that many months had elapsed since the evidence was given.
We can therefore start from the robust assumption that juries are perfectly capable of understanding complicated evidence. That is jolly lucky, because many other trials involve complicated evidence. Trying to understand DNA evidence is not easy. Understanding lengthy phone schedules is not easy, and neither is understanding ballistics. Studying some blood samples is not easy, yet those are things that, time and again, juries are called on to resolve. I therefore have no time for the argument that such things are too difficult for jurors. As for the length of trial, it is perfectly true that it can be a problem, but I remind the House that jurors can be excused if they can provide a good reason. In
the Jubilee line trial, the jurors were ready to sign up for a six to 12-month stint. I do not accept that it is impossible to empanel a jury, or that it is too burdensome to do so.
Questions of complexity and length are not confined to fraud cases—an issue to which I shall return. Time and again, they arise in serious crime. Terrorism and conspiracy are a case in point, as are multi-handed murders, to which the hon. and learned Member for Medway referred, and affrays. Such trials can go on for months and months. Once we accept the proposition that an excessively long trial cannot be heard by a jury, we assert a principle that will destroy our civil rights.
Secondly, are there issues of principles that should lead us to conclude that jury trials should be retained? I am in no doubt about the matter, as I am wholly persuaded that major issues of principle are at stake. I am quite certain that public respect for law is based on the belief that at the end of the day serious trials are resolved by juries. If our liberties are taken away, we do not want them to be taken away by a single man or woman sitting alone. For many people, there is a huge gap between the defendant and the judge, who often appears to be part of the establishment or an instrument of the state who does not sympathise with ordinary people’s lives. If we allow judge-only trial, a gap will open up between the citizen and the judiciary, and between the citizen and the state.
A further unusual consideration is the perverse verdict. There are cases in which the guilt of the defendant is established beyond doubt by the overwhelming weight of evidence, yet the jury chooses to acquit. It can exercise that important safeguard for various reasons. For example, it may consider that the state is acting oppressively, as in the Ponting case. It may consider that a conviction would be wholly unfair, as in cases of mercy killing. It may consider that a trial and its consequences are disproportionate—I draw attention to road traffic legislation, and the fact that death by careless driving attracts a maximum penalty of five years. The possibility of a jury making what is technically known as a perverse verdict and refusing to convict in such cases is an important safeguard that defends the liberties of all. Arguments of principle are therefore in play.
We should consider pragmatic arguments, too. The hon. and learned Member for Medway asked some important questions that were not resolved by the Solicitor-General. The points that he made about public interest immunity were quite correct, and there is no sensible answer to his anxieties. If he will forgive me, I will develop his argument. At the moment, in a trial by judge and jury, the judge judges the law and the jury judges the facts. In long cases, when points of admissibility arise, submissions are made to the trial judge on previous convictions, hearsay evidence, alleged confessions and so on. The judges makes a ruling on the admissibility of those issues. If he decides in favour of the defendant, the jury will never know of the previous convictions, the alleged confessions or the hearsay evidence. Once a judge sits alone, he is called on first to make that ruling. If it is adverse for the defendant, the information is taken into account. If he makes a ruling, which he may be driven to, favourable to the defendant, he still knows the previous convictions. He still knows the hearsay evidence. He
still knows the alleged admissions. The trial judge will say, of course, “It will be put out of my mind”, but how reassuring is that in any real sense to a defendant facing a serious charge?
I know full well that that situation arises in tribunals. My hon. Friend the Member for Woking (Mr. Malins) sits as a deputy district judge and he has to come to exactly such a decision. He will forgive me if I say that the cases in which he presides do not attract very long prison sentences. It is a problem, it has always been a problem, but it is mitigated partly because the sentences are not so long, with a right of appeal to the Crown court, and partly because in many cases there is more than one judge sitting on the tribunal—for example, lay justices. It is an inherent problem. Whether or not it infringes the European convention, now incorporated into domestic law, is a matter for another discussion, but it goes to the quality of the justice that will be administered.
I shall make one final point and then my conclusion. Case management powers were again touched upon by the hon. and learned Member for Medway and referred to by his hon. Friend—if that is not an inappropriate word in the circumstances—the hon. Member for Wirral, West. There has been a huge change in recent years in the judicial powers of the court to regulate what can be done in trials. It is now much easier for the judge, especially when working in association with a co-operative prosecution, to ensure that indictments are not too long, that counts are carefully focused, and that the evidence is confined to that which is truly relevant. These considerations and the case management powers will help over time to deliver the objectives that many on the Government Benches seek to advance in support of the Bill.
To conclude, I feel very strongly about the Bill. I believe that it is part of a campaign by the Government systematically to undermine the protection which the law of England has afforded its citizens for hundreds of years. When they come forward and say that it is not part of an attack on jury trial, I recall the Criminal Justice (Mode of Trial Bill and the Criminal Justice (Mode of Trial) (No. 2) Bill, which we have had cause to consider. When I consider their protestations that they wish to rebalance the criminal law as between victim and defendant, I bear it in mind that many defendants are innocent people, or at least persons against whom there is not sufficient evidence. I call to mind the Criminal Justice Act 2003, many parts of which are a serious infringement of civil liberties.
I am extremely hostile to any attempt by the Government to diminish civil and legal rights, so I am against the Bill in principle. It is not necessary, for the reasons advanced by my hon. and learned Friend the Member for Medway. Juries are perfectly capable of dealing with both complexity and length. There are issues of principle here engaged. There are arguments of pragmatism here engaged. Collectively the House should give a resounding no to the Bill. If it is forced through, as I have no doubt it will be—on a three-line Whip—by people who have not attended the arguments on the matter, the other House must stand firm. If the Government want to use the Parliament Act to pass through an authoritarian and disgraceful measure, so be it. That will be in keeping with this Government.
3.42 pm
Mr. Humfrey Malins (Woking) (Con): I begin by declaring an interest as a Crown court recorder and as a part-time district judge. I associate myself entirely with the words spoken by the hon. and learned Member for Medway (Mr. Marshall-Andrews) and by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg). I bow to the expert legal knowledge built up over so many years by both of them. All of us would do well to heed their arguments. I only wish that more than one Member who supports the Bill was present on the Government Benches to listen to what the hon. and learned Member for Medway said.
Stephen Hesford: Was it not Churchill who said that one is enough?
Mr. Malins: The hon. Gentleman has made his contribution. I shall go no further.
I agree wholeheartedly with two points made by the hon. and learned Member for Medway. First, we have had far too much legislation in the field of criminal law in the past few years. Judges with whom I sit and to whom I talk are baffled by the volume of legislation, most of which is intended purely to get a headline and half of which is never implemented. It gets worse by the day. Secondly, the hon. and learned Gentleman rightly pointed out that none of the judiciary see any merit in the Bill.
The Bill is short, containing only four clauses, but it is massively important not just because of its contents, but because of what it might lead to in the jury system in future. I suppose that at first sight the Bill might not seem controversial. On the surface, the Government seem to be saying: “Some fraud trials are terribly complex and some are terribly long. Wouldn’t it be simpler if in a handful of cases, perhaps only half a dozen a year—nothing to worry about—there is a provision for the trial of such a fraud case to be heard by a judge alone. Wouldn’t we save a lot of time and grief?”
On the face of it, that approach is quite alluring, but let us look a little more carefully. The Government’s arguments do not stand up to proper scrutiny. My right hon. and learned Friend the Member for Sleaford and North Hykeham dealt with this very well. If the issue is one of complexity, would not Labour Members accept that not only fraud trials are complex? Earlier, I gave the example of a drugs trial in which I was involved years ago, which bore all the hallmarks of the complexity that the Solicitor-General argues should lead to a judge-only trial. It involved hundreds of thousands of documents and financial dealings all over the world, yet under the Government’s provision that complex case would not be subject to a judge-only trial. My hon. Friend the Member for Beaconsfield (Mr. Grieve) made the excellent point that health and safety cases in which he has been involved have been just as complex as any fraud trial could be. If the issue is one of length, then surely we should be focusing on case management to shorten cases.
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