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I come to the second point of principle about which I feel strongly. It is extremely important for public confidence in our criminal justice system that it should not become the protected private preserve of a professional caste. With due respect to those of my right hon. and hon. Friends, and colleagues in all parts of the House, who
are professional lawyers, it is not healthy for the law to become an arcane, closed system whereby the only people in a courtroom who are not lawyers are the defendant and the doorman. The jury system draws the wider citizenry into the process in a systematic way, which is extremely valuable.
The third point of principle is that creating a two-tier criminal justice system is profoundly problematic. We all know that the distinction between people who have an automatic right, or the right to elect trial by jury, and those who are dealt with in a summary fashion, is a distinction between lesser and more serious offences. We could argue all afternoon about what constitute lesser and more serious offences, but the general point of common sense has always been that a serious offence is where a conviction would have had a very damaging and perhaps devastating effect on the life of the individual so convicted, because of the damage to their reputation or the considerable loss of liberty arising from a substantial sentence. We would all agree that, in that sense, speeding is not a very serious offence but murder is. We have to draw the line somewhere.
If the Bill proceeds today, serious fraud, which has always been considered an extremely serious offence and usually involves a very long custodial sentence on conviction—so that it undoubtedly and without the slightest ambiguity falls into that category of a serious offence—will no longer be appropriate for jury trial. That is a very serious and damaging development. In the category of serious offences, there will be a two-tier system of justice, with some types of offence being tried in front of a jury—as we have discovered this afternoon, we must worry about how long even that will last under this Government if they pursue their agenda—and others being tried only by a judge, with no right to jury trial, thereby contradicting the Magna Carta principle. That is a two-tier system.
In the light of what the Solicitor-General has said this afternoon, I am a great deal more worried about this issue than I was at midday, before the debate started. He seemed to say in support of his proposals that under his system, a judge could read a great deal of evidence, which would not therefore come out in front of the court. Of course, it is perfectly proper and desirable that when a judge is presiding over a jury trial, he does a lot of homework before the trial opens, simply from the point of view of managing the trial effectively. That is fine—if the judge is not going to reach a verdict. However, the idea of a judge with responsibility for reaching a verdict reading before the trial begins material that will not be delivered in open court, and which cannot therefore be challenged by the defendant or his or her counsel, is deeply troubling. It is extremely subversive of the whole principle that evidence should be available to the court, and equally to the defence and prosecution, and that the defendants should, at every stage, have an opportunity to challenge any allegations made against them.
The Solicitor-General:
The hon. Gentleman may find it useful to realise that there has long been a distinction between material that is used and is relevant to particular parts of a case, and unused material that is essentially background material that is not probative of
a point at issue in the case. Also, some statements can be just read out in court and do not require cross-examination because they are accepted. There are various kinds of evidence and some of the unused material may be able to be read by the court if that is appropriate in all circumstances.
Mr. Davies: Well, the Solicitor-General has deepened my concerns. A statement made in court and unchallenged is taken to be accepted. If a defendant does not challenge some material evidence that is used against him, a jury—or, indeed, the judge—may draw negative conclusions from that. But if a judge has read it in his chambers and nobody knows that he has read it, the defendant does not have the opportunity to challenge it. That could be very damaging. The prospect of a two-tier system of justice—with two different standards of evidence, and of challenging and sifting evidence—would no longer be theoretical, but actual. The Government have admitted as much this afternoon, and that is extraordinarily worrying.
There is no conflict or trade-off between these points of principle and those of pragmatic consideration. When I consider the pragmatic points that have been raised this afternoon, I cannot see even the beginning of a case for eroding, attacking or degrading the essential principles. The Solicitor-General got into a frightful mess this afternoon because he conceded the point that the Government were not suggesting that juries were not capable of understanding the evidence in serious fraud cases and they were not introducing the Bill on that ground.
I jotted down several remarks that the Solicitor-General made about juries in serious fraud cases, and no doubt others will be reported in Hansard. He talked about juries’ “steep learning curve”. If that is not patronising or disparaging of their ability to master the evidence, I do not know what is. He also talked about extremely complex and obtuse evidence, with the implication that it would be difficult for juries to understand. So he started by saying that he would not challenge juries’ ability to master the evidence, and I can see why, politically, that would be a foolish approach. It would be very patronising of all the good people who take part in those trials and cast an unjustified aspersion on them, so he does not want to say that. However, he then proceeds to use phrases and epithets in the course of the debate that imply that he does have a lack of respect for juries’ ability to cope in serious fraud trials. That is a contradiction in the Government’s position.
Much of the Government’s supporting publicity material has been based on the assumption that juries cannot cope with such cases and, as a result, we have to change the basis of the law. The Solicitor-General also said that it had been the case in the past, and that under this regime the evidence had had to be simplified and fewer charges laid and that it was not possible to bring the full criminality involved to the attention of the courts. The implication is that juries cannot get their poor little heads around more than a small number of charges. In practice, the argument makes sense only on the assumption—which he explicitly rejected—that the Solicitor-General does not believe that juries are capable of performing that role.
Kate Hoey (Vauxhall) (Lab): Will the hon. Gentleman give way?
Mr. Davies: I shall give way to the hon. Lady with pleasure, although I had hoped that the Solicitor-General would challenge what I am saying. His lack of movement gives me comfort that I am not far wide of the mark.
The Solicitor-General: Will the hon. Gentleman give way?
Mr. Davies: Certainly, but first I must give way to the hon. Member for Vauxhall (Kate Hoey).
Kate Hoey: I thank the hon. Gentleman. I am following his remarks and agreeing with them wholeheartedly. Does he agree with me that our confidence in the jury system stems precisely from the fact that members of the public see that juries are ordinary men and women like themselves? That helps to give people confidence in our legal justice system in general. Would not the sort of change being suggested today cause them to lose confidence in the system?
Mr. Davies: I am very grateful to the hon. Lady, and I agree with everything that she says. Before she entered the Chamber, I said that, apart from the Whip, the Minister and his Parliamentary Private Secretary, only two Labour Back Benchers had even listened to the debate, let alone taken part in it. Many people will read the Hansard report of the debate and they will notice that two of the three Labour Back Benchers who have now spoken are clearly deeply sceptical about the fundamental principle underlying the Bill, and indeed appear to oppose it. It is significant that the majority of Labour Members who have bothered to come to the debate have formed a judgment against the Bill.
The Solicitor-General: Will the hon. Gentleman give way?
The Solicitor-General: The hon. Gentleman invited me to intervene if I disagreed with him. For the record, I think that his criticisms were amply dealt with in my opening remarks. The Opposition have constantly put up a straw man in this debate, saying that the Bill is all about the Government’s belief that juries are incompetent in understanding. That is not our position—we believe that we need to consider the burden placed on ordinary members of the jury as a result of long fraud trials. I am sorry that the hon. Gentleman does not care about that, but I think that Members of this House ought to.
Mr. Davies: The Solicitor-General has not dealt with the fears and suspicions that I have set out. On the contrary, it was his opening remarks that created them in the first place. He has talked about juries facing a “steep learning curve” and having difficulties with “obtuse” evidence. If such statements do not imply that juries find it difficult to understand the evidence, I do not know what they do imply, or whether they have any meaning in the English language.
Mr. David Jones (Clwyd, West) (Con): Will my hon. Friend give way?
Mr. Davies: I will give way in a second, after I have finished this point. Is the Solicitor-General trying to say that trials have been taking too long? Alternatively, is he claiming that it has been necessary for the prosecution to simplify indictments and not bring as many charges as would otherwise be the case, with the result that the full criminality of events alleged in the course of proceedings is not expressed? If so, that makes no sense unless the implication is that more complex indictments could be brought forward if juries were got rid of and, in turn, that makes no sense unless the concomitant implication is that judges are able to understand what juries cannot. My contention is that the only logical conclusion to be drawn from what the Solicitor-General has said is the one that I have set out. [Interruption.] However, in the interests of justice, which I believe in, I shall give the hon. and learned Gentleman a brief right of reply, and then give way to my hon. Friend the Member for Clwyd, West (Mr. Jones).
The Solicitor-General: I am grateful to the hon. Gentleman, as we are finally getting down to the real arguments in his speech. Does he agree that the present arrangements lead to trials being severed and to charges being omitted from indictments so that the full criminality involved is never exposed in court? Does he accept that defendants sometimes do not face proceedings because they are tail-end charlies and not central to the case in hand? Does he not find it objectionable in terms of justice that the full criminality of a case will not be exposed in a single trial?
Mr. Davies: No. This may be a technical point, but it is an important aspect of the law. The Solicitor-General raises some important, pragmatic considerations. Every week, prosecuting authorities, such as the SFO and the Crown Prosecution Service, and the counsel they appoint and brief, have to take important decisions about such matters. The Solicitor-General and I take a different view. I disagree with him completely. Justice does not require that the indictment be exhaustive; it does not require that every act that might be deemed contrary to the law, and therefore criminal, should be included in the indictment. I do not believe that at all.
As elsewhere in human life, we have to concentrate on the essentials. Human time—like other resources such as money—is not infinite. Whether the case is being heard by a judge or a jury, we do not want it to go on for a month of Sundays; we want to deal with the essential points—the essential criminality—and prosecute the egregious offences. If a guy has been convicted of a rape and a murder, it does not much matter if we forget about the fact that he has a few motoring offences on his record. Anyway, if there is a conviction on the major charge in a serious fraud case and other offences are taken into account, it barely affects the sentence. It would not affect the sentence at all if the other sentences were concurrent so there would be no practical effect. The idea that we can achieve platonic perfection in the law courts and expose all the criminality is wrong and futile. We cannot succeed and it is dangerous to try because we would muddle the justice system and make it much
more difficult for people—not just juries or judges, but people outside—to understand the essentials of the incident that led to the prosecution.
Mr. David Jones: If, as the Solicitor-General suggests, the Government’s only concern is to relieve juries of participation in lengthy trials, does my hon. Friend agree that there seems no reason to raise the question of complexity as a consideration for the judge? The only consideration should be the length of the trial; complexity should be irrelevant.
Mr. Davies: I agree. One should not try to anticipate precisely how long a trial will be before it starts. That would be contrary to the interests of justice. One might genuinely think that the matter could be resolved in a week or two, but issues might arise, or the defence might want to call additional witnesses, and it could take longer.
That is not to say that trials should not be effectively managed. As I said earlier, there is a contradiction in the requirement on the judge to preside over the trial effectively and manage it properly—which means that he has to read himself into the case in advance to assess what the main points are likely to be—and giving him the obligation to reach a verdict. He can reach a verdict only on the basis of evidence that is made fully available to the defence, so that the defence has a full opportunity to challenge it during the trial. If the judge is reading material privately or in chambers before the trial starts, he cannot reach a verdict on that basis. There is a conflict of interest. This is a matter of principle, as I pointed out earlier, but it has important pragmatic considerations.
I have dealt with the principle as clearly as I can, so I shall continue on pragmatism. When we consider the historical, empirical evidence, there is general agreement that the Jubilee line trial collapsed for reasons that were nothing to do with the jury; they were the first people to be taken aback by the fact that the trial had collapsed and expressed themselves quite clearly on that point, as they did about the patronising suggestion that it was something to do with them because they were unable to master the evidence. They had no opportunity to reach a verdict, so the collapse was nothing to do with them.
The Solicitor-General mentioned several other well-known cases, such as Maxwell, Blue Arrow and, I think, Guinness 2. Those cases collapsed because of mistakes made by the prosecution, including sometimes the desire to over-prosecute and put too much into the indictment—just to rub in the point I made when I dealt with the Solicitor-General’s intervention. It is a mistake to over-charge. Indeed, I think that one pays lawyers—one normally pays them very expensively—for their ability to identify the essentials of a case, not to waste time, and not to obfuscate but to clarify. So that is an indictment of the prosecution of these cases. Sometimes the trial judge simply loses control of the case, and that may well have been so with Jubilee line. In a way, we are treating the jury as a scapegoat—an innocent sacrificial victim—for the failings of professional lawyers in the form of judges or of prosecuting counsel. That is quite a serious injustice in itself and should make us think.
The final piece of pragmatic evidence and consideration that I want to bring forward has already been mentioned in passing by the hon. Member for Somerton and Frome (Mr. Heath), anticipating me slightly. We should look at the American experience, because the Americans have been extremely successful in getting convictions in very complex fraud trials. They do not get more complex than Enron or WorldCom.
Enron’s was a scam involving a very complex series of off-balance-sheet accounting mechanisms, which were effectively disguised. I suppose they were disguised from the auditors, but I think that the extent to which the auditors were criminally negligent or not is still a matter of sub judice, so I had better not comment on that, even though we are talking about an American jurisdiction—and frankly I do not know, which is the real reason why I do not comment. But it is extraordinary and amazing that the auditors did not pick it up; I happily say that on the record. Certainly, all those highly paid Wall street analysts—very few earn less than $500,000 a year, and most earn more than $1 million—who were covering Enron did not pick it up. So it was a very clever fraud. It went on for a long time, and we know that it was very damaging.
That case was complex and it was dealt with by a jury trial. The prosecuting authorities did succeed in getting some plea bargains with the lesser criminals, but the main convictions against Skilling and Lay, the chief executive and the president of the company, were secured against not guilty pleas before a jury. That is a very good test and the system worked very well. The Americans have put inside a whole series of very serious, very sophisticated financial fraudsters; one thinks of Levene, Boesky and Milken, and they do not come bigger or more complex than that. We must take account of the American experience.
Looking at this as a matter of principle, unless Members on the Labour Benches have a totally different view of the merits and the virtues of our constitution and the legal system—which I do not believe, because I like to think that we all share some of the same cultural, historical values of our country across the Chamber—I cannot see the beginnings of a case for making an attack on the jury system, even this limited attack, let alone any further attack that might be made. It was suggested several times this afternoon that there is a danger that if this wedge goes through, we shall find that a whole new category of criminal trials is excluded from jury trial in the future, perhaps in the Government’s next fraud Bill or criminal justice Bill.
It seems to me to be a matter of principle that no case has been made to make these changes and, pragmatically, we do not have a trade-off. We do not have positive pragmatic arguments working against the principle. We have a clear series of experiences, in this country and in the United States, which weigh very much in favour of keeping the status quo.
In my opinion the Government’s proposals are incredibly misconceived. I am deeply saddened that practically no one from the Labour party has been in the Chamber—just three Back Benchers—and Labour Members will all troop in, without hearing the
arguments, and vote the way that the Whips tell them on this matter, which has been brought forward with the greatest degree of levity and lightness of concern for some very deep and important principles.
I do not always speak in a very friendly way of what I often call the “nominated Chamber” in this legislature, but it will have the role of picking up where we have failed. I just hope, as my right hon. and learned Friend the Member for Sleaford and North Hykeham said, that the other House will ensure that it looks very carefully at the real arguments before it makes a fundamental change in a foundational principle of our liberties.
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