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4.59 pm
Mr. Andrew Pelling (Croydon, Central) (Con): I listened carefully to the reasons given by the Solicitor-General and his hon. Friend the Member for Wirral, West (Stephen Hesford) for introducing the Bill again.
The issue is not the lack of jury capability, neither is it the length of cases brought before court; otherwise, the Bill would include a general proposal about the prospective length of cases other than fraud. The Solicitor-General said that more than 60 per cent. of cases taken to court result in a successful prosecution, so the Bill was not introduced to tackle a failure to prosecute fraud successfully. He referred to the desire that cases be dealt with expeditiously, and he emphasised—this appears to be the Government’s main argument—that the burden on the jury is the primary issue and reason for introducing the Bill. It is for the House to consider whether the burden on jurors is such that we wish to give up the rights of Her Majesty’s subjects to trial by their peers. The argument, bearing in mind my colleagues’ strong comments throughout our debate, is that the burden on
12 members drawn from the electorate in England, Wales and Northern Ireland is such that we should give up those rights.
Abolition appears to be an expedient solution, and some hon. Members asked whether it would set a precedent. The Solicitor-General said that there were no plans for treating it as a precedent for further legislation to withdraw the right to jury trial, but I would be more reassured if he had said that there was no intention to introduce such a change in future. I was particularly disturbed by references to Diplock courts.
Mr. Pelling: I hope that I have not antagonised the Solicitor-General.
The Solicitor-General: There is no intention.
Mr. Pelling: That is helpful, but it might have been better if that comment had been made earlier.
Many cases that have been heard under the judicial system are as complicated as fraud cases, and ordinary members of the public are able to make a judgment about the dishonesty of people charged with a certain type of fraud. We heard from Members with experience of the legal profession that it is not the fraud itself that is the problem but whether the individuals on trial are at the heart of case. I do not take offence at the suggestion from the hon. Member for Wirral, West about good court management, but the effective management of court cases is more likely to reduce the burden on juries than the proposals in the Bill are.
We heard about pressure on judges, who would become the primary purveyors of justice in fraud cases. No doubt only a limited number of judges would have the specialist knowledge to consider such cases, and if they are to try cases on their own, we must be concerned about moving to a continental system where judges are more exposed to pressures from the criminal community.
We have heard only two speeches in favour of the Bill. My hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) spoke about the casual way in which such so-called legislative reform is introduced in the House. It must be disturbing to those in the Public Gallery to have heard so many speeches against the Bill, yet to know the House is so weak that the Bill will nevertheless be progressed through its Second Reading on a three-line Whip. Is the argument important to the Solicitor-General, or, given the ability of the other place to vote down the Bill, will he ensure that the Parliament Act is used so that the opposing voices in both Houses are ignored?
5.6 pm
Mr. David Burrowes (Enfield, Southgate) (Con): I declare an interest as a practising criminal solicitor. Indeed, my firm has been a member of the serious fraud panel. With that interest and understanding, I shall make some preliminary comments.
I was involved in one of the most substantial fraud cases. It went on for some 10 years before it reached court, continued for a further 12 months before the jury was involved, and eventually collapsed as a result of legal argument. That illustrates the possible complexity and extreme length of fraud cases and the fact that the jury may not be involved in the problems inherent in such serious and complex cases.
I declare a particular interest, having been summonsed to do jury service. Despite some protestations, I must do my duty, and properly so, at the central criminal court next year. I shall put to the test the “stupid juror” theory to which my hon. and learned Friend the Member for Harborough (Mr. Garnier) referred. Perhaps on Report I shall be able to report back on whether my fellow jurors and I pass that test. The view, implicit in the Government’s case, that jurors are stupid is improper and patronising.
Parliament has a fundamental interest in the argument. As my hon. Friends have noted, Sir Patrick Devlin pointed out that each jury is a little parliament. Parliament and juries are mutually dependent for their strength. The scant interest in the Bill shown by those on the Government Benches is indicative of the Government’s approach. Some may say that is because the issue has been discussed before and this is the third or possibly the fifth round.
However, the Bill is of fundamental importance, and the lack of interest among Government Members may indicate their subservience to the Government. Devlin highlighted the concern that the first act of a tyrant, however well-intentioned, leads to the subservience of a Parliament and the second act diminishes and extinguishes juries. On the Opposition Benches, there is no such subservience. We will challenge the Bill and look to the other place to do likewise and stand in the way of the Government. It is in the interests of lawyers, jurors, and the state—indeed, of everybody—to seek to secure successful prosecutions. The jury system is a cornerstone of our democracy and, importantly, commands a high level of public confidence.
As Sir Patrick Devlin said, we should recognise that the jury ensures that Englishmen—and, in deference to my hon. Friend the Member for Clwyd, West (Mr. Jones) to Welshmen, and those in Northern Ireland—get the justice they like, not the sort that the Government think is good for them. At the root of the Bill is the Government’s belief that they have a monopoly on defining what is justice, and they are seeking to impose that through the Bill. We want to ensure that that choice should continue to be with the people, through their participation by way of the jury.
I shall try to be as charitable to the Government as possible. They have referred to the stresses, strains and burdens involved in the jury system. However, everyone recognises the value of the principle of judgment by his or her peers, so is there good reason to sacrifice it in cases of serious fraud?
I was in practice, and I can recognise the problem, as we all can. Too many cases of serious fraud are not successfully prosecuted, and the length of time taken to deal with those that are investigated and prosecuted is a matter of great concern and must be dealt with properly. However, in justifying their restrictions on jury trials, the Government go from one argument to another. We heard about the length and complexity of
cases, as well as the inadequacy of juries. We might not use the words of the Solicitor-General, who referred to the stupid juror test, but the implication is that they are unable to cope. His final argument was that it is necessary to address the full criminality of the case.
Has the Solicitor-General made the case for sacrificing the important principle of the jury on the basis of length and complexity? I do not agree that juries cause the length of cases.
The Solicitor-General: My point was not that the jury caused any lengthening of cases, but that in order to ensure that cases could be put before a jury it was necessary, as Lord Justice McKinnon said, for the courts to manage the process. They did so by severing cases, by reducing the number of charges, and sometimes by not prosecuting all those potentially involved.
Mr. Burrowes: I am grateful for that clarification.
The Solicitor-General alluded to the Jubilee line case. We must give proper weight to the report by the chief inspector of the Crown Prosecution Service, who would seem to be in a good position to be able to make recommendations. The report said that no responsibility for the inconclusive outcome of that case can properly be attributed to the capabilities or conduct of the jury. We should attach great weight to that, as it suggests that there are other ways to deal with the problem.
The Solicitor-General: The inspector, Stephen Wooler, also made it clear that there was no reason to believe that section 43 would necessarily apply in the case of the Jubilee line. Therefore, even if this Bill were passed, a case such as the Jubilee line case might be heard before a jury in any event.
Mr. Burrowes: That point has also been made by other hon. Members. Nevertheless, it has been part of the Solicitor-General’s argument that cases such as the Jubilee line and Blue Arrow have caused many problems. In Her Majesty’s chief inspector’s suggestions on what to do about those burdens, he was talking not only about the Jubilee line case but about the problem that some trials are of substantial length. He said that such cases did not need to be taken away from a jury; rather, they needed a proper structure and support, and they needed to be planned effectively to minimise the disruption for jurors and to provide authoritative assistance. That needs to happen, and I would be interested to find out what progress has been made in that regard, and also what steps have been taken that have not worked, that justify taking this extra step of sacrificing the principle of trial by jury. I should be happy to give way to the Solicitor-General if he can tell me what steps have been taken as a result of those suggestions to avoid the situation that we find ourselves in now.
If we are to make this sacrifice, it is important to recognise that there would be a limited number of cases involved. Of the 40,000 or so cases going to the Crown court, we are talking about 20 or so cases, and about six this year. Indeed, in four years, only 26 cases have lasted more than six months. That puts this matter in perspective, if the Government are using those cases as a justification for going down this route.
Case management is highly relevant to this issue. The criminal procedure rules were introduced at the end of
March for quite proper reasons, in order to streamline cases, to make interviews more succinct and to ensure that the length of trials could be reduced wherever possible. But where is the evidence that any of the six cases this year has not been properly streamlined and reduced in length? Must we still go a large step further and seek to undermine the principle of trial by jury?
The Government’s next justification for sacrificing that principle is that of complexity. By implication, that justification casts aspersions on the members of the jury—my fellow jurors, if I were asked to serve on a jury in a fraud trial. I should have to see whether I could get that length of time off to do so, but no doubt that would be the case. Would we, the jury, be able to cope with the complexity? That is the essential question for jurors. It is plainly patronising to question a jury’s ability to cope, and there is little evidence that they could not do so. It is a matter of conjecture, and I am worried that that argument is being used to justify taking such a serious step.
The Government advance an argument about the prosecution being able to establish full criminality. The Solicitor-General has made the point about paring down charges and wanting to prove them. However, the fundamental issue is that justice must be seen to be done. The public are explicitly involved in that process by being members of a jury. A trial is not there just for the lawyers, for the defendants, for the victims or for the judge. It is not there for the state. It is there for the public, and for this country. It is there to provide an understanding of the conviction and the sentence, which is guaranteed by having a jury. We will not all go into the courtroom to listen to what is reported there, but the presence of the jury ensures that the public participate in the important judgment that is made.
Why is fraud getting such special treatment? Why cannot the Government give careful consideration to how to deal with the burdens of full criminality? Why do they not consider the Domestic Violence, Crime and Victims Act 2004—the protocols of which are being implemented, as I was informed in a note only today—which allows the judge alone to consider similar charges after the defendant has been convicted on a sample count? Why do the Government not consider the effect of that, rather than rushing, as they seem to be doing, to throw away the jury? That leads many of us to suspect that they are not willing to consider the case management rules from last year, or the effects of the Domestic Violence, Crime and Victims Act, but are seeking to abolish jury trial as a point of principle.
Others have drawn attention to a concern that Blackstone put much more authoritatively and succinctly than I could:
“these inroads on the sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concern.”
I invite the Solicitor-General to consider that point.
Let us deal in isolation with the Solicitor-General’s case on full criminality. Why cannot we apply the same principle of wanting to establish full criminality to other cases, such as health and safety cases? The Solicitor-General said that the RCPO might want to deal with financial implications of drugs cases as an
adjunct. Where will that lead? Perhaps drugs cases, in which prosecutors must decide which of several defendants and counts to go for, will have that principle applied to them. Why should not we sacrifice the principle of the jury system in relation to terrorist cases, in which it might not be possible to expose full criminality without a complex, lengthy trial? Sadly, if the argument were applied consistently, that would be the case, and it is feared that that will happen.
The Under-Secretary of State for the Home Department, the hon. Member for Enfield, North (Joan Ryan), justified the steps to be taken by saying that a double standard in relation to easy-to-prosecute petty frauds and unprosecutable major frauds was unacceptable. Are not double standards, with two different trial systems for criminal cases, exactly what the Bill suggests? A distinction is being made between white-collar crime and other crimes. Are not double standards inherent in the Bill? Rather than referring to unprosecutable cases, should not we be dealing with prosecutions?
To go a stage further, slightly away from the Bill but still on the subject of fraud, is it not the case that many minor frauds are not even investigated? Is not the double standard illustrated by the fact that one cannot get insurance companies or the police to investigate credit card frauds costing individuals millions? In terms of wanting to deal effectively with fraud, that is where the double standard is, not in the major frauds. The problem of trying to secure a successful prosecution is not dealt with by removing the jury. Instead, we should try to improve prosecutions.
The Solicitor-General cited magistrates courts as a defence for judge-only decision making, but the core of the magistrates court, as I know it from being there year in, year out, is the lay magistracy. It is the beacon of magistrates. The Government have sought to diminish and limit its role, but it is part and parcel of the magistrates court and of the public participation that is itself part and parcel of the criminal justice system.
The hon. and learned Member for Medway (Mr. Marshall-Andrews) is right. The Government do indeed have form—considerable form—in relation to removing the opportunity to opt for a jury trial. Form exists in the attempt to remove that opportunity in minor cases, but also in the attempt to prevent defendants themselves from opting for jury trial. That is of great concern to us all.
As Members in all parts to the House have recognised, burdens are involved in dealing with serious and complicated fraud, but surely that is a price worth paying. Blackstone and others have referred to the price worth paying for justice. Surely we as a Parliament, given our dependence on the jury as a little parliament, should recognise and respect its fundamental importance to Parliament and to the country.
Tonight, as on other occasions, we must be a jury deciding on the Solicitor-General’s case. Has the case been made for doing away with jury trial in limited circumstances? It is certainly not clear, and I would say there is no case to answer. We shall have an opportunity to vote, but given the case made by the Solicitor-General, I think it should be thrown out.
5.26 pm
Mr. David Heath (Somerton and Frome) (LD): It is a pleasure to follow the hon. Member for Enfield, Southgate (Mr. Burrowes). Towards the end of his speech, he referred to the imbalance between cases involving minor offences, which are often not prosecuted and with which I think the criminal justice system fails to deal adequately, and major cases, which are often brought to court but then badly prosecuted. That is indeed a difficulty.
There is a dreary inevitability about the debate. As many speakers have observed, we have been here before. Introducing the debate, the Solicitor-General referred light-heartedly to a repertory company. If we are a repertory company, it is simply because we share the view that there are basic freedoms in this country that we must defend, and jury trial is one of them. It is a monotony, but an inevitable and necessary monotony, that we must be here on so many occasions to respond to the Government in such a way.
As others have said, there is a history to this. The Government are multiple recidivists, chipping away at the jury system as one of their many attacks on traditional British freedoms. It is possible to wax grandiloquent on these matters, and some Members have done precisely that this afternoon. I do not blame them: there is a temptation to quote the great charter, and to say that this is the fount of our freedoms and something that matters intensely.
Mr. Heath: It is true. At the same time, however, there is a perfectly rational case to be made that does not have to be made in those terms. This is something worth preserving because it is an inherent part of the British—the English and Welsh—criminal justice system, and something that we hold dear.
I have heard not a word of evidence from the Solicitor-General to prove that the position has changed since we last debated jury trial. I have heard nothing to suggest that experience in the courts requires a change that we blocked in the Criminal Justice Act 2003 because we were so convinced that it was an adverse change—and we received assurances then that it would not proceed without affirmative resolution in both Houses. Indeed, I would say quite the reverse.
When we consider the statutory changes that have been put in place, the protocols that have been brought in on the management of cases, the changes effected by means of the Fraud Act 2006, which received Royal Assent only very recently, and the fact that a fraud review is in place and is due to report soon, the only conclusion that we can draw is that there is one reason and one reason only why the Government are bringing forward this Bill now. By bringing it forward now and having it rejected by another place, they can bring it back again and use the Parliament Act to push it through, because they know perfectly well that the majority in another place, and a substantial minority in this House, will not stand for it. As they are determined to push it through and they do not have the arguments to support their case, that is the mechanism that they have chosen to use.
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