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I have still not heard any adequate arguments about why what is good for the United States is not good for us. The US prosecutes many more serious frauds than we do, and it does so successfully and is often proposed as a model of how to prosecute white-collar fraud effectively in the rhetoric of Ministers in our country. I have still not heard an adequate reason why the Americans can manage perfectly well with a jury system and we apparently cannot—why a jury in Texas can do what a jury in London apparently cannot.
Stephen Hesford: I do not know whether the hon. Gentleman was present when my hon. Friend the Member for Newcastle-under-Lyme (Paul Farrelly) made the point that the Americans have a substantially different system from us in terms of plea bargaining. One of the reasons why they get through such cases more efficiently than us is that they have a very clear set of rules on plea bargaining.
Mr. Heath: That is an interesting observation, but the Bill before us today is not called the “Plea Bargaining Bill”; it is the Fraud (Trials without a Jury) Bill. The Government have concluded that if it is difficult to manage a case, the jury should be got rid of as that is the obstacle. But there is no evidence to support the view that it is the jury that is the obstacle.
It has been said that the intention behind the Bill is to secure more convictions. I listened carefully to the earlier comments of the hon. Member for Wirral, West (Stephen Hesford) and it very much sounded as if he was saying that one of the advantages of the Bill is that we would secure more convictions.
Stephen Hesford indicated assent.
Mr. Heath: The hon. Gentleman is nodding that that is the case. I find it alarming that a person who is a lawyer—an officer of the Supreme Court—believes that by transferring responsibility for the determination of fact from a jury to a judge more convictions will be secured, when the only change is that the determination of fact is by a person employed by the state rather than 12 free men and women of this country. That is to misunderstand our legal system in a way that I find alarming in a trained lawyer. As a layman, I understand the distinction here, and I would have hoped that the hon. Gentleman would as well.
There has been constant reference to the complexity of serious fraud. We know that serious fraud is complex; it is of necessity complex. It is the job of prosecuting counsel to lay out those complex matters in a way that is intelligible to the court, and if they are not doing so, they are failing. If the argument is that the case is so complex that it cannot be produced in court at all and can only be handled by a judge in pre-trial proceedings reading through the supporting paperwork and coming to conclusions, we will have a more fundamental change to our legal system than we even suspect from the contents of the Bill.
If, however, we are simply saying, “Yes, these are complex matters and they will take a certain amount of time,” then let us implement some of the procedural changes that we have already put in place. Let us see parts of Bills that we have debated at length in this House put into effect; I am thinking about the multiple
count provision in previous legislation over which some of us agonised, only to find, to our horror, that that important issue is left on the shelf for years although it was considered to be a matter of great urgency. Let us see the management of the case deal with the presentation effectively. But, let us not take out the crucial element of British justice—the jury—in deciding how to deal with such matters.
On the question of the length of cases, I come back to case management. I do not believe that it is necessary for summing-up speeches to take 50, 60, 70, 80 or even more than 100 days. I am sorry, but I do not accept that that is good presentation of, or good management of, a case, and it does not happen in the United States. The hon. Member for Wirral, West said that that was all down to plea-bargaining, but it is not; it is also about case management. I cannot remember the exact number of days that the Enron case took, but I think it was about 50 in total. That would not happen in this country. A similar case would not be heard in that time. That is the difference between the management of cases in the US and here. Let the British Government look at how cases can be presented better and more effectively in court, instead of removing the people who are the determiners of fact.
Then there is the extraordinary argument, to which I drew attention in an intervention, that because only a limited number of people can be available for the time required, juries become unrepresentative, and a court’s representative nature is somehow improved by having the facts decided by one judge, rather than by 12 people drawn at random from the community. That is an absurd argument, and I hope that the Solicitor-General will not advance it again.
There is also the argument about the full criminality of cases not being displayed. I have mentioned the multiple count legislation, which is already on the statute book. Those hon. and learned Gentlemen who speak with the authority of having acted in a criminal court know perfectly well that it is very rare for the full criminality of a multiple offender to be displayed to the court, because a prosecutor chooses what they will present before the court and what will secure the appropriate penalty. It is a complete red herring on the part of the Solicitor-General to suggest that the only way that justice can be secured is by putting before a court every single count of criminality that could be adduced to it in order to provide complexity, when complexity is actually unnecessary in securing an adequate conviction.
I was in the room with the Home Secretary of the day—the right hon. Member for Sheffield, Brightside (Mr. Blunkett)—as was the hon. Member for Beaconsfield (Mr. Grieve) and my hon. Friend the Member for North Southwark and Bermondsey (Simon Hughes), when we were promised that we would have proper debate, discussions and consultations between the parties on this very important matter. We were not given that. The Attorney-General asked a few of his chums in the other place round for a seminar, and we were told later, “By the way, that was the consultation that you were promised.” Our Front Benchers responsible for this issue were never invited to that seminar, or even advised that it was happening. That was the “consultation” between the parties that was supposed to have happened, at which we were supposed to have looked for alternatives
to the removal of jury trial. We were not convinced that there would be a result, but we were happy to engage in such a conversation.
We are left to conclude that the only reason why the Bill is before us today is that the Government are determined to chip away at the principle of jury trial. They have done it once, twice, three times—however many times—and they will continue to do so. I am sure that the Solicitor-General is giving his assurances on best advice and with the best of intentions that nothing further is planned. I am sorry to say, however, that nobody on the Opposition Benches—and not many on the Labour Benches—believes for a moment that, if the Bill is enacted through the use of the Parliament Act, there will not be a return raid yet again to remove elements of our judicial system. The Home Secretary said that the idea that justice is done before a court is an old-fashioned one. Those are the most chilling words that I have ever heard a Home Secretary say. I believe that justice is done in British courts before a British court with a British jury, and I am certainly prepared to defend that.
Damian Green (Ashford) (Con): On a point of order, Mr. Deputy Speaker. Many hon. Members will be concerned by reports of violent disturbances at the Harmondsworth immigration detention centre in west London, where every wing has been set on fire. Has the Home Secretary given any indication that he proposes to come to the House at the conclusion of business to explain what has happened and what he proposes to do about it? That is a serious outbreak of violence in a sensitive institution and the House deserves to hear what Ministers are doing about it.
Mr. Deputy Speaker (Sir Michael Lord): I can understand the hon. Gentleman’s concern about that serious matter, but at the moment I have no information that a Minister plans to make a statement. No doubt Government Front Benchers have heard what the hon. Gentleman has said and will take whatever action they think appropriate.
Mr. Hogg: Further to that point of order, Mr. Deputy Speaker. Can you advise the House whether in special circumstances, such as those outlined by my hon. Friend the Member for Ashford (Damian Green), it is possible to table an urgent question? I know that it usually has to be done early in the morning, but this is an exceptional situation.
Mr. Deputy Speaker: The right hon. and learned Gentleman is correct. Urgent questions have to be tabled in the morning and the procedure does not apply at this time.
5.40 pm
Mr. Edward Garnier (Harborough) (Con):
I shall begin by referring to some remarks made by the hon. Member for Somerton and Frome (Mr. Heath). Like me, he was present in the Standing Committee meeting on 14 November 2005 when we discussed the same issue with the hon. Member for Slough (Fiona Mactaggart), who was then an Under-Secretary at the Home Office.
He and I had the better of the arguments then and I suspect that the House has had the better of the arguments today on the Government’s case for the Bill—or their defence against the arguments we have heard.
Nothing has changed since then, especially not with regard to the Government’s ability to understand the opposition to their arguments. The hon. Member for Somerton and Frome’s point about the threat of the Parliament Acts is a good one, but it is even better when one considers the Acts that have been pushed through the House—by both Conservative and Labour Governments—by that means. I suspect that in the cool light of day—and of history—Governments repent the use of the Parliament Acts to push through legislation.
I have a triple advantage—or it may be a triple disadvantage—in that I have been an advocate in front of juries, especially in civil trials, for the past 25 or 30 years. I have come to respect the way in which juries, which nowadays are made up of a diverse cross-section of people, deal with the issues in front of them. Some of the jury trials in which I have acted as an advocate have involved simple issues and some have involved complicated issues. However, I have always been impressed by the collective wisdom and common sense of the juries before which I have appeared, both when they have found in favour of my clients and when they have found against them. Sometimes the juries’ conclusions, in terms of verdicts and damages, have been deeply unsatisfactory and sometimes they have been deeply satisfactory, but in all cases I have been prepared to support the application of the jury to that aspect of the civil jurisdiction.
I have also seen the jury system at work within the criminal jurisdiction as a Crown court recorder. In that capacity, I have directed juries, received questions from them, seen advocates address juries and seen defendants’ attitudes—including their body language and the way in which they give evidence—to juries. Even though I may disagree with the verdicts reached by juries—I do not do so often—I am entirely satisfied that the jury is the right forum to decide the facts and issues of guilt or innocence.
On the point about complexity, I am sure that the hon. and learned Member for Medway (Mr. Marshall-Andrews) will agree that some short trials deal with immensely complicated questions. Alternatively, some very long trials deal with immensely simple factual matrices.
For example, a trial involving self-defence might last only one or two days but the legal issue is very complicated, requiring careful explanation and consideration by the jury. However, I have yet to read a Court of Appeal case in which it was suggested that the jury could not handle the complicated matters involved. Juries provide a bulwark against the state and the democratic contact between the people and the criminal justice system. We throw them away at our peril, and at the public’s peril.
Finally, I have also had contact with the jury system in a third way—as a member of a jury panel. Like my hon. Friend the Member for Enfield, Southgate (Mr. Burrowes), I was summoned to the central criminal court in February or March this year, and had the thrill, which still awaits him, of attending the Old Bailey for five days. I never got on to a case: I was called for selection as a jury member in five or six trials,
but every time my name was pulled out in the ballot I was expelled from the room. It was held that I could not possibly be a fair jury member because I knew either the judge or members of the defence or prosecution teams.
I had hopes of serving on the jury in a trial in which the hon. and learned Member for Medway was one of the defence counsel. However, he could hardly contain his mirth when he saw that I was the shy and diffident member of the public who had been brought forward to assist him and the other advocates to do justice, and I was sent back upstairs. I got to know the Old Bailey’s lift system extremely well but I was never able to try a case, much as I would have liked to.
I fully accept the analysis of jury membership that the hon. and learned Member for Medway gave earlier, but the people in the Old Bailey’s jury waiting room did not consist only of the unemployed, the disabled, or women. The lesson that I learned was that the people waiting to serve came from all areas of the economic, social and ethnic spectrum available for London juries. When people asked not to sit on particular juries, the reasons and excuses that they gave to the judge ranged from difficulties over child care to booked holidays. In my case, problems arose because I knew the judge or members of the defence or prosecution teams.
Everyone had been summoned to be available for jury service for only two weeks, but pretty well every case was expected to last far longer than that. The whole point of the central criminal court is that it tries big and serious criminal cases that very often last for months. It is certainly not uncommon for them to last for more than two weeks, and I am sure that the hon. and learned Member for Medway will confirm that some cases tried there have lasted almost a year. We all know from our constituency experience, or even from simply reading the news, that lengthy drug-dealing cases—my hon. Friend the Member for Woking (Mr. Malins) mentioned one in which he was involved at Isleworth Crown court—and lengthy cases on terrorism, kidnapping, people trafficking and issues such as the Morecambe bay cockle pickers, require juries to listen to evidence and digest complicated legal issues for some little while.
There is absolutely nothing in the Government’s argument, which was put forward with some confusion by the Solicitor-General, that lengthy cases of fraud are unsuitable to be tried by a jury. If there is anything in that argument, it should apply across the board. The argument should apply to cases of murder, kidnapping or drug dealing; it cannot be sold on the basis that it applies only to complex fraud cases. Cases are lengthy for good or bad reasons. If the reason is bad, it is a matter of management and discipline, which involves the judge. Before that, it is a matter for the prosecuting team to distil the important issues for getting its case across to the jury and for the defendants to show discipline and co-operation, by not wasting time making irrelevant and footling points.
Co-operation in the criminal process is essential. It is clear to anyone who has bothered to look at the evidence behind the complaints about the length of trials and the failure in some cases to reach a conclusion that the jury has never been the reason for the collapse, as the inspector of the Crown Prosecution Service, Mr. Stephen Wooler, pointed out in his report, and the Attorney-General
agreed—I think—in his statement to the other place earlier this year. The reason for the collapse has been failure to manage, prepare and co-operate. It is no good the SFO or the CPS handing over the keys to a warehouse of documents and telling the defence team to sort them out; it is the duty of the prosecution to find the documents that are relevant to its case and to explain and disclose them to the defence. The more judges are given, and exercise, powers to discipline loose prosecution and defendants who through their legal teams fail to co-operate, the more cases will run efficiently.
Stephen Hesford: If I have understood the hon. and learned Gentleman correctly, he is saying that the issue is one of case management, so the only difference between what he is saying and what I am saying is that we approach the solution to case management differently.
Mr. Garnier: I am hesitant to reach any accommodation with the hon. Gentleman, because I found what he said almost impenetrable. I am not at all sure that the House will want to reflect too long on the remarks he made in his speech. I had intended to do him the service of not referring to it, but as he has provoked me I shall do so.
The hon. Gentleman advanced an argument based on nothing more than assertion and insult. He insulted his hon. and learned Friend the Member for Medway, who made a cogent case against the Government, yet the hon. Gentleman, having scribbled a few notes on the back of the Bill, allowed us to be impressed by the fact that as he made a less than important point he was comforted by a little nod from the Solicitor-General. But what was particularly worrying, beyond the way in which he presented his argument, was that he thought that the Bill would act as a deterrent against serious fraud and as a measure to produce more guilty pleas. If that is the way in which the Government and their acolytes wish to advance arguments against the jury, we have a lot more to worry about than I originally thought. But I am sure that the House is grateful for what the hon. Gentleman had to say.
Stephen Hesford: Will the hon. and learned Gentleman give way?
Mr. Garnier: No, I will not. The hon. Gentleman has given us the benefit of his views and we are able to judge them.
I agree with the hon. and learned Member for Medway in this. He said that the Bill constituted a serious attack on our civil liberties and that it was unnecessary, unworkable, expensive and unwise. In all of that he was entirely right. He said that, not just from the position of someone who wishes to annoy the Government, but from the position of someone who has even more experience in the criminal courts than my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg), and he was characteristically but none the less modest in drawing to our attention the huge experience that he has in these matters. It is absolutely no good for the Government or their friends to attack him for making arguments based on evidence and long experience—and common sense.
The protocol that Lord Woolf, then Lord Chief Justice, introduced in March 2005 is barely a year old, and yet the Government are saying that it is of no account. The Fraud Act 2006, which completed its passage through Parliament just before we prorogued, has yet to be made use of and yet no doubt was introduced to this Parliament for a purpose. It has simplified the law of fraud and the way in which our courts will be able to look at alleged fraud. And yet the Government are so hyperactive and so addicted to headline legislation that they do not even wait to draw the conclusions of their own legislation before rushing on to pass another piece of legislation—and in the face of arguments that we have heard any number of times and seen defeated both here and in the other place, albeit I accept that the Government are capable of crashing legislation through as a result of their whipping capacity.
Many hon. Members on both sides of the House have spoken against the Bill. Those on the Labour Benches, apart from the hon. and learned Member for Medway, expressed their dissatisfaction with the Bill by means of interventions. Others, on the Opposition side of the House, have had the opportunity to speak, some at length and some at less length, about the issues that concern them.
I can extract some broad themes from the speeches. The first is that the jury system is under attack; and that whether it is under attack in this narrow sense or more broadly, it is none the less the necessary upholder of our civil liberties and the necessary barrier between the state and the citizen, as my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) and others said. It was also said that the jury system is the necessary introducer of the citizen into the criminal justice system and prevents it from being but an esoteric lawyers’ fest; I think it is important that we remember that and that we maintain that important break.
My right hon. and learned Friend the Member for Sleaford and North Hykeham asked three important questions. First, he asked whether it was appropriate for juries to try lengthy and complex serious fraud cases. Not surprisingly he answered that it was, and he used the analogy of drug dealing cases, murder cases and terrorist cases. He went on to ask whether there is a principle that can be established to demonstrate that the Government’s case is right. All the Government can do to come anywhere near that is to produce an argument based on Executive convenience. Indeed, Executive convenience—the convenience of this Government—has been promoted to the level of a principle in itself.
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