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Mr. James Clappison (Hertsmere) (Con):
I hear what the hon. Gentleman says about the way that his colleagues from England, Wales and Scotland intend to vote. However, given that this measure touches on the constitutional position and the liberties of English men
and women, does he not feel that it would be a somewhat unhappy outcome if it were carried on the back of votes from Scottish Members?
Mr. Deputy Speaker: Order. I sensed that the hon. Gentleman was about to conclude his remarks on this point. I do not think that we want a debate on devolution and its side effects. Perhaps we could deal with the new clause before the House.
Simon Hughes: I am very happy to have that debate on appropriate occasions, Mr. Deputy Speaker, and there will doubtless be many. The important point is that although this measure relates to courts in England and Wales, people from all over the world—not just all over the UK—appear before those courts, and we want jury trial for those who appear before them on serious charges, including serious fraud charges. So our position is absolutely clear. This is about the safeguards that we put in place and what conditions will be satisfied if, against our will and our votes in both Houses, such a proposal were to pass through Parliament.
New clause 4 would insert the following alternative wording:
“The condition is the complexity of the trial or the length of the trial (or both) would be likely to make the trial so burdensome to the members of a jury hearing the trial that the interests of justice required that the trial should be conducted without a jury.”
“serious consideration should be given to the question of whether the trial should be conducted without a jury”.
We say that the test needs to be firmer than that, and as new clause 4 states, the law should state that the
“interests of justice required that the trial should be conducted without a jury.”
The burden of making the case must fall on the Government. They are seeking to persuade us that there will be circumstances in which the interests of justice require that a trial be conducted without a jury, but so far we have not heard a strong argument from them in that regard.
If I may, Mr. Deputy Speaker, I will reserve until we move on to the next group of amendments, because it will be more appropriate then, discussion of the strong evidence that makes it clear that all that we know about jurors serving on serious fraud trials supports the argument that they do understand the complexities of such cases and want to continue to do that job. There is no evidence to suggest that jurors find such trials a problem. If that is indeed so—if there is not an interests of justice case that one can argue from the point of view of the juror—only one of two counter-arguments can be advanced.
The Minister and the Solicitor-General have advanced one of them in previous debates, but they have not advanced the second, which I will explain in due course. The first argument, to repeat phrases used by the Solicitor-General and others, is that the full culpability of the case—in other words, the full range of the offence—would be better available to the courts in trials without a jury. The Solicitor-General will make his own speech in his own way, but the argument
throughout the debate has been that one flaw of the present system is that one has to cut down a case, as it were, to put it to the jury, because it would otherwise become too long and complex—in other words, too risky in terms of the jury’s comprehension. As a result, not all the defendants who might be charged in a given case are charged, or not all the charges that might be put on the indictment are put.
Interestingly, the only jury who have recently spoken on this issue did not say that the prosecution had confused them, although they did point out that the defence was sometimes not as clear as it might have been. Our view is that, in the interests of justice, we should always make sure that everybody who should be charged is charged, but the interests of justice are not necessarily served by having 24 or 48 counts on an indictment if six will do. The House will be aware that because the maximum sentence for one count is the same as for another, similar count, a court’s ability to punish someone with imprisonment—actual and immediate, or suspended—or a fine, for example, is not changed simply by the addition of counts. Of course, if there were 10 counts, for example, a judge could say that they must be served consecutively, but 12 or 24 counts are not needed to achieve the justice that a smaller number of counts can achieve.
Mr. Hogg: May I reinforce the point that the hon. Gentleman is making? If one puts 21 counts on the indictment, one then has to adduce evidence as to those 21 counts. That is likely to be extremely confusing for a jury, who will face an inordinate and quite unnecessary amount of evidence.
Simon Hughes: That is absolutely right, and the principle applies to the whole tribunal and courts system. The other day, a constituent came to me to discuss a parent’s allegation of discrimination in a school against their child. In the end, the case brought was based on a specimen count—that on a particular day, the child was treated in a particular way. Bluntly, if the case were won on that basis, the same argument could apply in respect of the preceding and subsequent days and months, because the same treatment occurred then. So it is absolutely in the interests of justice that we do not have extra and unnecessary counts.
Of course, if there are different types of offences, one puts them on the charge sheet and into the indictment. Or if there was a pattern of behaviour five years ago, then a break, and another pattern a year ago, that might be reflected in the charges. However, the criminal justice system has never sought to put everything before a jury. Indeed, many cases would be much slower and more confusing and the chances of successful conviction would be smaller. If someone is convicted, they have the opportunity to ask for other offences to be taken into consideration so that they are not left on the file.
Mr. Robert Marshall-Andrews (Medway) (Lab):
I have listened with great interest to what the hon. Gentleman has said, and his speech could—with some reservations—have been made just as easily by the Solicitor-General. That is one of the reasons why I wish to ask him this question. I will not support his new clause, although it is not so bad that I will support
the Government, because if he takes the view—as I do—that in serious cases with serious implications it is never in the interests of justice in our adversarial system for them to be tried without a jury, how can it be right to table a new clause that by implication, as he has been arguing, suggests that on occasion it can be in the interests of justice for such cases to be heard without a jury?
Simon Hughes: Let me make it clear that we do not believe that the move from jury trial to non-jury trial is in the interests of justice. All we have sought to do is to improve the Bill for fear that we will lose the battle on it. We are fighting on two fronts. We will vote against Third Reading and we will seek to defeat the Bill in the House of Lords, which I suspect we will do because the combined numbers of my party, the Conservative party, Labour peers who oppose the Bill and Cross Benchers will, happily, be enough to do so. The Government will then have the option of revisiting the issue. However, if the Government eventually win the day—in theory, by using the Parliament Acts—we seek to protect people from the excesses of injustice that we see in the Bill. We have a principled position and a fall-back, compromise position—
Mr. Hogg: An unprincipled position.
Simon Hughes: Well, shall we say that it is a less principled position? I would understand it if the hon. and learned Member for Medway (Mr. Marshall-Andrews) does not agree with our less principled and more compromised position.
Mr. David Heath (Somerton and Frome) (LD): My hon. Friend knows that I agree with him on this issue, but is not there another important distinction to be made in the context of this new clause? By introducing the phrase “in the interests of justice”, we move away from the position that the Solicitor-General approached in Committee—without quite reaching it, although he came perilously close—of saying that one of his prime objectives was conviction, not justice. If it comes to a choice between the interests of justice and of conviction, I know where my sympathies lie and, I suspect, those of the hon. and learned Member for Medway (Mr. Marshall-Andrews).
Simon Hughes: I hope that my hon. Friend has drawn the hon. and learned Member for Medway back towards us with that intervention. It was a serious concern to my hon. Friend and me in Committee that the Solicitor-General, whom we like and respect, veered towards saying that his proposal would increase conviction rates. We could certainly quote phrases back at him. However, a conviction—a finding of guilt—does not necessarily mean a just result. There are still too many people unjustly convicted by our system.
I looked back through the annual reports of the Serious Fraud Office, which has existed since 1998 principally to deal with such cases, and one of the arguments that it has never used—I stand to be corrected—is that non-jury trials should be introduced because they would increase conviction rates. The SFO makes many arguments in its annual reports on how to
improve the process, how more cases could be brought to court and how conviction rates could be improved, but they are not to do with the difference between jury trials and non-jury trials.
One instance in which the interests of justice might be better served by a non-jury trial than a jury trial might be if such publicity had been given to a case or the defendants—we have had some examples recently, although not in serious fraud cases. Before any charges have been laid, people have appeared in the press and on the radio and television as the likely defendants. One could argue that the interests of justice would dictate that the members of a jury would not be able to disregard what they had heard, read or seen to enable them to reach a correct judgment. My experience of the courts is that in every case where that is an issue—perhaps there has been widespread national or regional publicity—the judge has gone out of his or her way to make it clear that the members of the jury have to put what they have heard or read about the case out their minds. My understanding is that they appreciate the need to do that. So I dismiss the argument that non-jury trials are necessary in such cases.
Mr. Hogg: May I suggest another class of case to which it might apply? It clearly exercised the mind of the coroner in the application to hear the inquest into the death of Princess Diana before a jury that the case was likely to include evidence from many people who, because they were foreign, would need interpreters. That might be difficult for a jury to handle.
Simon Hughes: Yes, that is a possible example. We need to be honest if we think that cases could fall into that category, and share what we think about them. I had not thought about that example, but it could be included. Indeed, serious fraud is one of the offences that often has international aspects, such as carousel fraud, and might therefore involve defendants who are non-British or do not have English as their first language.
New clause 5 would insert a second, separate, protection into the Bill. It is subject to the same criticism as the right hon. and learned Gentleman made a moment ago in that it is not a substitute for a jury trial. However, it would add to the Bill a further test that serious consideration should be given to conducting the trial without a jury if the interests of justice require it
“by reason of the complexity or length of the trial, or both, and their likely impact on the safety of the verdict”.
It is possible that a verdict might be thought to be less safe because of the mental or emotional state of the defendant or some of the witnesses or where the recollection was of events that happened a very long time ago. I am thinking of cases of which I or others have had experience.
Usually, the safety of the verdict consideration is adequately answered by the judge’s regular admonition to the members of the jury that they cannot convict until they are sure beyond any reasonable doubt. That is a high barrier. It is a hurdle that the English legal system has insisted on so that people are not convicted if there is a serious or reasonable doubt. I do not claim that there are many such cases, but the burden should lie on the Solicitor-General or other Ministers to
explain why cases need to be taken away from juries and given to individual judges in the interests of justice. The Solicitor-General gave one example to do with the fullness of the evil of the activity, and we may hear that again in a moment, but if he wants to add further examples, the burden of explaining his reasoning lies with him.
The essence of yesterday’s debate on foreign policy and defence in respect of Iraq was about how we establish the rule of law and democracy in other countries, and about our obligation to those countries in which Britain has had an interest historically. There was no vote at the end to decide the law of the land. Although this debate does not have the same parliamentary magnitude, we believe that juries should continue to be used in as many cases that come before the higher courts as possible, for three fundamental reasons.
First, the system has worked very well historically. Secondly, it has the confidence of the public, as people trust lay magistrates and juries far more than they do professional lawyers and judges. Thirdly, there is no evidence that a two-tier justice system would not be regarded as one that did not give equal justice to everyone. Courts convict people and send them to prison, so they must be able to be relied on to reach the proper verdict for every defendant.
We spend many days in the House talking about victims and about how we can make sure that the guilty are convicted more securely and effectively, but we must also make sure that our system has the confidence of the public and is fair to defendants. Our new clauses are designed to improve the Bill, although I hope that it does not become law. If we have to have a Bill like this, it needs to be made tougher, and that is what these new clauses aim to do.
Mr. Hogg: I rise to support what the hon. Member for North Southwark and Bermondsey (Simon Hughes) has said, and to speak more specifically to new clause 5. Like the hon. Gentleman, and like my hon. Friend the Member for Beaconsfield (Mr. Grieve) on the Opposition Front Bench, I am very much against this Bill. On the other hand, it will be carried through this House, and possibly through the House of Lords, although that may be unlikely. Our business, therefore, is to try and improve the Bill, even though we do not want it to make progress. It is in that spirit that I shall make my remarks.
The Criminal Justice Act 2003 stipulates that the consideration that applies when determining whether a trial should be heard without a jury is whether its complexity and length would be burdensome to a jury, but the length and complexity of fraud cases are not peculiar to them. Cases involving terrorism and conspiracies, for example, or ones with many people accused of drugs offences, are also long and complex. We are setting a dangerous precedent if we accept that it is only length or complexity that justifies a non-jury trial, because that is to create an argument—irresistible in logic—that the same conditions should be applied to non-fraud cases.
I can foresee Ministers saying, “Parliament has decided that this is appropriate in fraud cases, so why
should we not apply that precedent to other cases?” The Government have a track record of doing that, and they have tried many times to dilute the classes of case in respect of which a jury is required to be empanelled. I refuse to grant Ministers that precedent, because I object fundamentally to these proposals.
I propose, however, to adopt an approach that earlier I characterised rather kindly as the less principled one. Given that the Bill is going to progress through this House, surely we are obliged to try and improve it. Is it possible that there might be occasions when the interests of justice might require a non-jury trial? I find that difficult to contemplate, for the sort of reasons that the hon. and learned Member for Medway (Mr. Marshall-Andrews) always advances so eloquently, but I do not exclude the possibility.
Certainly, I can contemplate a test that is much more satisfactory than the one proposed by the Solicitor-General. Two options are presented in the new clauses—the Liberal Democrat version in new clause 4, and the version in new clause 5 that is supported by hon. Members from both main Opposition parties.
1.15 pm
The test that we propose would determine whether the interests of justice might require a non-jury trial. As I said, I can conceive of circumstances when that might be so. For example, I noted earlier—and the hon. Member for North Southwark and Bermondsey acknowledged my point—that the coroner in the Princess Diana inquest held that it was right to for that inquest not to have a jury. I am not in any sense questioning the merits of that decision, but I believe that she came to that conclusion because the fact that a lot of evidence would come from abroad, either through interpreters or in translation, could cause difficulties for a jury.
I can see that juries might find it difficult fully to handle evidence in deeply complicated cases that comes from abroad. To put it differently, it is possible that a defendant might apply for non-jury trial for those reasons, and I emphasise that I support a defendant’s right to make such an application.
If defendants are allowed to apply for non-jury trial, they may decide to do so for reasons of cost. That means that another class of case will become increasingly common. With more defendants funding their own defence, they might well think that their trial would be abbreviated if no jury were involved—clearly an attractive proposition. Moreover, even when a defendant is not providing the funding, long trials can be enormously costly, and that would be another reason to opt for the possible brevity of a non-jury trial.
For those reasons, I do not want to exclude the possibility that there are a few classes of case in which a non-jury trial could be authorised, especially when the defendant make that application. However, I do not think that that should happen on grounds of complexity or length—simpliciter.
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