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Mr. Marshall-Andrews:
I do not want to be tiresome, as the right hon. and learned Gentleman is making a persuasive point about the need to mitigate a thoroughly bad Bill. He said that he does not want
Ministers to say that Parliament’s acceptance of the argument about length and complexity allows them to apply such conditions more widely, but how would mitigation help to prevent that? The Government have form in such matters, and will use any argument that comes to hand. Would not matters be made worse if they were able to say that the House of Commons had decided that jury trial might be abrogated for reasons of the interests of justice, and not just length and complexity?
Mr. Hogg: No, I do not think so. The Government’s proposals rest exclusively on a trial’s length and complexity—difficulties that arise in many non-fraud cases. Making a concession on those grounds would be to drive a coach and horses though the principle that trials should be held before a jury. The problem that we are wrestling with is that the Bill will make progress: it will leave this House, and go before the House of Lords. Are we therefore in the business of trying to improve a bad Bill, or should we simply assert that it is bad and not try to improve it?
The choice is not an ideal one. The hon. and learned Member for Medway disagrees, but I have concluded that I am in the business of improving a bad Bill. However, I accept that it is perfectly respectable to argue that this is such a bad Bill that we should spit on it, throw it out and have no more to do with it. If we believe that, we might as well not debate the new clauses before us: we should just accept that the Bill is bad, go straight to Third Reading and find ourselves beaten in the vote at the end of that. That is not what I want to do.
I could go on at length, but I shall not do so. The condition in section 43(5) of the 2003 Act is a jolly bad one. We can improve it to make it slightly less objectionable, and I commend that approach to the House.
Mr. Grieve: I am delighted to hear the comments of my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg). Like him, I face a dilemma. The Bill is a bad piece of legislation. I explained that on Second Reading and in Committee. On occasion I have made some attempts to see if there is any way forward to a compromise in respect of how the trial process takes place and whether it can be independent of the judge’s decision. I have not been successful. In this Bill it is particularly difficult. Any attempt, for example, to argue that we should have a special jury has been ruled out of order because on Second Reading we decided to dispense with juries. There is an “all or nothing” quality about the Bill.
I agree with my right hon. and learned Friend that it is important, notwithstanding the distaste with which we view the legislation, to consider the situation if and when the Bill reaches the statute book and seek to mitigate as far as possible its worst effects. In Committee we discussed whether there should be an interests of justice test. Notwithstanding what I heard from the hon. and learned Member for Medway (Mr. Marshall-Andrews), I think that that takes the matter a little further in providing some guidance to the judiciary on how they should approach the matter—not just the question of burdensomeness or length, but also that of the interests of justice—
widening the criteria a little and, I hope, as a result restricting a little more the circumstances in which the court would grant trial by judge alone. I accept that there are difficulties and for that reason I am supportive of new clause 5. My name does not appear at the top of the list of promoters, although I rather thought that I drafted it. It may turn out that somebody else had the same idea.
Mr. Grieve: My right hon. and learned Friend says that he drafted the new clause, in which case I am rather perplexed because his name does not appear at the top of the list either.
Mr. Hogg: I think the Liberal Democrats nicked it. [Laughter.]
Mr. Grieve: All I can say is that when I went to the Table Office to table my amendment I do not remember seeing any amendment in the name of the Liberal Democrats along the lines of new clause 5. In a conciliatory spirit I shall return to the main issue, which is the contents of the new clause.
The key issue will turn on the likely impact of the safety of the verdict. That has a particular merit. To understand it, one must return to the Government’s stated position. The Government have gone out of their way—they have no option but to—to insist that juries are capable of returning true verdicts. If they were to depart from that principle, they would announce their complete lack of confidence in the entirety of the jury trial system. Indeed, we know from the Wooler inquiry into the collapse of the Jubilee line case—one of the very few pieces of evidence that we have about how juries function—and from the supporting research documents that went with it, which I conveniently obtained the day before Second Reading, that in that trial, which meandered on for 18 months before it collapsed, the jury had a very good grasp of the issues in the case. There is every reason to suppose, when one considers the responses that the jury gave to those who investigated the matter, that had they had an opportunity of returning the verdict, no one could suggest from the evidence that the verdict would have been unsafe or unsatisfactory, because after 18 months they had preserved a complete grip on the issues that they were having to consider.
If we were to adopt new clause 5, it would have the merit that it would be rather difficult ever to have a trial without a jury, because it would have to be argued before a judge that there was something about the complexity or length of the trial which made it likely that the safety of the verdict might be impaired. In such circumstances no trial without a jury, on the existing evidence that we have, would ever take place. That is why I commend the new clause.
David Howarth (Cambridge) (LD): The hon. Gentleman makes a good point about one effect of new clause 5. Does he agree that it has a further merit over and above new clause 4, which is that by removing any mention of the burdensomeness of the trial to the jury, it removes from the prosecution an incentive to increase the complexity in order to remove the trial from a jury?
Mr. Grieve: I agree entirely with the hon. Gentleman that that is an important consideration.
We must be realistic about this. In our daily lives most of us have had the opportunity to meet people, not necessarily in a professional context, but neighbours or friends, who have served on juries. Some people find doing two weeks’ jury service, which probably includes four or five days sitting and the rest of the time being sent home, to be burdensome. I would not wish to say that they were being lily-livered. It may well be that the impact on their own lives has been considerable. Equally, I have done long trials lasting many months when it seemed to me that the jurors were deriving considerable enjoyment from the work that they were being called on to do. Friendships are made. Indeed, in some cases marriages have followed. Many, particularly those who may be retired or are not in full employment, have found it an extremely fulfilling and important experience in their lives. That is a reason why we have jury trials. Simply to imply that length leads to burdensomeness seems to be mistaken.
I have retained the issue of complexity. We know that many extremely complex trials that take place will not fall into the category of being capable of being assigned to a judge alone. For example, the Crevice trial which is taking place has lasted many months. We do not know when the verdict will be returned. It is an ordinary criminal case being tried by a jury. It is a matter of great importance involving scientific evidence, and the jury is thought to be capable. My practice included health and safety work. The cases which are contested are often extremely technical in their nature. Jurors arrive in the jury box and are presented with three or four lever arch files to share between two of them, including documents, background material and the business documents of the company concerned and other contractors. During the course of the trial they have to consider expert evidence and sometimes look at models which have been made and brought into the court. All such trials are as complex, or as likely to be as complex, as any fraud trial that I can imagine, and sometimes they last many weeks and months. Yet in those circumstances the Government at the moment—I am mindful of what the hon. and learned Member for Medway says about the risks of the wedge in the door—have not considered suggesting to the House that those trials should be removed from jurors.
Mr. David Winnick (Walsall, North) (Lab): Although I will be giving the Government the benefit of the doubt, which I know is disappointing to the hon. Gentleman, I take seriously his point about the wedge in the door. As I have mentioned to my hon. and learned Friend the Solicitor-General, I am concerned about the possibility that if this goes through, the Government might be encouraged to go further. I have had an assurance from my hon. and learned Friend that that will not be the position, but I am concerned. Is the hon. Gentleman aware that the question of the wedge is not lost on a number of Labour Members?
1.30 pm
Mr. Grieve:
I am pleased to hear the hon. Gentleman’s comments, but sorry that I may not be able to persuade him to join us in the Division Lobby
on Third Reading and elsewhere during the afternoon, because I fear the wedge. Realistically, the measure is a wedge and the hon. Gentleman should remember what happened during proceedings on the Criminal Justice Act 2003, when the Government were considering much bigger wedges that had to be fiercely resisted.
Kelvin Hopkins (Luton, North) (Lab): I am interested in the hon. Gentleman’s arguments, with which I sympathise, like my hon. Friend the Member for Walsall, North (Mr. Winnick). Is the suspicion that the Government have looked for the aspect of law where it might be easiest to argue for the wedge, or are they primarily concerned about fraud? Is the most important thing the wedge or the fraud aspect?
Mr. Grieve: As the hon. Gentleman knows, the Government whom he supports are greatly driven by opinion polls. Indeed, I have come to the conclusion that they frequently take opinion poll soundings. We know a little bit about such soundings, although things may have changed. I once saw an interesting internal document that the Government produced a couple years ago—I am not sure that I should have seen it, but it seemed to land on my desk. It explained some of the Government’s background motivation on the issue of fraud trials. It recognised that support for the principle of jury trial was extremely high. Equally, the Government’s soundings showed that the public were disquieted by occasional examples of fraud trials that cost huge sums, ran for many months and then collapsed. On the back of those findings, the Government seemed to adopt the approach that they should apply their mind to the issue of long and complex fraud trials, because the findings were a justification that juries should be dispensed with in such cases.
That point is germane to the amendment because as I was trying to explain, I find it difficult to follow the intellectual argument, since there are plenty of other examples of long and complex trials. Another important point is that the evidence suggests that long and complex fraud trials that collapse do so for reasons that have nothing whatever to do with juries. That is the evidence that came out of Mr. Wooler’s report on the Jubilee line case, although at first sight, when his findings were splashed all over the papers, a bad impression was created of a trial with a jury that had lasted 18 months and had collapsed. The trial had cost millions of pounds—I cannot even remember the sums involved, but they were colossal—so it appeared to have a somewhat scandalous quality. However, when one reads Mr. Wooler’s report, it turns out that the problems lay with the Crown Prosecution Service’s approach to the matter. There may also have been other factors on which Mr. Wooler was not in a position to comment, but one thing is certain: the collapse had nothing to do with the jury. The supporting documentation went quite the other way and showed clearly that the jury was working well in that case.
Robert Neill (Bromley and Chislehurst) (Con):
Is not my hon. Friend’s point reinforced, and our concerns about the Government’s motivation and the risk of a wedge made even greater, by the fact that in the preface to the report the Attorney-General attempted to fly wholly in the face of the evidence Mr. Wooler had
collected? The Attorney-General attempted to whitewash his position by suggesting that the evidence did not justify Mr. Wooler’s view that the jury was capable of carrying on with the trial, whereas in fact the detailed evidence and the best research on the attitudes of juries demonstrates clearly that my hon. Friend’s position is right. Why did the Attorney-General feel constrained to make such a wildly inaccurate comment—on the face of it—in the preface to the report?
Mr. Grieve: I agree: that point very much troubles me. Furthermore, at the time of the news of the collapse of the Jubilee line case, spin doctors somewhere in Government were hard at work saying that it was a classic illustration of why juries should be got rid of in fraud trials. I certainly do not blame Law Officers for that, but that is what appeared in the newspapers and it came from Government sources. It is apparent that the propaganda machine was well tuned up and that case was seen as a particular opportunity. I cannot help but think that one of the reasons why we have returned to the matter is the stand-off, and the problems, that took place in 2003.
Mr. David Burrowes (Enfield, Southgate) (Con): I concur with my hon. Friend about the importance of maintaining the principle of jury trials. Should not Members on both sides of the House who support that principle support the new clause, too? However imperfectly it may mitigate the breaching of that fundamental principle, it would at least keep the wedge as thin as possible. Those who do not support the new clause, but support the principle, will have to explain why they cannot support a thin wedge. Why are they going along with the fundamentally flawed rationale behind the Bill?
Mr. Grieve: I am grateful to my hon. Friend. I agree. I encourage Members of the House who are concerned about what the Government propose to consider carefully new clause 5, which is the proposal I am talking about. If we succeeded in incorporating it, the Government would probably still have their Bill—unless we can defeat them on Third Reading, which is inherently unlikely—but it would include a protection that would make it unlikely that a trial without a jury could ever be ordered.
Mr. Heath: The hon. Gentleman has covered some of the points that I wanted to make. It is an extraordinarily naïve view to suggest that the measure is not the wedge to which he refers. Even if we were to accept the argument that juries have difficulties with such trials, which is not supported by the evidence, the best argument was put forcibly by his right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg): no argument with any intellectual integrity can distinguish between the circumstances of a complex fraud trial and other long and complex trials. Any argument that the Government use, therefore, to support this measure can equally be applied, and sure as eggs is eggs, will be applied, to other trials in the future, which is why it is so imperative that we defeat it either here or in another place.
Mr. Grieve: I agree. That is what we must all try to do.
I want to bring my remarks to a close. I commend new clause 5. Although the Bill is a bad one, it will be slightly—very marginally—better if it includes the new clause, because it will be much harder for a prosecutor, in making his application, to succeed in persuading any judge who applies himself rationally to the issue that trial without a jury can be ordered. To succeed in showing that complexity and length will have an impact on the safety of the verdict when all available evidence is to the contrary will be a high hurdle, which is precisely what I want to create.
The Solicitor-General (Mr. Mike O'Brien): I shall deal first with the detail of the new clauses before considering the more general arguments made by Opposition Members.
New clauses 4 and 5 would both alter the conditions in subsection 43(5) of the Criminal Justice Act 2003. New clause 5, on which I understand that the hon. Member for North Southwark and Bermondsey (Simon Hughes) wants to divide the House, would require the legislation to be changed so that it no longer referred to the effect of the length and complexity of the trial in terms of the burden imposed on the jury and the interests of justice, but to the effect on the safety of the verdict. To some extent, we have dealt with those arguments because, as I observed in Committee, the Government do not accept that there will be any effect on the safety of the verdict. We think that judges are able to reach verdicts and that they are able to reach verdicts that are safe. Indeed, every day in this country, district judges do that in magistrates courts and nobody complains about that.
The Solicitor-General: Let me deal with this issue. I will then give way.
What I have just said is not the reason why section 43 is needed. It is not part of our case to suggest that juries or judges in such cases bring in verdicts that are unsafe. The presence or absence of the jury will not have an effect on the fairness of the trial itself.
In his closing remarks, the hon. Member for Beaconsfield (Mr. Grieve) seemed to reveal what the new clause is really about. He said that if it were passed, it would be very unlikely that there would ever be a non-jury trial. In other words, it is a wrecking amendment. It seeks to wreck the intention behind the Bill. I therefore inform Opposition Members that the Government will oppose it.
The Solicitor-General: I will certainly give way to the hon. Gentleman, but I have agreed to give way to the hon. Member for Cambridge (David Howarth).
David Howarth:
I thank the Solicitor-General for giving way, but he has got the argument the wrong way round. The new clause is not about the safety of the verdict if there is a judge-only trial; it is about the safety of the verdict if there is a jury trial. The new clause attempts to put into place a rule that says that only if the safety of the verdict would be endangered in a jury trial should a jury trial be excluded. The
Solicitor-General might be right to say that that would fundamentally change how the Bill works, but that is the intention behind the new clause.
The Solicitor-General: The hon. Gentleman is right that that is the intention, but I was trying to deal with both sides of the argument: what if there is a jury, and what if a judge makes the decision? In our view, the safety of the verdicts will be there in any event. We are looking at what the best conditions will be for the judge to decide whether it should be a jury or non-jury trial. We therefore need to look at both sides of the argument and our view is that it will be a safe verdict either way.
Mr. Grieve: If it is a safe verdict either way, why are we passing this Bill? That is the question that needs to be addressed. The new clause is not a wrecking amendment. I reassure the Solicitor-General that it is designed to go to the very heart of the Government’s concerns. In doing so, and if the Government realise that their concerns are misplaced, at this late hour I urge him to tell his colleagues to drop the Bill.
The Solicitor-General: As the hon. Gentleman knows very well, he has misinterpreted what I have just said. We were talking about the safety of the verdict and the verdict would be, no doubt, safe whether it was decided by a jury or a judge. The problem or mischief that we are addressing is how, over a considerable time, the process in serious and complex fraud trials has resulted in the courts and the prosecution, in particular, having to adopt a number of stratagems that have meant that the full culpability of the crime committed by particular individuals has not been exposed in court. That has been done by reducing the number of counts on the indictment so that all the counts that could have been put are not put, by dropping some of the less serious defendants out of the indictment so they never get punished, and by severing indictments so that we get two trials rather than one.
The Solicitor-General: I am dealing with an intervention; I will happily give way in due course.
What I have described means that the full culpability of a particular defendant does not get exposed in a particular trial. It may get exposed in a couple or maybe even three trials on occasions, but the case is not properly set out in a trial before the public and before a particular court. That all happens not because that is the way in which the courts want to do things, but because the requirements of oral presentation of documents and evidence to a jury mean that the process that takes place is lengthy and puts a substantial and undue pressure on certain juries.
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