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The hon. Member for Beaconsfield mentioned the report on the Jubilee line case, so let me refer him to that report because it is important that we look at it. Some of the points that he made were accurate; the jury in the Jubilee line case said that it understood the
evidence. That was not the dispute that we had in Committee. We take the view that juries are certainly capable of understanding the evidence. Our point is that there is a burden on them.
The Solicitor-General: Let me deal with the intervention and then I will give way.
The report on the Jubilee line case gives us evidence of the burden on juries. If the hon. Member for Beaconsfield looks at page 7 and the interviews with jurors in that case, he will see that the report says:
“Some jurors had serious difficulties with their employers, including attempts to dismiss them, and would have liked more concrete help.
There are several quotes from jurors. One said:
“They told me to sign or I would have no job to go back to.”
“He sent me a P45”
“Unco-operative employers could also cause problems over claims for allowances.”
“As a juror it is your responsibility to get the stuff off your work, so if your work is being funny about it, if they don’t want to fill in the form...it’s a bit of a joke.”
There is a whole series of such quotes.
The report goes further on page 13. The hon. Member for Beaconsfield mentioned the report, so let me draw his attention to some of the points on the other side of the argument. The report deals with the jurors’ return to work and says:
“Return to work for seven of the 11 interviewed presented continuing problems nearly five months on. These include one who has been made redundant, one in an employment dispute, one required to undertake extensive re-training who has missed a definite and much desired promotion, and one signed off by his doctor as suffering from stress as a result of the work situation.”
My point is about the burden being imposed on juries as a result of very lengthy and complex fraud trials, and the House should take cognisance of that. Given those points, we need to ensure that we have legislation that allows the full culpability of a defendant in a complex and serious fraud trial to be exposed before the court without placing such undue burdens on jurors.
As the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) said, problems can arise in a range of other lengthy trials. That is certainly the case, but no other area of law or type of criminal case has the history of serious and complex fraud cases. That has been made clear by Roskill and Auld; I do not need to go into the history of this. The House has debated the issues on many occasions.
I can say to my hon. Friend the Member for Walsall, North (Mr. Winnick) that we do not have plans to go further. There is no wedge. This is about a particular area of criminal law that has a long history.
The Solicitor-General: I promised to give way, but I then intend to make progress. I give way first to my hon. Friend the Member for Walsall, North and then I will give way to the right hon. and learned Gentleman.
Mr. Winnick: The Government are having a relatively easy time from Labour Members because we recognise many of the arguments that the Solicitor-General he has put forward. But—and there is a “but”—there is the concern that he has just mentioned that the Bill could lead to what the Opposition call a “wedge”. The argument is that some other cases go on for a long time and when jurors in them return to work, they could face some of the problems that he has just mentioned. I want to make it absolutely clear that I go as far as what is being proposed, but I would be very much opposed—I believe that quite a number of other Labour Members would be too—if further measures were brought in at some stage that would escalate the pace of change. I am very much an upholder of the jury system
The Solicitor-General: I hear what my hon. Friend says. We have been careful in relation to the Bill. We brought forward, as we promised, a stand-alone Bill. In Committee, there were suggestions from the Opposition that we should go further and extend the opportunities for non-jury trials. It was proposed that there should be so-called equality of arms and that the defence should also have the opportunity to ask for a non-jury trial. We took the view that we have indicated to Members such as my hon. Friend, who have said that they want us to go so far but no further, that that is our view, and so we do not propose to go further in the Bill and extend the provisions to the defence. By its nature, that would mean that there would be more non-jury trials, or at least the opportunity for more non-jury trials. We have therefore taken the view that we will not extend the provisions to the defence.
Mr. Marshall-Andrews: On the narrow issue of the Jubilee line case and the inquiry, it needs to be placed on the record that the overwhelming burden of the report was that the case was an aberration, because of the way in which it was presented and run, largely by the prosecution. Of course, that put a burden on the jury. However, it also needs to be on the record that in September of the year before the March in which the case was stopped, and also in February, defence counsel wrote to the Attorney-General and told him in terms that the case was an aberration and was heading for the rocks. I am sorry to say that, in September, the Attorney-General, having looked at that correspondence, did not intervene in the case. Had he done so, many of the problems that people are now canvassing would have been avoided.
The Solicitor-General:
I hear what my hon. and learned Friend says. I have recently written to him to set out in some detail some of the issues in relation to the Jubilee line case, because he has raised that matter with me on previous occasions, and I thank him for doing so. The report makes it clear that it may well not have been appropriate, in any event, for the Jubilee line case to have been a non-jury trial. To some extent, in dealing with the whole issue of the Jubilee line case, there is a certain amount of academic interest, rather
than practical interest, in the sense that the trial probably would not have been suitable under section 43 of the Criminal Justice Act. None the less, the case is of academic interest, and perhaps even practical interest, for this reason: it exposes to some extent some of the issues in relation to burdens on juries and—in terms of the point of view of Opposition Members—the ability of juries to understand cases. Both those issues are exposed in ways that we might not normally get the opportunity to see, because such research is not usually carried out.
The Solicitor-General: I promised to give way to the right hon. and learned Member for Sleaford and North Hykeham.
Mr. Hogg: The Solicitor-General really must address the central issue in the debate, which is whether or not the provisions are a wedge. He has quoted from pages 7 and 13 of the report, on the reaction of the jurors and the damage that the case caused to their employment. Those are points that could be made of and in any long case. He has to tell us where the distinction of principle lies between a fraud case and any other long case.
The Solicitor-General: The distinction is quite clear. There is no other area of criminal law that has had the history that complex and serious fraud cases have had. We have had the Auld report and the Roskill report. There has been legislation. We have had many meetings and discussions about this matter. No other area of the law has been subject to such lengthy debate over decades. The issue has a level of uniqueness that enables us to proceed with it. I can say clearly to the right hon. and learned Gentleman and others who may have concerns that we see this as a unique issue. We do not see it as setting a general precedent. We believe that the Bill deals with a particular, unique problem to which attention has been drawn for a considerable time.
The Solicitor-General: I will give way to the hon. Member for Beaconsfield and then I must make some progress.
Mr. Grieve: My right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) touched on the point that I want to raise. I do not see how the Bill cannot raise general issues of principle. If any trial overruns its estimated time or date—I am afraid that that happens; there are a number of major criminal trials that are nothing to do with fraud that have done so—that will place burdens on the jury. The argument that the Solicitor-General is putting forward could equally well be advanced for those trials. That is why it makes me anxious that that is the point on which the Government seem to have latched. If it is the Government’s position that any burden on jurors is unacceptable because it may be disruptive to their lives, the whole jury system is going to collapse.
The Solicitor-General: The hon. Gentleman is not normally accused of hyperbole, but on this occasion such an accusation can fairly be made. The jury system is not in a position where it is likely to collapse. We have nearly 30,000 jury trials in this country. We estimate that the Bill will affect some half a dozen of them. The idea that the jury system is about to collapse as a result of the Bill is ridiculous. We are dealing with a particular area in which there is a unique and long history of reports of a serious nature that have affected reforms across the criminal justice system. There has been a clear indication that the issue needs to be addressed. Some have felt that we can deal with it by means of procedure, but we have tried that repeatedly and we have found that it does not adequately address the problem. The length of some of the trials has been quite great and the way in which evidence has been dealt with in those trials has raised quite serious questions.
The Solicitor-General: I will give way to the hon. Member for Cambridge and then I really must make progress.
David Howarth: Perhaps I can ask the question slightly differently, and without hyperbole: what difference does it make that the subject matter of the trial was fraud, as opposed to anything else, when it comes to the difficulties that jurors have suffered? If the Solicitor-General cannot explain that to the House, the point made by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) still stands.
The Solicitor-General: Over a long time, we have had a series of reports in relation to the criminal justice system, by serious and eminent lawyers, that have identified serious and complex fraud cases as a particular problem in relation to the way in which evidence needs to be presented orally to a jury. That has produced a series of problems of manageability in those kinds of cases. The issue is the combination of the complex nature of fraud, quite complex areas of law, and quite lengthy documentation—thousands of pages of documents. That means that there can be substantial legal arguments, which means that the jury will be out. We all know the problems that have arisen in serious and complex fraud cases and we all know that they have not arisen in the same way in many other cases. The Government see such cases as a unique issue, which has a long history that other areas of law do not have. We can say with absolutely firmness that there is no wedge. I cannot put it more clearly than that.
I have to make some progress and deal with new clause 4. I think that the hon. Member for North Southwark and Bermondsey is going to have some problems with new clause 4. It would make another change to the condition in section 43(5) of the Criminal Justice Act. The present subsection states that the judge has to be satisfied that the trial is likely to be so burdensome to a jury that
“the interests of justice require that serious consideration”
be given to conducting it without a jury. At first sight, one might be tempted to ask whether it would not be logical to say, as the new clause does,
“so burdensome.. that the interests of justice required that the trial should be conducted without a jury.”
The purpose of the condition, however, is not to state the consequence of a finding that the trial is likely to impose a heavy burden, but merely to define the degree of burdensomeness that must be present before use of the power is considered. If the judge finds that a trial is likely to be burdensome to the required degree, it does not follow that he must make an order under section 43 of the Criminal Justice Act 2003. There may be other considerations that prompt him not to do so.
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Let me give an example: under section 43(5), defendants are entitled to make representations, and those representations need not be confined to the likely length or complexity of the trial, or the burden it would impose on the jury. A judge might be satisfied that the trial would be burdensome, but might nevertheless find the defendant’s representations so persuasive that he decides against making a section 43 order. That is not a problem under the current subsection (5), but the formula in new clause 4, tabled by the hon. Member for North Southwark and Bermondsey, unhelpfully suggests that in such circumstances the interests of justice would require a juryless trial to be ordered. The new clause that he proposes would therefore pose a serious problem, as it would prejudice the rights of defendants and would invalidate their representations.
The other reason why new clause 4 would not be appropriate is that the ultimate decision on whether a juryless trial should be held does not rest solely with the judge hearing the application. The approval of the Lord Chief Justice is also required, under subsection (4). The “serious consideration” referred to in section 43(5) relates not only to the trial judge’s consideration in light of representations from both parties—defence and prosecution—but to consideration by a more senior judge of whether a juryless trial is desirable and practicable in all the circumstances. On that basis, I think that the hon. Gentleman is entirely wrong on both new clauses, and I invite hon. Members to reject them.
Simon Hughes: This debate has been more interesting than I anticipated it would be. We have heard about three different types of argument—my hon. Friends have counted them—for why we should move in the direction proposed by the Government.
I shall concentrate on new clause 5. The fundamental flaw now revealed in the Government’s argument—it has been cited by Liberal Democrat Members—is that they are praying in aid an argument that could apply to any long trial. I should like to discuss the evidence in the Jubilee line case. To those who read our proceedings later, I commend the full, officially commissioned report, “Report on Interviews with Jurors in the Jubilee Line Case”, by Professor Sally Lloyd-Bostock of Birmingham university. A section entitled “Effects on employment and careers”, from which the Solicitor-General took examples and read excerpts, does indeed say that a long trial could impact adversely on the individuals concerned, but it goes on to address, in greater detail, the issue of fraud trials and the type of trials that we are discussing.
The only substantive addition that I want to make to the debate is to put on record what the report said on that subject, because this debate is not about long trials, but about fraud trials, and uniquely and unusually, we have clear evidence on fraud trials. A section headed “Portrayal in the media” said:
“Jurors felt unfairly portrayed as the cause of the collapse of the trial. They particularly objected to the portrayal of them in the press as unable to understand evidence or remember evidence and reach a fair verdict. Some were not particularly concerned, but others were very upset.”
Then there is a quote from someone:
“I was just so angry—to blame us when it was not managed properly, it was a farce.”
There is a whole section dealing with jurors’ responses to cases such as the Jubilee line case. Bearing in mind that that was one of the longest trials ever and that it was later aborted, it is interesting that under the heading, “The jurors’ attitude to their jury service at the start of the trial and as it progressed”, the report says:
“All but one juror still definitely support the principle of jury service. There was considerable concern...expressed about the removal of the right to jury trial, including for long trials.”
That is the jurors, and not the politicians, speaking. The report quotes a juror:
“on any trial, [trial by jury] is a fundamental right of any British person. If you start bringing in judges, or financial wizards or whatever you are not being judged by your peers.”
The professor’s report goes on to say, in a section called “The jury’s understanding of the case—overview”, that
“There are obvious limitations to assessing the extent to which the jury in fact understood the evidence and the issues in the case on the basis of the interviews. Because a juror says he or she understands, we cannot be sure he or she really did. Moreover, the jurors were interviewed almost five months after the...trial...Within those limitations, it did appear that when the case collapsed this jury, taken as a group, had a good understanding of the case, the issues and the evidence so far, as presented to them... The interviews show the importance of considering the jury as a whole.”
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