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‘In section 43(2) of the Criminal Justice Act 2003 (c. 44), after “prosecution”, insert “, the defendant, or any of the defendants in cases where there is more than one defendant,”’. — [Mr. Hogg.]
Brought up, and read the First time.
Motion made, and Question put, That the clause be read a Second time:—
The House divided: Ayes 166, Noes 282.
AYES
Ainsworth, Mr. Peter
Alexander, Danny
Amess, Mr. David
Arbuthnot, rh Mr. James
Atkinson, Mr. Peter
Bacon, Mr. Richard
Baldry, Tony
Barker, Gregory
Baron, Mr. John
Barrett, John
Beith, rh Mr. Alan
Binley, Mr. Brian
Bone, Mr. Peter
Bottomley, Peter
Brake, Tom
Breed, Mr. Colin
Brokenshire, James
Brooke, Annette
Browne, Mr. Jeremy
Bruce, rh Malcolm
Burns, Mr. Simon
Burstow, Mr. Paul
Burt, Alistair
Burt, Lorely
Butterfill, Sir John
Cable, Dr. Vincent
Campbell, rh Sir Menzies
Carmichael, Mr. Alistair
Carswell, Mr. Douglas
Clappison, Mr. James
Clark, Greg
Clegg, Mr. Nick
Conway, Derek
Curry, rh Mr. David
Davey, Mr. Edward
Davies, Mr. Dai
Davies, David T.C. (Monmouth)
Davies, Mr. Quentin
Davis, rh David (Haltemprice and Howden)
Dorrell, rh Mr. Stephen
Dorries, Mrs. Nadine
Duddridge, James
Duncan, Alan
Evans, Mr. Nigel
Evennett, Mr. David
Fabricant, Michael
Farron, Tim
Featherstone, Lynne
Field, Mr. Mark
Foster, Mr. Don
Fraser, Mr. Christopher
Garnier, Mr. Edward
Gauke, Mr. David
George, Andrew
Gibb, Mr. Nick
Gillan, Mrs. Cheryl
Goldsworthy, Julia
Goodman, Mr. Paul
Gray, Mr. James
Grayling, Chris
Green, Damian
Grieve, Mr. Dominic
Gummer, rh Mr. John
Hammond, Mr. Philip
Hammond, Stephen
Hands, Mr. Greg
Harris, Dr. Evan
Heath, Mr. David
Heathcoat-Amory, rh Mr. David
Hemming, John
Hoban, Mr. Mark
Hogg, rh Mr. Douglas
Hollobone, Mr. Philip
Holmes, Paul
Horam, Mr. John
Horwood, Martin
Howarth, David
Howarth, Mr. Gerald
Hughes, Simon
Huhne, Chris
Hunt, Mr. Jeremy
Hunter, Mark
Jack, rh Mr. Michael
Jackson, Mr. Stewart
Johnson, Mr. Boris
Keetch, Mr. Paul
Key, Robert
Knight, rh Mr. Greg
Kramer, Susan
Lamb, Norman
Lancaster, Mr. Mark
Laws, Mr. David
Leech, Mr. John
Leigh, Mr. Edward
Letwin, rh Mr. Oliver
Lewis, Dr. Julian
Liddell-Grainger, Mr. Ian
Lilley, rh Mr. Peter
Llwyd, Mr. Elfyn
Luff, Peter
Mackay, rh Mr. Andrew
Malins, Mr. Humfrey
May, rh Mrs. Theresa
McIntosh, Miss Anne
McLoughlin, rh Mr. Patrick
Mercer, Patrick
Miller, Mrs. Maria
Milton, Anne
Moore, Mr. Michael
Mulholland, Greg
Murrison, Dr. Andrew
Neill, Robert
O'Brien, Mr. Stephen
Öpik, Lembit
Ottaway, Richard
Pelling, Mr. Andrew
Penrose, John
Prisk, Mr. Mark
Pritchard, Mark
Randall, Mr. John
Redwood, rh Mr. John
Reid, Mr. Alan
Rennie, Willie
Robathan, Mr. Andrew
Robertson, Hugh
Robertson, Mr. Laurence
Rogerson, Mr. Dan
Rowen, Paul
Russell, Bob
Sanders, Mr. Adrian
Scott, Mr. Lee
Shepherd, Mr. Richard
Simpson, Mr. Keith
Smith, Sir Robert
Soames, Mr. Nicholas
Spelman, Mrs. Caroline
Spicer, Sir Michael
Spink, Bob
Steen, Mr. Anthony
Streeter, Mr. Gary
Stuart, Mr. Graham
Stunell, Andrew
Swinson, Jo
Swire, Mr. Hugo
Syms, Mr. Robert
Taylor, Mr. Ian
Taylor, Matthew
Teather, Sarah
Thurso, John
Viggers, Peter
Villiers, Mrs. Theresa
Walker, Mr. Charles
Walter, Mr. Robert
Waterson, Mr. Nigel
Webb, Steve
Whittingdale, Mr. John
Williams, Mark
Williams, Mr. Roger
Williams, Stephen
Willis, Mr. Phil
Willott, Jenny
Wilshire, Mr. David
Winterton, Sir Nicholas
Wright, Jeremy
Young, rh Sir George
Younger-Ross, Richard
Tellers for the Ayes:
Mr. Robert Goodwill and
Mr. Crispin Blunt
NOES
Abbott, Ms Diane
Ainger, Nick
Ainsworth, rh Mr. Bob
Alexander, rh Mr. Douglas
Allen, Mr. Graham
Anderson, Mr. David
Anderson, Janet
Armstrong, rh Hilary
Atkins, Charlotte
Austin, Mr. Ian
Austin, John
Bailey, Mr. Adrian
Baird, Vera
Banks, Gordon
Barlow, Ms Celia
Barron, rh Mr. Kevin
Battle, rh John
Bayley, Hugh
Bell, Sir Stuart
Benn, rh Hilary
Benton, Mr. Joe
Berry, Roger
Betts, Mr. Clive
Blackman, Liz
Blackman-Woods, Dr. Roberta
Blears, rh Hazel
Blizzard, Mr. Bob
Borrow, Mr. David S.
Bradshaw, Mr. Ben
Brennan, Kevin
Brown, Lyn
Brown, rh Mr. Nicholas
Brown, Mr. Russell
Browne, rh Des
Bryant, Chris
Buck, Ms Karen
Burden, Richard
Burnham, Andy
Butler, Ms Dawn
Byers, rh Mr. Stephen
Byrne, Mr. Liam
Cairns, David
Campbell, Mr. Alan
Campbell, Mr. Ronnie
Caton, Mr. Martin
Cawsey, Mr. Ian
Challen, Colin
Chapman, Ben
Clark, Ms Katy
Clark, Paul
Clarke, rh Mr. Charles
Clarke, rh Mr. Tom
Clelland, Mr. David
Coaker, Mr. Vernon
Coffey, Ann
Cohen, Harry
Connarty, Michael
Cooper, Rosie
Cooper, Yvette
Cousins, Jim
Creagh, Mary
Cruddas, Jon
Cryer, Mrs. Ann
Cummings, John
Cunningham, Mr. Jim
Cunningham, Tony
Curtis-Thomas, Mrs. Claire
David, Mr. Wayne
Davidson, Mr. Ian
Dean, Mrs. Janet
Devine, Mr. Jim
Dhanda, Mr. Parmjit
Dismore, Mr. Andrew
Dobbin, Jim
Dobson, rh Frank
Donohoe, Mr. Brian H.
Doran, Mr. Frank
Dowd, Jim
Drew, Mr. David
Eagle, Angela
Eagle, Maria
Efford, Clive
Ellman, Mrs. Louise
Engel, Natascha
Ennis, Jeff
Farrelly, Paul
Fitzpatrick, Jim
Flello, Mr. Robert
Flint, Caroline
Follett, Barbara
Foster, Mr. Michael (Worcester)
Foster, Michael Jabez (Hastings and Rye)
Francis, Dr. Hywel
Gapes, Mike
Gardiner, Barry
George, rh Mr. Bruce
Gerrard, Mr. Neil
Gibson, Dr. Ian
Gilroy, Linda
Goggins, Paul
Goodman, Helen
Griffith, Nia
Grogan, Mr. John
Gwynne, Andrew
Hall, Mr. Mike
Hall, Patrick
Hamilton, Mr. David
Hanson, Mr. David
Harman, rh Ms Harriet
Harris, Mr. Tom
Havard, Mr. Dai
Healey, John
Henderson, Mr. Doug
Hendrick, Mr. Mark
Hepburn, Mr. Stephen
Heppell, Mr. John
Heyes, David
Hill, rh Keith
Hodgson, Mrs. Sharon
Hood, Mr. Jimmy
Hoon, rh Mr. Geoffrey
Hope, Phil
Howarth, rh Mr. George
Howells, Dr. Kim
Hoyle, Mr. Lindsay
Hughes, rh Beverley
Hutton, rh Mr. John
Iddon, Dr. Brian
Illsley, Mr. Eric
Ingram, rh Mr. Adam
Irranca-Davies, Huw
Jackson, Glenda
James, Mrs. Siân C.
Jenkins, Mr. Brian
Johnson, rh Alan
Johnson, Ms Diana R.
Jones, Helen
Jones, Mr. Kevan
Jones, Mr. Martyn
Jowell, rh Tessa
Joyce, Mr. Eric
Kaufman, rh Sir Gerald
Keeble, Ms Sally
Keen, Alan
Keen, Ann
Kemp, Mr. Fraser
Kennedy, rh Jane
Khabra, Mr. Piara S.
Khan, Mr. Sadiq
Kidney, Mr. David
Kilfoyle, Mr. Peter
Knight, Jim
Kumar, Dr. Ashok
Ladyman, Dr. Stephen
Lammy, Mr. David
Laxton, Mr. Bob
Lazarowicz, Mark
Lepper, David
Levitt, Tom
Lewis, Mr. Ivan
Linton, Martin
Lloyd, Tony
Mackinlay, Andrew
MacShane, rh Mr. Denis
Mactaggart, Fiona
Mallaber, Judy
Mann, John
Marris, Rob
Martlew, Mr. Eric
McAvoy, rh Mr. Thomas
McCabe, Steve
McCarthy, Kerry
McCarthy-Fry, Sarah
McCartney, rh Mr. Ian
McDonagh, Siobhain
McFadden, Mr. Pat
McFall, rh John
McGovern, Mr. Jim
McGuire, Mrs. Anne
McIsaac, Shona
McKechin, Ann
McKenna, Rosemary
McNulty, Mr. Tony
Meacher, rh Mr. Michael
Meale, Mr. Alan
Merron, Gillian
Michael, rh Alun
Milburn, rh Mr. Alan
Miliband, Edward
Miller, Andrew
Moffat, Anne
Moffatt, Laura
Mole, Chris
Moon, Mrs. Madeleine
Moran, Margaret
Morgan, Julie
Mountford, Kali
Mullin, Mr. Chris
Munn, Meg
Murphy, Mr. Jim
Murphy, rh Mr. Paul
Naysmith, Dr. Doug
Norris, Dan
O'Brien, Mr. Mike
O'Hara, Mr. Edward
Olner, Mr. Bill
Osborne, Sandra
Owen, Albert
Palmer, Dr. Nick
Pearson, Ian
Plaskitt, Mr. James
Pope, Mr. Greg
Pound, Stephen
Prentice, Bridget
Prentice, Mr. Gordon
Prescott, rh Mr. John
Primarolo, rh Dawn
Prosser, Gwyn
Purchase, Mr. Ken
Purnell, James
Rammell, Bill
Raynsford, rh Mr. Nick
Reed, Mr. Andy
Reed, Mr. Jamie
Reid, rh John
Riordan, Mrs. Linda
Robertson, John
Robinson, Mr. Geoffrey
Rooney, Mr. Terry
Roy, Mr. Frank
Ruane, Chris
Ruddock, Joan
Russell, Christine
Ryan, Joan
Seabeck, Alison
Sheridan, Jim
Simon, Mr. Siôn
Singh, Mr. Marsha
Skinner, Mr. Dennis
Slaughter, Mr. Andrew
Smith, rh Mr. Andrew
Smith, Ms Angela C. (Sheffield, Hillsborough)
Smith, Angela E. (Basildon)
Smith, Geraldine
Smith, rh Jacqui
Smith, John
Snelgrove, Anne
Soulsby, Sir Peter
Southworth, Helen
Spellar, rh Mr. John
Starkey, Dr. Phyllis
Stoate, Dr. Howard
Strang, rh Dr. Gavin
Stringer, Graham
Stuart, Ms Gisela
Sutcliffe, Mr. Gerry
Tami, Mark
Taylor, Ms Dari
Taylor, David
Thomas, Mr. Gareth
Timms, rh Mr. Stephen
Todd, Mr. Mark
Touhig, rh Mr. Don
Trickett, Jon
Truswell, Mr. Paul
Turner, Dr. Desmond
Turner, Mr. Neil
Twigg, Derek
Waltho, Lynda
Watson, Mr. Tom
Watts, Mr. Dave
Wicks, Malcolm
Williams, Mrs. Betty
Wills, Mr. Michael
Winnick, Mr. David
Winterton, rh Ms Rosie
Woodward, Mr. Shaun
Woolas, Mr. Phil
Wright, David
Wright, Mr. Iain
Wright, Dr. Tony
Wyatt, Derek
Tellers for the Noes:
Jonathan Shaw and
Claire Ward
Question accordingly negatived.
‘(1) Section 43 of the Criminal Justice Act 2003 (c. 44) is amended as follows.
(2) In the headnote at the end insert “but with a panel of experts”.
(3) In subsection (2) after “jury”, insert “but with a panel of experts”.
(4) In subsection (3) after “jury”, insert “but with a panel of experts”.
(5) In subsection (5) at end insert “but with a panel of experts”.
“43A Expert Panel for Fraud Cases
(1) The Lord Chief Justice shall nominate eight experts drawn from—
(a) The Royal Institute of Chartered Accountants,
(b) The Society of Actuaries, or
(c) other persons prescribed by regulations made by the Lord Chancellor
to determine the facts of fraud cases conducted without a jury by virtue of section 43 of this Act.
(2) The judge shall retire with the experts to assist them but shall not determine any question of fact.”.’.— [Mr. Grieve.]
Brought up, and read the First time.
Mr. Grieve: I beg to move, That the clause be read a Second time.
Mr. Deputy Speaker (Sir Alan Haselhurst): With this it will be convenient to discuss the following: Government amendments Nos. 1 and 2.
Amendment No. 15, in clause 2, page 1, line 16, at end insert
‘or a judge of the Crown Court who shall have been designated by the Lord Chief Justice or by a judge nominated by him to try the case.’.
Government amendments Nos. 3 to 6.
Mr. Grieve:
This is my last attempt in what has been a long process to tempt the Government to take an
alternative course of action in the Bill. New clause 15 is drafted simply, and it provides a mechanism so that the prosecution can apply for trials to take place without a jury. The Solicitor-General will know that since the matter first arose in 2003 I have suggested that the Government consider the alternative of special juries if they are worried that the burden would be too great for people summoned off the street to serve on a jury panel, and if they fear that those jurors would not be able to cope with a lengthy trial.
3.45 pm
I suggested that a panel might be set up, drawn from organisations such as the Institute of Chartered Accountants, the Society of Actuaries and other persons who clearly had a knowledge of financial documents. The panel could be called upon to form special juries when they were necessary in long and complex fraud cases. The scheme would have the added advantage that those who served on such a panel might well have taken early retirement, would have the sagacity, wisdom and time to do the work, and would be willing to do it. The task would be a public service that offered them fulfilment and interest. I never succeeded in selling the idea to the Attorney-General or the Solicitor-General, which I regret.
The problem that I face with the Bill as it stands is that the title states in rather redolent terms and, I am sure, quite deliberately, “Fraud (Trials without a Jury) Bill”, with the consequence that any attempt to introduce in the Bill a special jury is immediately met with the argument that it is out of order because on Second Reading we decided not to have juries.
Keith Vaz: The hon. Gentleman spoke of selling his idea to the Attorney-General and the Solicitor-General. Has he had any meetings with the Government to discuss the proposals in the spirit of compromise?
Mr. Grieve: Let me briefly recap what has happened since 2003. I shall try not to take too long. An assurance was given in 2003, as the right hon. Gentleman will recollect, that the provisions of section 43 of the Criminal Justice Act 2003, which could not be implemented without a resolution of both Houses of Parliament, would not be brought in, and that the Government would look to bring in further primary legislation and would carry out consultations before they did so.
The right hon. Gentleman may also be aware that there is considerable disagreement between the Opposition and the Government as to whether consultation ever took place. The Government’s understanding of the consultation was a one morning-long seminar to which people were invited without appreciating that that was the only formal consultation that would take place. I was unable to attend. My noble Friend Lord Kingsland attended and was not aware when he was there that that was the consultation. Other people also attended, I think.
That was not a productive process. The Government then announced that they would proceed by trying to get the affirmative resolutions on section 43. When they tried to do that, the Lords indicated that it was in breach of the undertakings given in 2003 and that they
would not go along with it. Following that, negotiations took place. I put it on record that the Attorney-General held meetings on two occasions with myself and other hon. Members, and that we had the opportunity to discuss in his chambers in Buckingham Gate the issues surrounding the options, but without the wider consultation that I expected as a result of the assurances given in 2003 by the then Home Secretary, the right hon. Member for Sheffield, Brightside (Mr. Blunkett).
I suggested at that stage that one possible way forward was the special jury system. Although there are drawbacks, I would find that an acceptable solution if it met the Government’s anxieties. I regret the fact that the Government have never been able to be tempted, so all I can do at this stage of the Bill is to see whether there are any other solutions that might tempt them.
That is what new clause 15 seeks to do. It would provide for a panel of experts drawn from the Institute of Chartered Accountants, the Society of Actuaries or
“other persons prescribed by regulations made by the Lord Chancellor”.
The measure’s title would be changed to “Fraud (Trials without a Jury but with a Panel of Experts) Bill.”
There is a difference between a panel of experts and a jury. The panel of experts would have exclusive right to determine the facts. To get round the problem that if it retires without the judge it becomes a jury, I included the concession that the judge should retire with it. I am not sure what the judge will do when he retires with the experts, but he could advise them on the law, which would be practical, and remind them of any salient facts. However, he could not determine any factual matter in the case of a disagreement.
That gives me an opportunity to resurrect, even at the eleventh hour, the principle of not following the route that the Government have chosen. If the Government gave even the smallest positive sign that the alternative that I have suggested would commend itself, we might make some progress rather than reaching the position whereby the Bill does not get through the upper House and may have to be pushed through under the Parliament Act. That is undesirable on a matter about which we should attempt to achieve some consensus.
Mr. Marshall-Andrews: The new clause might help to solve what appears to be the insoluble problem of public interest immunity applications. Will the hon. Gentleman tell me whether that was considered in Committee? If another tribunal will not deal with PII, how is it to be tackled?
Mr. Grieve:
We considered the matter in Committee. Indeed, we discussed the problem that would arise with trial by judge alone if various applications were made to the judge on matters of law, which might mean his being told facts that would not otherwise be placed before him. The Government’s attitude was fairly dismissive. They claimed that trained judges can put out of their mind what is irrelevant to their determination of matters of fact. The Government are satisfied that that will happen. I do not have that confidence. I profoundly believe that the system whereby judge and jury have separate roles in criminal justice in the Crown court is important. New clause 15
would go some way towards solving the problem, because the judge could still deal with points of law but have no role in determining questions of fact.
Mr. Marshall-Andrews: I appreciate that this question would be better directed to the Solicitor-General and I shall attempt to do that in due course. However, given that I did not serve on the Committee, I should be grateful for some guidance. How can the measure deal with articles 6 and 12 of the European convention on human rights? When a case goes to Europe, how could the measure deal with the defence argument of, “I was addressing a judge when he, with the prosecution, was privy to factual matters and allegations of which I had no knowledge”? The Bill would not have a prayer in a European court. How did the Committee consider that?
Mr. Grieve: The matter was discussed in Committee, but the hon. and learned Gentleman would do better to direct his questions to the Solicitor-General. Anxiety was expressed about mixing the role of the judge as guardian of the process with his having to make findings of fact. We went into the process whereby judgments would be given in detail. However, much remained obscure to me. If the Solicitor-General can respond to the matters that the hon. and learned Gentleman has raised, I should be grateful. We did not consider the minutiae of some of the issues that were likely to arise, although my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg), among others, referred to them.
I do not want to take up more of the House’s time on new clause 15. It is an alternative that, I am sure, contains many flaws, but I have to say that if I were offered the choice between the new clause and the Government’s preferred option—and they were the only two options available—I would opt for the new clause. It would preserve public confidence in the idea that the decision of innocence or guilt should be made by an independent group of people and not by a judge. I have always believed that that is one of the most profoundly important aspects of the criminal justice system that we possess today. I do not wish to see it eroded.
Briefly, Government amendment No. 1 is designed to provide that a trial by judge alone can be conducted by
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