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“a judge of the Crown Court nominated for the purposes of that section by the Head of Criminal Justice”.
Because I have had an opportunity to talk to the Solicitor-General about it previously, I understand the reasons why the Government amendment was tabled. The straightforward argument is that there are not enough High Court judges to do this work, which will be long and onerous, and that some Crown court judges might be capable of sitting alone as judges in long trials.
I have two objections to that. First, my experience suggests that few Crown court judges are capable of sitting as judges alone—certainly not without extensive training. The vast majority of Crown court judges, particularly those with the heaviest work load, tend to come from a background of criminal advocacy—and very good at it they have become, too—and will not have had the experience of collating, marshalling and assembling factual material so as to be able to deliver
judgments and manage the trial process. There may be exceptions—I am always prepared to accept that—but I do not think that there will be very many. Oddly enough, the exceptions are most likely to come—certainly in my experience of long fraud trials—from judges who also do civil work. Increasingly in my experience, however, that particular mix has become rarer rather than more common on the circuit benches. For those reasons, I have serious reservations about the proposal.
Secondly, my reservations extend to a matter of principle. I found it slightly curious that in the course of our previous debate, the Solicitor-General said that any suggestion that the defence should be allowed to make an application for trial without a jury
“could increase the number of non-jury trials and might leave us open to accusations of acting in bad faith.”
That is what he said in his letter to me. In actual fact, my recollection is that the assurance that a High Court judge would conduct the trial was one of the assurances given by the Government when they were trying to persuade both Houses of Parliament to accept their previous proposals—I see the Solicitor-General nodding—and for that reason alone, I would not be disposed to accept the Government amendment. I am conscious that it will be seen—particularly in the other place, I fear—as a breach of a previous undertaking. I am not quite sure how the Solicitor-General can reconcile this issue with what he said in respect of defendants applying for the right to trial without a jury.
The Solicitor-General: Let me be very clear that it was Opposition Members who raised the issue with us in Committee and we agreed to go away and consider it. It was not an extension of non-jury trials—we had said that we would not do that. I consulted the senior judiciary on the matter and they were very strongly in favour of making the change. In those circumstances, we felt that it was right and proper to bring the change before the House. I do not think that there is any breach of faith. Indeed, during the course of the Committee stage, we listened to Opposition Members, took up a proposition, consulted the judiciary and came back with an amendment. I think that that is acting in good faith.
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Mr. Grieve:
That is not the most persuasive argument that the Solicitor-General has ever put forward. He is absolutely right to say that the possibility was raised by the Opposition in Committee. It was debated and we tried to look objectively at its pros and cons. I also said in Committee that, while I appreciated that there was an argument in favour, it was a matter on which I wished to go away and reflect. The Solicitor-General will remember that he and I subsequently had a conversation, during which I explained that, having discussed the matter with my colleagues, particularly those in another place, I had come to the conclusion that I could not support the Government’s course of action. As a result of that conversation, I was left with the distinct impression—I do not mean to suggest any kind of breach of good
faith here—that the Solicitor-General would proceed with this measure only if there were agreement on all sides that it was the course of action to take.
I was therefore slightly surprised, when I saw the Government amendments, that the matter on which I had suggested that we would support the Government—the right of a defendant to apply for a trial without a jury—had not been proceeded with, and that the Solicitor-General had decided to go ahead with the matter on which I had said that we could not support them—that of allowing Crown court judges to be nominated to hear the cases. I do not take issue with him on this; it is a decision for him, for the Law Officers and for the Government. It is clear, however, that the amendments represent a change from the previous assurance to try to bring people round to the Government’s way of thinking. In that sense, what I said earlier was absolutely correct, as I am sure the Solicitor-General will agree.
The Solicitor-General: I do not dispute the history as the hon. Gentleman outlines it. However, as the matter was raised in Committee, the Government took further soundings from the senior judiciary. Having done that, and having received an enthusiastic reaction to the proposal, I believe it was right and proper to respond by bringing the measure back before the House. During our conversations, the hon. Gentleman said that the Opposition—the Conservative Opposition, at least—in another place would not support this change. It was our initial wish that Crown court judges be allowed to carry out the trials. We listened to early representations from the Opposition on the matter back in July, and agreed to change the proposal. However, when the issue was again raised by the Opposition, we took the opportunity to take further soundings from the judiciary, and now we are back here where we are. This has been a fairly straightforward approach. I do not think that my integrity or that of hon. Gentleman is at stake over this, but the Government do wish to proceed with the amendment.
Mr. Grieve: I have no doubt that this exchange will be read with interest in another place. My personal view remains that High Court judges would be better placed to hear such cases, if we are to move to a system of trial by judge alone. The Solicitor-General has said that we are talking about only a handful of cases a year. In those circumstances, while it might prove burdensome for the High Court judges—I am sure that that is why they would like gently to get someone else to do the work—I am afraid that that is a burden that we shall have to impose on them. The Government have in the past recognised people’s anxiety that, if such trials were to take place before a judge alone, they should be heard by judges of the highest calibre. In those circumstances, it remains my view that it would be much better for High Court judges to remain the only judges who can try those cases.
Mr. Hogg: I wish to say a few words about amendment No. 15, which stands in my name. It is similar in terms to Government amendment No. 1. I find myself very much in agreement with my hon. Friend the Member for Beaconsfield (Mr. Grieve) on new clause 15, which makes me yet more regretful that I do not agree with him on the status of the judge.
I entirely understand the arguments for confining these trials to a judge of the High Court; there is merit in that. It is true, however, that many Crown court judges have extensive experience in fraud cases. I do not have the experience of fraud cases that the hon. and learned Member for Medway (Mr. Marshall-Andrews) has, but I have been involved in two long fraud cases in recent years, both of which were conducted before a Crown court judge. One has only to keep in mind the nature of the cases going through the Old Bailey to recognise that many of its judges have substantial experience in long fraud cases. Some, of course, do not, and that is why a procedure for designation by the Lord Chief Justice or a High Court judge nominated by him as the designating judge should be allowed. I therefore conclude that we should not confine such trials to a High Court judge but should extend the right to Crown court judges who are designated by the Lord Chief Justice.
Mr. Marshall-Andrews: May I say how much I agree with the right hon. and learned Gentleman’s comments and, in this case, with what the Government are trying to do? Does not he share my sadness, however, that amendment No. 13, which he and I tabled jointly, has failed to make the cut? It would have ensured that the case would be tried by the same judge who decided whether it would be judge-alone. First, that is sensible, as the same judge would be reading the papers. Secondly, it would prevent the danger, which I am afraid exists, that one judge will dump on another judge the responsibility of trying a case on his own. If judges are going to make such an onerous order, they should make it for themselves, not for somebody else.
Mr. Hogg: That is a very sound observation, and I was pleased to add my name to that amendment drafted by the hon. and learned Gentleman.
I shall not oppose Government amendment No. 1, but I shall certainly not go into the Lobby in support of it. I am against the Bill, and I do not wish to be associated with it in a positive way in any Division connected with enacting it.
Mr. Heath: All Opposition Members, and many Labour Members, are totally against the Bill. That is our great problem in debating the amendments, because even if every amendment that we supported were passed, we would still be against the Bill on Third Reading. All we are trying to do is make an awful Bill slightly less awful.
Mr. Greg Knight (East Yorkshire) (Con): Is not it virtually without precedent that not a single Labour Back Bencher has stood up in support of the measure today?
Mr. Heath: I am not sure that it is without precedent, as I seem to have stood here on many occasions and heard not a single argument in favour of the Government, other than from their Front Bench. That is more a reflection of the quality of the legislation put before us than of the assiduity or otherwise of Labour Back Benchers. It is often difficult for them to support what Ministers would ask us to accept.
We must make a judgment as to whether the amendments would marginally improve an otherwise
appalling Bill and should therefore be supported, or whether they cross a narrow line whereby, were they passed, the provisions would still be so abhorrent as to be unacceptable. I have difficulties with the amendments in this group.
I listened carefully to the comments of the hon. Member for Beaconsfield (Mr. Grieve), as I always do, and I know that he is trying to find some escape clause for the Government—some way that they can retreat while retaining some degree of face. He knows that we have all tried to find ways in which some of the arguments used can be accommodated. One of the difficulties is that the argument for the Bill changes almost every time that it is put—sometimes within the space of 10 minutes. The Solicitor-General can veer from one argument in support of the Bill to a totally different one when stymied by an intervention from the Opposition. It is therefore difficult to work out what the Government are trying to achieve. In good faith, however, we have asked whether there are better ways of managing such complex and lengthy trials and of protecting jurors from the difficulties that they might face.
We have always maintained the absolute position that the jury element—not necessarily the 12 good men and true of the present structure, for there are other ways of empanelling a jury, but lay finders of fact—is the essential element. We have to consider whether the panel of experts proposed by the hon. Member for Beaconsfield constitutes a jury. Is he suggesting a form of judging panel, not consisting of lay members of the public who are the peers of the accused? Is he suggesting a different way of setting up a panel of judges? Our view is that the hon. Gentleman’s proposal falls on the wrong side of the line.
New clause 15 deals with one of the Solicitor-General’s arguments, which is that cases of this kind are terribly difficult and that it is sometimes extremely onerous for juries to comprehend them and assimilate large volumes of material. The professionals suggested by the hon. Gentleman would presumably be better placed to do that than a person drawn at random from the population. The new clause does not, however, pass the other tests that the Government occasionally adduce as reasons for the Bill, and, as I have said, it loses an important ingredient in not retaining the nature of a lay jury. That is why my hon. Friends and I will not be able to support the panel idea, although we applaud the hon. Gentleman for trying to find ways of dissuading the Government from their ultimate course of action, even at this late hour.
The hon. and learned Member for Medway (Mr. Marshall-Andrews) has been very clever in smuggling his amendments, which were not selected, into the debate. I agree with some of the important points that he made, but I cannot agree with him, or with the right hon. and learned Member for—
Mr. Hogg: Sleaford and North Hykeham.
Mr. Heath: I ought to know that by now.
I cannot agree with the right hon. and learned Gentleman on the issue of the Crown court judge, for a number of reasons. First, these are by definition the most difficult cases, the most complex cases, the cases that may have important implications for other cases or
involve careful legal judgments. It seems perverse, therefore, to use a different tier of judges from High Court judges to hear cases ascertained to be the most difficult.
Mr. Hogg: Does the hon. Gentleman not accept that many cases that are tried before Crown court judges are immensely difficult? I am thinking of long terrorist trials, difficult murder cases and rape cases that depend on complicated DNA evidence. It is wrong, is it not, to suggest that fraud cases are particularly and peculiarly difficult?
Mr. Heath: We are returning, in a circular fashion, to the earlier argument. No, there is nothing particularly different about the length or complexity of fraud cases in comparison with some other classes of case, which is why we are so concerned about the Government’s proposals. Given, however, that the Government have decided that these are the most difficult, complex and lengthy fraud cases—so much so that they must remove a key safeguard in our judicial system, and make a judge become a finder of fact as well as assessing the law—it strikes me as perverse that they should be heard by not a High Court but a Crown court judge.
Of course, not every Crown court judge will be involved; the judges will be specially selected. The implication of that is that a couple of Crown court judges will become the specialists in this field. Great dossiers will be plonked on their desks and they will be told, “Here you are; here is a complex fraud case for you to conduct. Goodbye, and see you again in six months.” Therefore, there will be a specialist cadre of judges who will look at such cases week in, week out, month in, month out and year in, year out. That raises another important issue in relation to serving the interests of justice—case-hardening for judges, particularly if they are finders of fact as well.
4.15 pm
Mr. Marshall-Andrews: May I profoundly disagree? High Court judges are a brainy lot, but one of the problems in our system is that they often come from a background in which they deal with no crime at all. Our system is unique: we elevate people who are experts in trusts, codicils and wills to the rank of High Court judge and then expect them to deal with murder, mayhem and crime. We have very good Crown court judges, and they understand the problems that the Bill will cause. They will have a far better understanding of the matters we are discussing than High Court judges, and in truth they will be far less likely to grant applications.
Mr. Heath: It seems that the hon. and learned Gentleman might be arguing for the recruitment of new High Court judges who are better able to hear such cases, and saying that the current mix in the High Court is inappropriate. I cannot accept that it is right to take Crown court judges away from their duties in order to sequester them for a long time in examining such complex cases without giving them the status or tenure of a High Court judge—especially as by so doing the circuit will be impoverished.
That leads me to my last point. We make huge demands on Crown court judges. There are enormous amounts of work for them to do. They not only have to hear cases involving the huge panoply of new offences that the Government daily create, but now even have to consider carefully whether there are any prisons with free places to which to send the accused person at the end of the case if they are convicted. Our Crown court judges need to be on the circuit where they can do their valuable work. It is worrying that the Government’s proposal might have a diluting effect on the judiciary at Crown court level.
David Howarth: Is not the answer to the point made by the hon. and learned Member for Medway (Mr. Marshall-Andrews) provided by a point that was made by the hon. Member for Beaconsfield (Mr. Grieve)? Crown court judges are experienced in fraud trials, but only in fraud trials with juries, and they are not experienced in bench trials. In our system, such trials happen on the civil side but not on the criminal side. Also, High Court judges have experience as fact finders in complex civil trials.
Mr. Heath: That is a valid point—and as my hon. Friend said, it was made by the hon. Member for Beaconsfield. The number of judges who are used to trying both criminal and civil cases in Crown court is now extremely limited, so the argument that there is familiarity falls on that basis.
We will oppose the Government’s proposals on the extension of the use of Crown court judges. We also cannot accept the new clause tabled by the hon. Member for Beaconsfield, with its panel and, particularly, its curious arrangement that the judge will go into the jury room.
Mr. Grieve: Will the hon. Gentleman give way?
Mr. Heath: The hon. Gentleman wishes to tell me that that is perfectly familiar in Napoleonic law.
Mr. Grieve: It is indeed perfectly familiar in Napoleonic law, so there is a precedent. Whether it is a commendable precedent is an open question.
Mr. Heath: I am not sure that it is an open question; some of us will defend English legal process. The only advantage that I can see of the judge’s going into the retiring chamber and acting as some sort of back-seat driver is that it gives new grounds for appeal, which might be a very good thing in this instance. On that basis, we will oppose new clause 15, if it is pressed to a Division, and we will certainly oppose Government amendment No. 1.
The Solicitor-General: The hon. Member for Beaconsfield (Mr. Grieve) was not convincing in his efforts to tempt me down the road of accepting new clause 15. He pointed out that he did not really think that it was the right thing to do, that he did not really agree with it fully, and that he was not sure what on earth the panel would do with the judge if they got together. He has therefore made my job of dealing with it rather easy.
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