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New clause 15 would give rise to a number of difficulties. The role of the expert members is uncertain, and there is a risk that their private views about the expert evidence that had appeared before the court would find their way into private discussions with the judge and influence matters in a way that the defence or prosecution might not have had an opportunity to comment on. It is also unclear whether suitable members could be found, how they would be paid, and so on. However, the hon. Gentleman was good enough to say that although he has tabled the new clause, it is not really the way that he wants to approach matters. He wants a special panel that sits separately from the judge.
Our view throughout has been that a key issue is the need to manage such trials in a way that enables a judge to prevent procrastination by defence lawyers. That issue emerged from the report on discussions with the jurors in the Jubilee line case, who were concerned about defence procrastination. Moreover, there is the question of the ability to let lawyers know during the course of proceedings that the judge did understand the nature of the documentation before him, and of the ability to ensure that the case proceeds with much more care and skill and reaches an appropriate and just verdict. In our view, that means that in certain cases, particularly very lengthy and complex ones, there need not always be a jury, and that there would be many cases—at least half a dozen a year—that would benefit from a judge-only trial.
Mr. Marshall-Andrews: May I take up my hon. and learned Friend on that point? He has said again that there will be about six such cases a year. On what basis has he come up with that figure? I understand that it comes from the Serious Fraud Office, and that the presupposition is that all such cases will be mounted by it. In fact, the vast majority of cases in which such applications are likely to be made are those mounted by Customs and Excise, particularly missing trader intra-Community fraud cases. It seems to many of us who practise in that area that the likelihood is that those applications will be made in far more than six cases.
The Solicitor-General:
Let me be clear about this. When we introduced the Bill, it was our view that the figure could be up to 20. However, on looking at the number of cases that, in practice, lasted more than six months in the past four or five years—some lasted more than a year—the figure worked out at about half a dozen. I do not envisage that there will be any great wish to have non-jury trials unless necessary, so it is my view that the likely number is about half a dozen. My hon. and learned Friend is right to say that Her Majesty’s Revenue and Customs is one prosecutor that would be likely to make such an application. We have engaged with HMRC and the SFO and talked to them about the sorts of cases in which they might seek a non-jury trial. Our judgment remains that it would be about half a dozen a year. It could be up to 20, but it is very unlikely to be in that range. We are looking at a much lower figure, and certainly in the next two or three years it may be even fewer than six. I cannot give my hon. and learned Friend a cast-iron figure. We do not have anything in statute and we are to some extent relying on the way in which the prosecutors and courts
proceed. In due course, we will be able to consider the situation and evaluate how many cases end in non-jury trials in practice.
Keith Vaz: In response to an intervention by the hon. Member for Beaconsfield (Mr. Grieve), my hon. and learned Friend the Solicitor-General mentioned that he had had conversations with senior judiciary about the amendment. Is he telling the House that they now support the Bill?
The Solicitor-General: I do not think that the senior judiciary should be involved in a controversial political debate about a Bill. It is not their role to take sides on a controversial political issue like this. I can say that we have discussed the issues. My right hon. Friend knows, because it is a matter of public record, that Lord Justice Auld—and before him, the Roskill report—set out a view, having considered in detail the concerns expressed about serious and complex fraud cases over several years by many sources, including judges and lawyers. Therefore, I shall openly avoid my right hon. Friend’s question by saying that I do not want to put the senior judiciary into the position of taking a side on a controversial political issue like this. That is our job.
However, it is appropriate for the senior judiciary to say that they would like to be able to manage in a particular way an issue on which this House has decided. I sought express consent from the president of the Queen’s bench division and head of criminal justice, Lord Justice Sir Igor Judge, to indicate his view on the subject and he agreed that I could say that it was his wish that Government amendment No. 1 should form part of the Bill to enable the courts better to manage the process of dealing with non-jury trials.
New clause 15, tabled by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), would have a similar effect to Government amendment No. 2, the main difference being that our amendment gives to the head of criminal justice a power to nominate or designate a Crown court judge. The new clause would confer the power on the Lord Chief Justice with a specific power of nomination. We consider, and the senior judiciary are confident, that the power is one that it is appropriate to give to the head of criminal justice. Therefore, our view is that the president of the Queen’s bench division, the head of the criminal justice system—at present, Lord Justice Sir Igor Judge, and I take this opportunity to congratulate him on confirmation of his position as head of criminal justice yesterday—is the appropriate person to make this decision. It does not have to be the Lord Chief Justice, and indeed his view is that he would prefer it to be the head of criminal justice, who is the president of the Queen’s bench division.
The Government amendments were prompted by concern that clause 2 of the Bill might, in its present form, be too inflexible. Opposition Members spoke in Committee of the potential difficulty of finding High Court judges to deal with what, by definition, would be extremely long trials. They argued passionately that I should look at the matter, and I agreed to do so. Government amendment No. 1 is the result. I have spoken to the senior judiciary, who said that they were in favour of it.
As I said, the number of possible candidates for non-jury trial under section 43 is small, at about half a dozen a year—an estimate based on the number of fraud trials in recent years that have lasted six months or more. Some of the cases in which a section 43 order is made would no doubt be assigned to a High Court judge in any event, but we believe that it makes sense, where possible, to assign very long and complex trials to judges of exceptional ability and appropriate experience. That is why we took up the proposal for a requirement that section 43 applications, and any ensuing trials, should be assigned to High Court judges. However, while some circuit judges are more than capable of dealing with such matters, others are not, and we believe that it is appropriate for the Lord Chief Justice and the head of criminal justice, the head of the Queen’s bench division, to take a view as to which judges are suitable.
My hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) asked whether the same judge who decided that a case should be dealt with under section 43 should be allowed to try that case. We envisage that the head of criminal justice would identify a judge to hear an application, and that if he decided that section 43 applied, that same judge would normally take the case through. However, circumstances might intervene—for example, the judge involved might die, fall ill, or be tied up in another case for a long time.
Although I take the reasonable point put forward by my hon. and learned Friend that it would be better if the judge who makes the initial decision were to take the trial through, I do not want to include in the Bill restrictions on the discretion of the president of the Queen’s bench division, who is the head of criminal justice. He ought to be the person to make the judgments involved.
Mr. Marshall-Andrews: I do not want to embark on an amendment that did not make the cut, but it is obviously desirable that the judge who decides that a trial should be judge-only should be the one to hear it. I can tell my hon. and learned Friend that a great deal of trouble would be caused if judges, and especially High Court judges, were to decide that a trial should be judge-only and then left it to be heard by a Crown court judge who was not involved in the decision. Moreover, if the case changes and a defendant decides to plead guilty after previously pleading not guilty—and if that plea had been part of the original judge’s contemplation when making the judge-only ruling—another judge will have a great deal of difficulty in unravelling the original judge’s thinking.
If the House of Lords can find a form of words that accommodates my hon. and learned Friend’s natural wish not to trammel the discretion of the Lord Chief Justice, but which none the less provides for the exceptional circumstances that he has described, will he look on it with a certain amount of kindness, if not approbation?
The Solicitor-General:
I would prefer not to put in the Bill a restriction on the discretion of the president of the Queen’s bench division, the head of criminal justice. However, he will be able to look at Hansard and
read the arguments advanced by my hon. and learned Friend and me, and we should leave it to him to determine which judge should handle any given case. In some circumstances, he may decide that the judge who heard the initial section 43 application is not the right one to deal with the trial as a whole. It is, however, the case that the way in which the whole process will evolve is one in which hon. Members would prefer the same judge to deal with the case, where that is possible and practicable. That is as far as I want to go. I would rather leave the discretion in the hands of the head of criminal justice. I cannot give an undertaking in relation to any amendment from the Lords.
A number of circuit judges are amply qualified to handle these cases. People like Sir Geoffrey Rivlin and others spring to mind. They could deal with the serious cases if they were disposed to do so. It is not intended that any old circuit judge, to put it carefully, should deal with them. The head of criminal justice will take a view on who would be the appropriate judge to deal with these issues and will ensure that the appropriate judge can handle the array of evidence put before him. Many judges in their careers as barristers will have handled masses of complex material and had to form an opinion on it. I do not see the difficulty with that.
The point made by the hon. Member for Somerton and Frome (Mr. Heath) completely defeated me. He seemed to suggest that circuit judges ought to be on their circuit and that we could not spare them to deal with complex, serious, fraud cases which took too long, so we had to use High Court judges, who are more senior judges and often deal with more serious cases. That argument does not stack up. We need to ensure that we have the right judge for the right case. We can do that with the Government amendments, and I hope that the House will support them.
I have not dealt with a point raised by my hon. and learned Friend the Member for Medway. Does he wish me to deal with public interest immunity, or is he satisfied at this point?
Mr. Marshall-Andrews: It would be helpful if my hon. and learned Friend would deal with PII. It causes great concern. How can it possibly be brought within the European convention that a judge sitting as judge of fact and law hears matter from the prosecution to which the defence is not privy and thereafter becomes a judge of fact? I am trying to be helpful, but I would have thought that a case in those circumstances would not have a prayer within the European Court.
The Solicitor-General: I know that this concerns my hon. and learned Friend, so I shall deal with it at some length. The issue requires careful analysis. In much of Europe, single judges or a tribunal will deal with cases. Indeed, in Northern Ireland we have Diplock courts.
The Government are confident that existing public interest immunity procedures are fair and effective and do not in any way endanger the rights of defendants. Currently, both lay magistrates and district judges hear public interest immunity applications and go on to find on the facts. The same is true of Crown court judges, dealing with confiscation proceedings. We are confident that these procedures will work equally well when used in the course of an application under section 43.
Doubts have been expressed about the impartiality of a judge who, having heard information prejudicial to the defendant, goes on to hear the facts. However, having detailed knowledge of this sort of information does not necessarily mean that the judge will automatically be considered prejudiced, as some of those raising objections seem to imply. Rather, the key question must be whether there are any ascertainable facts which would raise legitimate and objectively justified doubts about a judge’s impartiality. I am not convinced in general that there are.
The first point to note is that information prejudicial to the defendant is not likely to be the subject of a PII application in any event, but it is possible. Secondly, the judge is perfectly able to disregard any irrelevant information and may indeed be well used to doing so. In the case of R v. H and C, the House of Lords made the following relevant observations:
“If PII applications are confined, as they should be, to material which undermines the prosecution case or strengthens that of the defence, the bench will not be alerted to material damaging to the defendant. If it is, the principles which should govern the court’s decision whether to recuse itself are the same as in the case of any other tribunal of fact, but the court’s duty of continuing review ordinarily militates in favour of continuing the proceedings before the court which determines the PII application.”
In the recent—2005—case of R. v. May and others, which involved carousel fraud, the Court of Appeal considered the fairness of proceedings where the same judge had dealt with PII applications in proceedings for conspiracy to cheat the Revenue and in later confiscation proceedings. The judge stated that in reaching his decisions in the confiscation proceedings, he had ignored any material that he had earlier decided attracted public interest immunity and should not be disclosed. The appellants argued that that was unfair and that the judge should have “recused” himself.
The Court of Appeal rejected that argument and emphasised that it was perfectly possible for a judge in such a position to put prejudicial material out of his mind. As the Court of Appeal said:
“That is a familiar process in judicial decision-making in this country. It is, to take only one example, a process which has to be gone through whenever this court has to consider an appeal both against conviction and against sentence: the court in preparing for the hearing may have seen material relevant to the sentence appeal which it must ignore for the purpose of the conviction appeal. It does so conscientiously.”
The Government do not accept that anything in the Bill will prevent defendants from getting a fair trial or lead to any breach of defendants’ rights under the European convention. Indeed, I am pleased to note that when the Joint Committee on Human Rights considered those issues, it came down firmly on the Government’s side.
Mr. Grieve: Despite the comments that the Solicitor-General has just made, I do not entirely share his confidence about dealing with either the difficulties that will be faced in respect of public interest immunity applications, or those that will be perceived in respect of judges trying issues of law and fact together in serious criminal cases.
I want to return to new clause 15. The Solicitor-General will not be surprised to learn that I shall seek leave to withdraw it. I fully accept that the new clause
and the concept of an expert panel have many shortcomings, but I regret that the Government are so implacably opposed to special juries, because although they, too, have drawbacks, they would be infinitely better than the course on which the Government are embarking, which is to get rid of juries altogether in select cases. For that reason I thought it right to find any creative means of bringing the argument back to the House at a time when the procedures of the House made it extremely difficult to do so.
On the Government’s position on trial by Crown court judges, some Crown court judges may be found suitable for such work—I shall forbear to list those who would be wholly unsuitable.
I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
Mr. Hogg: I beg to move amendment No. 14, page 1, line 1, leave out clause 1.
As we are coming to the conclusion of the time for debate on this stage of the Bill, I shall be brief. The purpose of the amendment is to delete clause 1 and, in effect, to retain the affirmative resolution procedure as the basis for implementation of the Bill’s provisions. I justify that position on two grounds: principle and compliance with assurances given to the House. I begin with the latter point.
I have looked once again at the assurances given by the then Home Secretary on 20 November 2003, which are recorded in Hansard, columns 1027 to 1031. I shall not read them out because they are available to Members. My clear interpretation of the assurances then given to the House was that the measure in the Bill would be subject to affirmative resolution and that it would not be introduced at any stage without the approval of both Houses. That is my understanding of what was said, and it reflected a deal. Anything that departs from that is a departure from assurances given.
4.45 pm
My second point is different. What we are doing today is laying the foundations for a Parliament Act procedure, because it is extremely unlikely that the other place will pass the Bill in its present form. The Government are laying the basis for such a procedure, and I find that deeply offensive for two reasons, although I am basically against the Parliament Act, but that is by the way.
First, we should recognise that there are in the other place skills and experience highly relevant to the Bill. In the debates in the other place, a great deal of expertise and authority have been shown. We are disregarding that in a way that does us no credit at all. I hope that the House will forgive me if say that this debate is notable for being marked by the absence of the hon. Members who will vote against my amendment. With one or two notable exceptions, such as the hon. and learned Member for Medway (Mr. Marshall-Andrews), Labour Members have hardly attended but, in effect,
they are going to vote down the House of Lords. I find that very unattractive indeed.
I shall touch on my second point briefly, because I want to remain in order. When we look at what we are doing, we must consider its constitutional propriety. The Bill is going to be pushed through on the back of Members who represent Scottish constituencies, but the Bill does not touch on Scotland. If the Parliament Act is invoked, that will be even more offensive because it will be invoked using Members representing Scottish constituencies when this very Bill does not have any impact on their constituencies. It will be extraordinary if almost the first act of the Chancellor of the Exchequer on becoming Prime Minister—I assume that he will—is to use the Parliament Act to impose on this country measures that have no application at all to the constituents whom he represents. I find that constitutionally offensive. It is a matter for a wider debate and it will have to be resolved, but it is not right that Scottish Members should have a decisive say on English-only business.
Therefore, for the general reason and the particular reason, I hope very much that the House will approve the amendment.
Mr. Grieve: I shall be brief, as I am conscious that others wish to speak and that the Bill’s Report stage is coming to an end.
I entirely support the amendment tabled by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg). It is wholly desirable that there should be a further opportunity for the House to use the affirmative procedure before this dreadful Bill is brought into effect. Losing the protection of the affirmative procedure is wholly undesirable. As a matter of principle and in view of my attitude towards the Bill generally, it would be a very good thing if the House were to support the amendment.
Mr. Heath: We entirely support the amendment on two grounds: one pragmatic, and one principled. The pragmatic reason is that I will do absolutely anything that might frustrate the Government’s intentions. This is yet another opportunity to do so. The reason for the pragmatic approach of wishing to frustrate the Government by any means possible is the principle of the retention of jury trial. That principle is not only right but is accepted widely in the country at large.
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