Simon
Hughes: I have a linked question, and a separate question
that is germane to new clause 2. I take up the question asked by the
hon. Member for Beaconsfield. Have the Government had consultations
with the High Court bench on whether it is ready and preparing for the
eventuality of Parliament agreeing to this measure? More particularly,
do the Government envisage certain types of High Court judges doing the
work rather than judges taken at random from the court? For example,
will commercial judges be asked to do the work? Some reports suggest
that there will be a list of designated High Court judges who will do
this sort of work.
That gives rise to a matter
that has caused some anxiety in previous debates and elsewhere: that
there will be judges who are known to be the judges of fact and law in
these cases. By definition, because they will be the only ones in the
country who have that responsibility, they might be more exposed to
threats from people who cannot knobble juries but who will be able to
spot judges who might try their case.
My second question relates to
clause 2(2), which amends section 48 of the Criminal Justice Act 2003,
and refers to the wording not just in respect of fraud trials but of
trials that would be heard by a single judge where there has been jury
tampering or where the jury has been discharged for that
reason. When we
debated the Criminal Justice Bill in 2003, it was accepted by
Parliament, including the House of Commons, that the one exception to a
jury trial in serious cases should be in the event of the corruption of
a jury, where there was a safety issue, or when there was a suspicion
that jury tampering meant that there could not be a fair verdict on
fact. My question to the Solicitor-General is, has that part of the Act
been implemented?
The
Solicitor-General indicated
assent.
Simon
Hughes: The Solicitor-General nods, which confirms what I
thought, that it has been implemented. If so, on how many occasions has
the measure been invoked, if at all? If it has not been invoked, is it
simply because no application has been made or that no such
circumstances have arisen? I am seeking an update on this part of the
proposal, because it is novel legal ground and there has been no chance
in the formal domain, on the record in Parliament, to learn whether
that has happened or any chance to discuss the progress towards
implementation.
Robert
Neill: I want to probe the Solicitor-General further on
similar lines. I refer to my earlier intervention on the impact of the
proposal on the judicial personnel who will be required to deal with
these matters. I agree with my hon. Friend the Member for Beaconsfield
that the suggestion that these matters are dealt with by a High Court
judge came largely from the Conservative Benches, but I want to be sure
that the Solicitor-General and the Government have thought through the
practical
implications. In
murder cases, for example, it is possible to release the case from a
High Court judge to a designated senior circuit judge—ticketed
judges, as they are called in the profession. I take it that it is not
intended that that should be the case in this measure, otherwise it
would be self-defeating. Or would it? The ability to release a murder
case to a senior circuit judge is a very useful and flexible tool in
respect of listing and judicial availability. The lack of availability
of ticketed judges in murder and rape cases is one of the constraints
that cause delays in hearing cases.
It is important to ensure that
there is not a similar delay in the cases we are discussing if a
suitable judge designate is not available, a matter to which the hon.
Member for North Southwark and Bermondsey referred. If these cases are
not to be released, how do we get round that lack of flexibility? It is
ironic that it is now possible for senior circuit judges to sit in the
Court of Appeal. They are very often ticketed to try murders, but it
does not appear that they would be ticketed to try serious fraud cases.
That might be an unintended consequence, but it seems to be a paradox.
Will it be resolved through the Bill or
regulations?
12.15
pm What
consultation has there been, not just with the senior judiciary, but,
particularly, with the Council of Circuit Judges, whose members might
have a useful view, and presiding circuit judges, who will have a
responsibility for the administration and listing of such cases? Those
matters are as yet unclear, and I would be grateful to the
Solicitor-General if he could provide
clarification.
The
Solicitor-General: Clause 2 provides that applications
under section 43 of the Criminal Justice Act 2003 and the resulting
non-jury trials would have to be heard by a High Court judge, rather
than a Crown court judge. The change was proposed during various
discussions and the Government have said that we are disposed to accept
it. The status of High Court judges provides an added safeguard and we
felt that the proposal was one to which we could accede.
I listened with great care to
the comments made by the hon. Member for Bromley and Chislehurst on the
nature of the High Court judges who might consider such matters. The
identification of appropriate judges to hear such cases would be a
matter for the President of the Queen’s bench division. The hon.
Gentleman raised an interesting point: some senior circuit judges can
try not only murder cases, but very complex ones, and some of them
might be more than competent to deal with complex and serious fraud
cases sitting alone. That is worth thinking about. I do not want to
make public details of the recent discussions between the Lord Chief
Justice and the President of the Queen’s
bench division, but it is safe to say that a point was made similar to
that raised by the hon. Gentleman. I would like to think a little more
about it. We might be able to identify certain circuit judges who would
be capable of dealing with such cases sitting alone—some very
able circuit judges come to mind, although, perhaps not all of them. I
shall think about that, because he made some good points. There are,
I believe, 108 High Court judges. That limit is set in statute so we
will have to take into account the availability of judges. We do not
anticipate that the number of trials that are likely to take place in a
year will be very great—we estimate an average of up to six. In
the past, we have suggested that it could be as many as 15 or 20, but
that is a remote prospect. However, given the various demands on High
Court judges and given that such trials, even if they are few in
number, will take a considerable length of time, there might well be
pressures. It bears thinking about, so I listened with great care to
what the hon. Gentleman said.
As I told the
hon. Member for Beaconsfield, in response to suggestions by the
Opposition, we have concluded that High Court judges will be an added
safeguard. We have no difficulty with that. High Court judges are used
to deciding matters of great importance. They are senior judges who
decide cases involving vast sums of money far more often than such sums
are likely to be the subject of serious and complex fraud cases. To the
hon. Member for North Southwark and Bermondsey, I say that I do not
think that there is a great likelihood that such judges will be nobbled
or corrupted, or that they might become the victims of approaches that
are not already made to them. They decide big cases now; there is no
suggestion that there is corruption or attempted nobbling of those
judges, and I do not anticipate that we are likely to face that in
cases of serious and complex fraud that come before them. In any event,
our judges are more than capable of dealing appropriately with any
approach that might be made, because it would clearly be an unlawful
approach.
Mr.
Hogg: Reinforcing the point that my hon. Friend the Member
for Bromley and Chislehurst made, does the Solicitor-General accept
that now, the judges who have the greatest experience in fraud cases
are the Old Bailey judges—who are not High Court judges by
definition—and senior circuit judges? Does he accept that High
Court judges rarely try fraud cases because of the length of time that
such cases often take? He would have great difficulty finding a High
Court judge who, in his or her judicial capacity, has actually tried
fraud cases.
The
Solicitor-General: I hear what the right hon. and learned
Gentleman says and, as I told his hon. Friend the Member for Bromley
and Chislehurst, I shall bear those points in mind. We have responded
to a request from the Opposition to the effect that High Court judges
might have the appropriate seniority to deal with such cases. I have
some sympathy with the view expressed by the right hon. and learned
Gentleman that some senior Old Bailey judges and circuit judges might
be capable of trying the cases. That is a valid point and, as I have
said, I should like some time to think about it. In due course, after
reflection, I may come back to the Committee and express a view
onthe issue.
Let me respond
to the point made by the hon. Member for North Southwark and Bermondsey
about section 48. That was implemented on 24 July, and I am unaware of
any circumstance in which it has been invoked to date. I should be
surprised if it had been. However, I shall double check that and if it
is necessary to correct what I have said I shall write to the
Committee.
Simon
Hughes: On the point that was made by three hon. Members
about the sort of judge to hear the cases, I hope that the
Solicitor-General will say a word about whether there has been any
discussion of the categories of High Court judges that Ministers have
in mind. Let me make
it clear that nobody is suggesting that judges are likely to fall for
attempts to corrupt them. That is not being alleged. Unless I am
missing something, there will be a new category of judge or of trial.
At the moment, the difficult cases dealt with by single judges are
civil cases, not criminal cases, except when they are appeal hearings,
in which higher court judges sit. Apart from jury-nobbling cases, which
they could now hear, it would be a new circumstance in which a Crown
court or High Court judge alone would be the judge of
fact.
The
Solicitor-General: It is not intended that the Government
will identify a new category of High Court judges to sit in such cases.
Which judges are available and appropriate to try particular cases is a
decision that must be left to the Queen’s bench division.
The hon. Gentleman is
right to say that we are going into new territory. Judges will be
hearing cases without juries. We know that there are non-jury trials in
magistrates courts before district judges and in Northern Ireland; and
in magistrates courts, although magistrates sit, there are no jurors. A
lot of cases are decided without juries, so that is not a big
innovation, but it will be a change for serious and complex fraud cases
to be tried without a jury before a High Court judge. Some High Court
judges deal primarily with civil cases, but they might well have had
experience of criminal practice. The straight answer to the hon.
Gentleman’s question is that we shall have to wait and see how
the President of the Queen’s bench division decides to allocate
judges. The hon.
Gentleman also asked about the various views on the matter that have
been expressed by judges. I have tried to make my points carefully, and
it is part of my responsibility not to get judges involved in a
contentious area of political debate. They should stay above that. It
is publicly known that some support the change, and no doubt there are
those who oppose it—the hon. Member for Beaconsfield has
referred to discussions that he has had with Crown court judges. I do
not want to bring judges into a contentious party political debate,
which would be undesirable given their standing above and beyond such
debate. However, it is safe to say that there are different
views. I believe that
I have dealt with all the points raised, and I shall be happy to deal
with any
others. Question
put and agreed
to. Clause 2
ordered to stand part of the Bill.
Clause
3Section
43 of the Criminal Justice Act 2003: Northern
Ireland Question
proposed, That the clause stand part ofthe
Bill.
Mr.
Grieve: The issue to consider is simple. If it is possible
to avoid Northern Ireland having inflicted on it what the Government
wish to inflict on England and Wales, I wish to take every opportunity
to ensure that it is avoided. For the reasons that I have already
given—I shall not labour them—I can think of no good
reason why Northern Ireland should be included in the Bill. In due
course, when we have the opportunity to vote on the clause, I shall
seek to delete the reference to Northern Ireland so that, even if we
have the misfortune of the Bill being imposed on England and Wales, the
inhabitants of Northern Ireland can be protected from
it.
Simon
Hughes: It would be helpful if the Under-Secretary could
tell the Committee why the proposal is being dealt with in this Bill
rather than in the Justice and Security (Northern Ireland) Bill. Will
she also tell us what the effect of that legislation will be? It has
not come to the House of Commons yet, so we have not considered it. I
have glanced briefly at it, but not given it detailed attention. I
understand that it may well be debated this week in the House of Lords.
It is directly relevant to the clause because I understand that it will
make changes to jury trial in Northern
Ireland. 12.30
pm As the Minister
and colleagues well know, Northern Ireland is the one part of the
United Kingdom where for a long period, going back to the 1970s, and
for particular reasons—namely terrorism concerns—trial
without jury has existed in what are called the Diplock courts.
Particular criteria must be met, but that is considered. What is now
happening is the welcome normalisation of life in Northern Ireland,
including the normalisation of the criminal justice process, which is
going back to jury trial in many more cases. It would therefore seem
sensible that we should debate these matters in the context of Northern
Ireland, where Northern Ireland Members of both Houses could see that
this is a matter that directly affects them, not one that is tagged on
to a debate about English and Welsh jury trial, which is clearly a
different legal system and one where relevant Members of our House and
the House of Lords would have expertise and
interest. My question
is first, what justification do the Government have for this proposal?
It is a parallel point to that made a moment ago by the hon. Member for
Beaconsfield. Secondly, can the Government explain how this is
consistent with the general picture of Government policy towards
Northern Ireland, which is to extend jury trial, not reduce it? It
seems to me that if they are trying to get the message across in
Northern Ireland that we want jury trial to be the norm again, this
will be entirely inconsistent with that approach because with one piece
of legislation they will be saying that jury trial can disappear while
with the other they will be saying that jury trial can
appear.
Finally, my
other, linked, concern is that Northern Ireland may well in the past
have been a place where the threats to the judge and the jury were
considerable—far more than in any other part of the United
Kingdom. The Government in the 1970s took the view that the threats
were such that they needed to get rid of juries in particular cases,
and Parliament agreed to that in exceptional circumstances. Some of us
oppose this legislation because we do not believe that there are
exceptional circumstances. Fraud is, sadly, normal; it is not abnormal.
Large-scale fraud happens, and it has happened over recent years just
as much as it happens at the moment. This is not a response to a
particular trend. We are therefore keen to ensure that Northern Ireland
is treated similarly to the rest of the UK and that it does not have
legislation going in two different and inconsistent
directions. Will the
Minister reflect on whether it might be better if the Government
accepted a view that is going to be expressed and voted on by Members
on these Benches? That is that this clause should come out of the Bill
and, if the Government want to make the case for this proposal for
Northern Ireland, they should make it in the context of the wider
debate—the wider legislative opportunity that will arise when
Northern Ireland criminal justice is debated, which we happen to know
will be in this
Session.
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