Mr.
Heath: The Solicitor-General’s intervention was
extremely helpful in shortening our proceedings. It is clear to me that
section 45 of the original Act deals with the opportunity for parties
to make oral representations to the judge, but only in the first
instance, and that the provisions of section 43 are dependant on
section 45, so a judge could not come to a view on the basis of an
application under section 43 without taking account of section 45.
Therefore, I think the point raised by the right hon. and learned
Gentleman is entirely covered by existing legislation.
There remains the right hon. and
learned Gentleman’s view that it should be possible to make oral
representation to the Lord Chief Justice in the certification of the
decision on the application. I am not entirely convinced that that is a
satisfactory procedure in this instance. There may be exceptional
circumstances when the Lord Chief Justice might be prepared to
entertain direct applications—perhaps if a judge has misdirected
himself or herself on the basis of the application—but in
general, I would expect that to be dealt with by written evidence
before the Lord Chief
Justice. The right hon.
and learned Gentleman has raised an interesting point, but I am not
sure whether I could support him if he proceeded to a Division on the
motion. I should be grateful to the Solicitor-General if he gave his
view on whether I have accurately described the
situation.
Mr.
Grieve: I, too, am grateful to the
Solicitor-General. I certainly understood—my memory is engraved
with all the sections, even from 2003—that oral representations
could be made. However, I perhaps differ from the hon. Member for
Somerton and Frome: I certainly think that the possibility should be
preserved for oral representations to be made to the Lord Chief Justice
at the end of a certificating
process. I do not want
to labour the point and I do not want too convoluted a system, but I
have said in the past that I want jury trial to be preserved in so far
as possible. To achieve that, at every stage when a prosecutor is
making his application—if we were to move to a situation where a
defendant could do it as well, I would wish it also to be preserved at
every stage—the line of reasoning should be, wherever possible,
that a jury trial should happen. For that reason, I had always
understood that the Lord Chief Justice’s role was an important
safeguard, and although I would normally agree that it would be
appropriate for that to be done by written submission if necessary, the
possibility of it being done by oral submission is important, and I
should like that option to
remain. The
Solicitor-General may say that the option exists without further
amendment, in which case I shall be reassured, but it is an issue of
some importance and we must face up to two facts. First, in the
Government’s view, the number of cases in which such things will
happen in any year is likely to be pretty minimal. Therefore, I do not
think that the burden that we will place on the judiciary in the
process of deciding whether it should happen will be too great.
Secondly, the decisions, when taken, will be of some public interest.
For that reason, it is important that there should be a full
understanding by the public of what has happened, and oral hearings
often provide an opportunity for that to
happen.
Mr.
Heath: I am studying again the words of the new clause. I
do not see that it provides for any further opportunity to make oral
representations to the Lord Chief Justice; it simply requires the Lord
Chief Justice not to give approval in circumstances in which any party
has not had the opportunity to make oral representations before the
judge under subsection (3A). Therefore, the matter remains entirely
permissive on the part of the Lord Chief Justice, rather than by
prescription of the new clause.
Mr.
Grieve: That it is a matter of drafting. Those of us who
draft for Committees are always happy to be told that we are wrong. It
was the intention of subsection (3) to do precisely that. If it has not
achieved it, that is another matter. I wait to hear from the
Solicitor-General whether the new clause has not achieved its purpose.
In any event, the intention is that there should be an option for oral
representations to be made to the Lord Chief Justice. I leave it at
that.
The
Solicitor-General: It is not intended that the Bill should
oblige the Lord Chief Justice—or the president of the
Queen’s bench division who, in practice, might consider these
matters in person—to hear oral representations. It is, however,
the view of the president of the Queen’s bench division that the
manner in which he—it is likely that he, rather than the Lord
Chief
Justice, will deal with such applications—hears the applications
should be a matter of judicial discretion. If appropriate, provision
for representations to be made in writing or orally could be set out in
criminal practice rules or other guidance. Therefore, I suggest that we
leave the matter to judicial discretion.
The arguments
might well be able to be put by the various lawyers in a
case—both for the prosecution and for the defence—before
the judge who initially hears the application. He will be able to make
a note of the arguments, and if they are straightforward, the president
of the Queen’s bench division or the Lord Chief Justice might
well take the view that those representations are adequate. The
president might, however, take the view that he wants to hear oral
representations. The request is that that be left as a matter of
judicial discretion. That might not be appropriate in all cases; I do
not say that it would be inappropriate in any case.
I hope that the right hon. and
learned Member for Sleaford and North Hykeham will be able to accept my
position in dealing with the substance of the argument that he puts
forward. I think that I have dealt with the first part of the new
clause, and I am grateful to him for having accepted that. So far as
the last part goes, I think that he will agree that it does not achieve
what he intends it to achieve.
Mr.
Hogg: I take responsibility for the new
clause, because it is in my name. However, a small error has been made
during the reduction into the blue paper of my original drafting. It
was my intention, as formulated in my draft, that the Lord Chief
Justice should give an opportunity for oral representations before he
gave his approval. I certainly accept that, in the form to which it has
been reduced on the amendment paper, it refers to an application to a
trial judge. I take responsibility for that, because anything that
appears under one’s name is one’s
responsibility. 6.45
pm
The
Solicitor-General: I am grateful to the right hon. and
learned Gentleman. I cannot accept the new clause, but I hope that he
accepts that I have sought to deal with the substance of his arguments.
I hope that he will withdraw the
motion.
Mr.
Hogg: I accept that the new clause is imperfect, and I
apologise to the hon. Member for Somerton and Frome, who was right. I
was looking at my original draft of the new clause and had not spotted
that the final version does not faithfully reflect what I had in mind,
but the fault is mine. It is important for the Lord Chief Justice, or
the judge nominated by him, to have judicial discretion to entertain
oral representations if he thinks it appropriate. I believe that the
Solicitor-General has said that that will be the case. I should be
happier if the Bill contained something to that effect. That would
concentrate the minds of the judiciary when they came to issue their
practice direction. Although I welcome what the Solicitor-General has
said, I ask him to reflect before Report on whether the language could
be modified to make it plain that the Lord Chief Justice will have
discretion to hear oral representations.
Mr.
Heath: Having been slightly critical of the drafting of
the new clause, perhaps I am necessarily critical of the intention
behind it. However, I agree entirely with the point that the right hon.
and learned Gentleman has just made. Considering that the
Solicitor-General clearly intends such discretion to exist, it would be
helpful if that were stated in the Bill. I hope that he will introduce
that on
Report.
Mr.
Hogg: I can only echo what the hon. Gentleman says, and I
hope that the Solicitor-General will reflect carefully on the
desirability of reaching a compromise without the need for unnecessary
votes on Report. I beg to ask leave to withdraw the
motion. Motion and
clause, by leave,
withdrawn.
New
Clause
4Conditions
to be satisfied ‘In section
43 of the Criminal Justice Act 2003 (c. 44), for subsection (5)
substitute— “(5)
The condition is that by reason of the complexity or length of the
trial, or both, and their likely impact on the safety of the verdict,
the interests of justice require that serious consideration should be
given to the question of whether the trial should be conducted without
a jury.”.’.—[Mr.
Hogg.] Brought
up, and read the First
time.
Mr.
Hogg: I beg to move, That the clause be read a Second
time. The new clause is
an important safeguard. I concede at once that its purpose is to redraw
the test set out in section 43(5) of the 2003 Act. The hon. Member for
North Southwark and Bermondsey mentioned that test. I wish to discuss
the criteria on the basis of which a judge-alone trial is to be
ordered. As the Bill stands, a judge-alone trial will be ordered when,
by reason of complexity or length, a trial is likely to
be “so burdensome upon the
jury that the interests of justice
require” and so
on. The attention of
judges is therefore drawn to the burden on the jury caused by either
complexity or length. On Second Reading and in the debate on the 2003
Act, Ministers said time and again that, for the most part, they were
not seeking to assert that such cases are so difficult that a jury
cannot comprehend what is going on. They are concentrating on the
burdensome nature of such trials, which is not peculiar to fraud cases.
Many classes of case could be said to be burdensome by reason of
complexity or length. Terrorism trials are cases in point—there
have recently been very long trials—as are conspiracies to
import drugs. Trials can be very lengthy and complicated. The same is
true of multi-handed affrays, for which trials can be very long and
could therefore be said to be
burdensome. Once
the concept of burdensomeness as a result of complexity and/or length
has been introduced, that asserts a principle that drives a coach and
horses through our commitment to jury trials. Once that precedent is
established, it will be difficult to say that there is no argument for
doing away with jury trials in terrorism, affray, conspiracy and other
cases. I strongly object to a test based on the burdensome nature of
trials, because it establishes an unfortunate precedent.
I have
therefore tried to apply a different criterion. Generally, I do not
think that a jury would find it too complicated to determine a trial,
but I am prepared to acknowledge the possibility. If a case arises
whose complexity and length impugns the safety of the verdict, that
seems a situation where the Committee might look favourably on a
judge-alone trial. I have already given examples of how that situation
might work in a defendant’s favour, as did the hon. Member for
Somerton and Frome. I strongly resist the proposition that we should
rely on the burden placed on the jury. However, in a small number of
cases, because of complexity or length, it might be proper to consider
whether or not a verdict is safe. That is a different approach, and I
commend it to the Committee.
It is unlikely that there will
be many such cases, but I do not exclude the possibility that there
will be one or two every so often. Therefore, I hope that the Committee
will give favourable consideration to what I admit is a redraft of the
criteria set out in section 43(5) of the 2003
Act.
Simon
Hughes: I am sympathetic to the right hon. and learned
Gentleman’s argument, and he has given reasons for it. The most
important issue for us to face could have been the burdensome
consequences of trials for juries. The Liberal Democrats think either
that that is not the case, that the burden on juries is not unique to
fraud trials or, if it is, that it has been partly dealt with so that
such trials will be less burdensome. For one, another or all of those
reasons, we do not think that there is a reason for moving to a
different sort of trial.
This is a more substantive and
well rounded point. An experienced judge would be well able to consider
it. Bluntly, it is on a different level from the pragmatic, functional
matter of length of trial, documentation and number of witnesses. It
relates to what we in this country train and employ judges to
do—they are all trained now, and well trained—which is to
conduct a trial that, in the end, proceeds fairly.
There is a danger with complex
trials. They could be complex trials for offences of affray, which is
halfway down the league table of seriousness, or for terrorist
offences; they could be complex trials involving detailed forensic
evidence for offences of serious assault, homicide and so on, which can
be burdensome because of the trauma to the jury and witnesses. The
danger is that, for all sorts of reasons, the verdict might not be
safe. Juries are
confronted with the issue of how to ensure that they bring in a safe
verdict. Juries are told over and again by the judge in summing up that
they have to be satisfied that they are sure beyond a reasonable doubt.
The right hon. and learned Gentleman made the point that such a verdict
may err on the side of acquittal rather than give a verdict that was,
as it were, just over the line of being persuaded. The test is much
higher. The bar is much higher because we do not want thisto
be a country in which convictions are thought tobe dubious,
questionable, marginal or any other appropriate adjective. We have
unanimous verdicts, but in exceptional cases, verdicts of 11 to one or
10 to two.
New clause 4 is a
serious and more rounded proposition, and is worth considering. To be
fair to the Solicitor-General, it deals with an issue that has been
reasonably addressed, whereas the issue of burdensome consequences has
not been, for reasons that we have talked about—not least the
procedural changes. I would be interested to hear his comments. My hon.
Friend the Member for Somerton and Frome and I do not have a definite
view, but if we must have a test for a trial to be conducted without a
jury, we are sympathetic to the one in new clause 4. It may be a
better, safer and more rounded test than the one in the current
legislation.
Mr.
Grieve: I welcome this opportunity to look at new clause
4. It is a probing new clause to tease out the reasons why the
Government think that jury trials might not be satisfactory in very
long cases. There is a slight sense that we sometimes avoid the nub of
the matter. The Government argued that very longtrials are
burdensome on juries, but, of course, some very long, non-fraud trials
will continue to be burdensome.
At the same time,
although we have always accepted that trials are burdensome, evidence,
such as that from the report into the Jubilee line case, does not
support the view that juries cannot hear such cases, although,
admittedly, our pool of information is limited because of the
difficulty in interviewing juries. Personally, in my experience of
fraud trials, or, indeed, trials in general, verdicts have never been
inexplicable or appeared perverse. It is true that, on occasions, I
have seen people acquitted when I might have taken a different
view—that tends to happen when one is prosecuting—but I
have never felt that the jury had done something plainly wrong or that
there was no material on which it reached its decision. That is one of
the reasons why I have so much faith in jury
trials. When
applying my own experience, however, perhaps I should be more concerned
about whether I have ever had a case in which a guilty verdict was
returned and I was worried because I thought that the defendant ought
to have been acquitted. We know that such cases happen and, of course,
those are the ones that get overturned in the Court of Appeal with the
wonderful words of the appeal judge: “We feel that there is a
lingering doubt”. However, statistically, such cases are few and
far between and in my professional experience I hardly ever encountered
them. When we ask why
we should get rid of juries in long fraud trials, we come to some
difficult issues, on which my right hon. and learned Friend the Member
for Sleaford and North Hykeham touched. He raised the question of
whether the truth was not simply that the Government want to get rid of
juries in long fraud trials because they believe that they will secure
a higher rate of conviction. They are wrong. I do not believe that that
is likely to
happen. There is a
final possibility. If jurors are forced to remain in court for a very
long time listening to a fraud trial, might that make them prejudiced
against the defendant to such an extent that they would, at that stage,
lose sight of their duty, so that the safety of the verdict could be
impugned?
7
pm These are quite
difficult areas. I see this as a probing new clause designed to tease
out what the Government really think. If they have faith in the jury
trial system—they are always repeating that they do—they
have no reason to feel that jury verdicts are less safe than any
others, and I think that that is their stated position. Do they feel,
however, that in long trials the safety of the verdict can be called
into question? If so, would the Solicitor-General like to tell us
why? I personally take
the view—I can only repeat it—that on the whole jury
trial delivers a very high quality of justice and does so in a way that
is transparent, that the public have come to accept and that, for the
reasons given by my right hon. and learned Friend the Member for
Sleaford and North Hykeham, is seen to be fair and to provide a
safeguard against state oppression—a safeguard that is so
important. If the
Solicitor-General has other views, this is our opportunity in Committee
to understand what exactly is troubling the Government about long
trials. Is the issue anything other than just the burdensomeness to
jurors of having to attend court for a long
period?
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