The
Solicitor-General: I fear that if the new clause is
pressed, we will end up voting on it, because it would alter the
criterion for determining an application under section 43. The question
would no longer be how the length and complexity of the trial would
affect the burden imposed on the jury, but how those factors would
affect the safety of the verdict. That would be a significant change,
because it has never been the Government’s position that there
are doubts aboutthe verdicts returned by juries in serious
fraud cases or that trial without a jury is necessary to
resolvethem. Rather, our position throughout has been that
section 43 is needed for the twin purposes of limiting the burden on
the jury in such cases and of enabling justice to be done by exposing
in court more fully the alleged criminality. The condition set out in
the new clause would render section 43
ineffective. I have
heard arguments advanced that other types of trial can last a very long
time, and of course they can. However, there is a particular history in
relation to serious and complex fraud cases that does not exist in
relation to those other types of case. It is not only that eminent
reports such as the Roskill report and the Auld report support our view
or that various representations have been made to Governments over
time; it is that there has been a series of cases. Reference was made
to some of the cases on which we rely. I shall talk about some of
them—there are others—in which problems arose, in which
there were burdens on juries or in which the full criminality of the
case was not able to be exposed. Some of the cases are older; some are
more recent. The first
case is R v. Cohen and others—the Blue Arrow
case—which was completed back in 1992. The allegation was that,
in effect, there was an agreement to rig the market. The case involved
complex evidenceon rights issues and the basis on which a
takeover by Blue Arrow of another company was structured. Defendants
were convicted of conspiracy to defraud and given suspended sentences
after a trial that lasted a year. The convictions were subsequently
overturned on appeal.
The prosecution had significantly
reduced the prosecution case before it came to court; that had already
happened in order to get the case before a jury. Even so, the trial
judge pruned the case further during the trial, greatly reducing both
the scope of the indictment and the complexity of the counts. The trial
judge ordered further deletions from the indictment between
counsels’ final speeches and the jury’s deliberations,
directing the jury not to consider the admissible evidence relating to
the deleted particulars. That was held to be a material irregularity by
theCourt of Appeal when it subsequently considered the
matter. Additionally,
the trial judge severed the case into two trials to make it
“manageable” for the jury. That still meant 10 defendants
facing trial together. On the burden experienced by the jury, the trial
judge, Mr. Justice McKinnon, said that no jury should be
asked to cope with what that jury had to endure. Following the appeal,
the Court of Appeal said that there was
“a significant risk of a
miscarriage of justice resulting from the volume and complexity of the
evidence.” It noted that
the jury retired with 956 pages of exhibits and such recollections that
they might have had of94 prosecution witnesses giving evidence
between seven and 11 months earlier and of counsels’ final
speeches having been delivered between 59 and 65 days
earlier. The Serious
Fraud Office’s view is that the pruning of the case and the
trial severance undermined the prosecution’s ability to present
a cohesive or coherent case. Measures designed to improve conditions
for the jury, such as two periods of extended leave over Christmas and
the summer, were said to have helped destroy the basic assumption that
a jury determines guilt or innocence on evidence that it is able to
comprehend and remember. It is not so much the jury’s
comprehension that was in question, but the sheer volume of the
evidence.
Mr.
Grieve: I appreciate the
Solicitor-General’s concentrating on complexity and length
rather than the new clause, which is about the impact on safety. The
Jubilee line case suffered massive interruptions. Notwithstanding that,
the evidence was that when the jurors were brought together in one room
some time afterwards and asked to recollect the case and the key
issues, they were able to do so with little difficulty. I suggest that
what the Solicitor-General says is mere hypothesis. The only evidence
we have, limited as it is, tends the other
way.
The
Solicitor-General: The hon. Gentleman
asked me to set out the arguments about the burden on juries. That is
why I am taking so much time. Members of the Committee will have to
bear with me, because it is worth the Government setting out some of
their concerns about that burden. We have never said that juries are
unable to understand such cases—what the hon. and learned Member
for Harborough (Mr. Garnier) called the stupid jury
argument. That is not the Government’s view, but we do think
that the burden on the juror and on juries is unacceptable in certain
cases and that, in those circumstances, we should be able to have a
non-jury trial.
The hon. Member for Beaconsfield
mentioned the Jubilee line case. In his report, Her Majesty’s
inspector of the Crown Prosecution Service questioned whether it would
have been suitable for treatment under section 43. In a sense, the
question of whether the case would ever have been dealt with in a
non-jury trial is moot. Of course, problems arose in the management of
that case and in the handling of the charges of conspiracy to defraud.
There were issues in relation to the illness of a defendant, and some
on the disjointed handling of evidence. More particularly, the problems
that arose in relation to the Jubilee line case that were exposed in
the inspector’s report related to the impact of the long trial
on the lives of a number of the jurors. The jurors found that when they
returned to work their promotion had been affected, their relationship
with their employer has been affected, or the way in which they were
able to deal with business had been affected, and the burden on them
was significant. I am not sure that the Jubilee line case entirely
proves either of our points, although it does give some evidence on
both sides of the argument. Yes, the jury in the Jubilee line case gave
clear evidence that it understood the case, which was very complex, but
it also said that there was a burden on
individuals.
Simon
Hughes: That point I have accepted, and it is agreed
throughout the Committee and the House. Will the Solicitor-General
either tell us now, so that it is on the record, or check later, first,
whether he has figures that show, for the period before and after the
Jubilee line case, which was the one that gave rise to all sorts of
reports, how many cases dealing with fraud have taken more than three
months, six months or—I am trying to ask the question that
allows the easiest answer, if the information exists—a similar
period, and, secondly, whether the same figures exist for that period
across the criminal courts generally? Obviously the burdensome point
will apply in those cases too, because of the length of time away from
normal life. It would be helpful for the debate, as much now as on
Report, if there were figures that showed how many criminal trials in
21st century Britain—or at least England and
Wales—currently exceed the three, six and nine-month
hurdles.
The
Solicitor-General: It might be useful to refer to the
Serious Fraud Office’s annual report for 2005-06, which
says: “In this
year ten trials were completed including23 defendants, among
whom 13 were convicted and ten
acquitted”. I shall have
to come back to the hon. Gentleman on the number of trials that lasted
longer than six months. I have the figures, but it will take me a
moment or two to look them up, although I hope to come up with them
shortly, as I quoted them in the debate that we had in the Chamber and
they are in the
transcript. I
want to take some time to consider those cases in which there was a
burden on juries, because it is important to set out the
Government’s views in relation to them. Another case that comes
to mind is the Maxwell case, which is I am sure is known to all right
hon. and hon. Members. The indictment alleged eight separate
conspiracies to defraud involving combinations of six defendants, plus
two substantive counts of related false accounting.
The Maxwell brothers were acquitted in 1996, after the first trial
lasting seven months. The second trial was stayed as an abuse of
process. The prosecution had significantly reduced the prosecution case
before it came before the court. Even so, the trial judge severed the
case for trial management purposes and further reduced the number of
counts put forward by the prosecution. The trial judge remarked
that “the prosecution and
most of the defendants are agreed that, were it practicable, all the
counts should be the subject matter of a single trial ... all are
agreed that the length and complexity of such a trial would far
outstrip the capacity of any
jury”. Following
acquittals in the first trial, the judge due to hear the second trial,
Mr. Justice Buckley, stayed the proceedings on grounds of
abuse. He
noted: “When
using his powers of severance the trial judge recognised that it would
prevent the prosecution from putting before the jury the full weight of
the case”. He added that
to accept the submission that the second trial should not take place
would be “to accept that
in a serious and complex fraud, the limitations of jury trial prevent
the prosecution from presenting a case which fairly and adequately
represents the fraud alleged. If that is so, then jury trial is unfair
and
inappropriate.” In
the Da Costa case of 2004, a more recent case, the SFO decided to offer
no evidence on a conspiracy to defraud. The allegation was that the
suspects had been underwriting marine and other insurance on behalf of
an Italian company when they were not authorised to do so. I approach
the case with care, because I make no allegation in relation to those
individuals. The Crown offered no evidence in relation to it, and it
became clear that trying to present the complexity of the case would be
burdensome and difficult. The legal arguments and the trial
judge’s ruling, which suggested that the insurance contracts
would have to be proved separately and could not be relied on to prove
the illegality of the scheme as a whole, meant that the jury would be
required to grapple with the common law doctrine of ostensible
authority against a complex, highly detailed factual background
involving thousands of marine insurance policies. In other words, the
SFO decided not to proceed because the approach that was insisted on
was so complex and unmanageable for a jury. I repeat that I make no
allegation in relation to any of the defendants in that case, for
reasons that hon. Members will
understand.
7.15
pm I
have previously referred to the Talbot Village Trust case. The trust
was a charity. It employed professionals who, between 1985 and 1995,
fraudulently overcharged for professional services related to
construction works on major projects. Three of the five defendants were
convicted by a jury. On 26 March 2004, one three-year custodial
sentence was handed down, which was increased to six years on appeal
because of its undue leniency. There were two suspended sentences. The
trial judge ordered that the scope of the prosecutions be reduced for
trial management reasons. That included evidence that for contracts of
the construction company that was run by the acquitted defendants,
profit margins were substantially larger than would be expected of such
contracts. Even so, the trial lasted for 13 months. In many ways, that
is a typical example of a Serious Fraud Office case, in which numerous
individual transactions
have to be proved to establish dishonesty. The reduction in the scope of
the prosecution case made it appear disjointed in the view of the SFO
and undermined it in key areas, such as the establishment of
dishonesty. That is why I refer to that
case. Simon
Hughes: I am following carefully what the
Solicitor-General says and I understand the argument. What he has not
said is that there are cases with which prosecutors decide not to
proceed because they would fail the test of being convincing in front
of any tribunal. They would not be able to accumulate the evidence in a
way that a single judge, three judges, a jury or other people would
necessarily find convincing. That applies to all considerations of CPS
or SFO cases. Although the Solicitor-General makes a good point, it is
not persuasive that jury trial must give way so that those cases would
work in front of a single judge and be successful, where others would
fail and result in acquittal.
The
Solicitor-General: I hear what the hon. Gentleman says. He
asked me earlier about some cases; I shall give him the answer that I
did not have to hand then, before I deal with the substantive point.
Between 2002 and 2005, 26 trials lasted more than six months, of which
six lasted more than a year.
On the hon. Gentleman’s
point, the nature of jury trial requires the presentation of oral
evidence. By agreement with both parties, a judge may be able view some
written evidence in documentation, either before or during the
proceedings. He may be able to manage that documentation in a way that
does not require the substantial oral presentation that might be
necessary before a jury. Furthermore, defence or prosecution lawyers
may feel that they have to explain things fully to a jury and so
explain them at some length and in substantial detail. The judge,
however, may be able to say to the lawyer who is making his
presentation, “You have gone on too long. I understand your
point. Move on to the next one.” Some hon. Members on the
Government Benches may well feel that I am in that position now. That
is the how a judge can deal with such a
situation.
Mr.
Grieve: In my experience, it is always a dangerous moment
when the judge in a civil case says, “I understand that point;
move on.” One discovers subsequently that he does not understand
it at all and is saddled with a
difficulty. I will
touch on an important point that I mentioned on Second Reading,
although I did not get an answer. I can see that if the prosecution and
the defence agree to the acceptance of certain facts or material, the
judge might have an opportunity to consider them and so short-circuit
some of the oral evidence, but it must be clear that if the parties do
not agree, whether the trial takes place before a jury or a judge
alone, all the evidence must be laid in the usual way and read out if
necessary. Without that, it should not be on the record. Even if they
are agreed, it should still be on the record.
I am troubled by what
the Solicitor-General said, because I do not see where the short cut
lies. The logic of what he said is that some evidence not laid in court
could still be considered by the judge on his own. In my view, that
makes a fair trial impossible.
The
Solicitor-General: It is the case not only under Diplock
court rules but in civil cases that judges may consider documentation.
That is not secret; the documentation it is part of the pleadings,
documents and evidence in the case. However, in jury trials, the
documents will no doubt have to be explained at substantial length so
that juries are fully cognizant of the surrounding circumstances. If a
judge is known to be aware of those circumstances, a lot of that can be
short-circuited.
Mr.
Grieve: Will the Solicitor-General give
way?
The
Solicitor-General: Let me make this point. The hon.
Gentleman says that it might not reduce the length of some trials. I
accept that. On Second Reading, I accepted that because some trials
might not be severed—all the counts might be included rather
than being cut short and defendants might not be dropped off the end so
as not to make things too complicated for the jury—some cases
might well last longer than an individual severed case. However, the
judge would be able to manage much more effectively the volume of
material and breadth of the case and to deliver a fair verdict that
deals with the defendant’s full culpability without placing an
undue burden on 12 jury
members.
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