Mr.
Grieve: To pick up on the first point about documents, in
the jury trials with which I have been involved, voluminous documents
were placed before the jury. Not all the documentation is explained in
the course of the trial, but the documentation on which the parties
rely must be explained and considered and individual paragraphs
identified as key in documentary evidence so that the jurors can
highlight it to consider
later. I do not really
see that the procedure will be any different with a jury than with a
judge, except that in terms of opening speeches, it might be possible,
as has been said, for the judge to say, “I understand that
point,” whereas prosecutors tend to go over ground carefully if
they think that they are touching on areas of complexity. It worries me
that the very long cases that I envisage will come out of the
legislation might be burdensome to judges and lead to difficulties with
verdicts and a lack of
clarity.
The
Solicitor-General: Judges do a very good job for us and
are very well paid for it. If they must take something of a burden in
handling complex and serious frauds, that will perhaps be an instance
in which they earn their salary. I shall not worry too much about that.
It is incumbent on Members, however, to consider members of the public
whose lives may well be significantly affected by the burden of having
to sit ina serious and complex fraud case for a period of a
year or more. We know from the Jubilee line case thatthat can
affect their employment status and their circumstances, and we should
not ignore that
burden. I was going to
elaborate further on the Versailles case, the Global Wildlife Trust
case and the PA spiral case, but in view of the time and the length of
my submissions I shall spare the Committee that. Nevertheless, the
burden on juries can be serious, and
we must ensure that it is recognised. The new clause proposed by the
right hon. and learned Gentleman would change the terms of the
judge’s decision, and would do so in a way that the Government
do not find acceptable. It is axiomatic that no judge will make a
decision that he believes to be manifestly unsafe to the delivery of
justice—that is a broader consideration that judges will always
have. It is
important to set out in statute the reason for the Government’s
view that change must be made. The reason is clear: change is necessary
because we need to ensure both that the burden on the jury is not
disproportionate and that justice is properly done through exposure of
defendants’ full culpability in complex and serious fraud cases.
I hope that my references to older cases, despite being truncated, have
demonstrated that judges who have to deal with such circumstances are
very concerned about that burden and about the effect it has on
presenting, handling and managing the case. The SFO, which has to
prosecute the cases, is very concerned that the requirement to present
complex and detailed evidence orally to the jury makes it difficult
properly to set out a case to that jury. That has resulted in severing
of cases, reducing of counts, and knocking off of some defendants from
the end of charge sheets, none of which delivers justice
effectively. I accept
that there are similar problems in some other types of case. However,
complex and serious fraud cases have a long history of recommendation
after recommendation, of judges calling attention to matters, and of
Governments not—until 2003—doing enough about the
problem. We are now intent on doing something about it. Justice needs
to be
delivered.
Mr.
Hogg: The hour is getting late, and I should not be
surprised if, at the conclusion of the debate on the new clause, you
might feel it appropriate to adjourn, Mr. Bercow. It is a
matter entirely for the Committee, so I shall lighten the
grief.
Let us keep in
mind what we are about. We are trying to define the criteria that would
justify a judge-alone trial. The Solicitor-General has advanced at some
length the arguments in favour of the existing provisions in the
Bill—which may be described as the “burdensome”
provisions. I am bound to say that I do not agree with him, which is
very largely because an unfortunate precedent would be set that would
apply to other types of trial. I am realist, however, and I know full
well that the Government have the majority on the Floor of the House
and that they are clearly determined to push the idea forward. I think
it is a bad idea, but so be it—that is the nature of
parliamentary life. We
are also, however, in the business of improving legislation, and when
the Solicitor-General was talking a thought occurred to me that I need
to share with the Committee. If I may catch the
Solicitor-General’s attention, I hope that he will reflect on
it. We have accepted the possibility that the defendant will be
entitled to apply for a judge-alone trial, and one has to define the
criteria that will govern that application. The defendant might make an
application on the grounds of burden, and of course subsection (5) of
section 43 enables him to do so. But he might also make an application
on the grounds that the length and complexity of the trial are likely
to impact on the safety of the verdict.
7.30
pm The
Committee was good enough to listen to two examples that I produced,
one of which received support from the hon. Member for Somerton and
Frome. In one example, the detail of the case was such that it might
impact on the jury’s verdict; for example, so much
interpretation or translation of documents was required that the jury
might well become confused, and that would impact on the safety of the
verdict. If the defendant is making an application for a judge-alone
trial, he must be able to say why, but the reason might not be
burdensomeness. It might be the one that I just advanced, at which
point the impact on the quality of the verdict should be a
criterion. The
example that the hon. Gentleman picked up on—perhaps I advanced
it less clearly than he did—was when the concept of the defence
is so difficult that it might itself impact on the safety of the
verdict. He said, and I entirely agreed with him, that there will be
cases where one is on the margin between what is illegal and what is
questionable. At that point, a defendant may say to the judge,
“This is such a complicated concept, and it involves so much
history and so many details, proprieties, cross-national jurisdictions
and this and that that a jury will not be able safely to come to a
verdict.” The defendant might wish to use a concept of that kind
to seek a judge-alone
trial. Therefore, on
the basis of improving what I do not like, I am saying that if we must
have the concept of burdensomeness, which I do not like, and given that
the defendant might make an application, we should reflect on the need
for criteria that go to the quality of the verdict on which the
defendant can rely when making an
application.
Stephen
Hesford: Given the late hour, I would
ask the right hon. and learned Gentleman to come clean with the
Committee. The new clause is tendentious. He does not believe that the
jury can be impugned in its deliberation in a case. Neither do the
Government believe that, yet he wants a defendant to be able to make
that argument in order to get a non-jury trial. In fact, the
prosecution will never make such an application to a judge because the
Government and the Crown do not believe that the deliberations of a
jury can be impugned. This is a wrecking
amendment.
Mr.
Hogg: The hon. Gentleman is a confused and confusing
Member. I do not like the Bill or the concept of burdensome—I do
not make any bones about that. But we are where we are, and I am making
some suggestions as to how the Bill might be improved. The
Solicitor-General has been good enough to say that he will reflect on
the desirability of the defendant’s being able to make an
application for a judge-alone
trial. My
point is that the defendant may do so on the basis that the trial is
likely to be burdensome to the jury, but he may have other reasons
which go to the safety of the verdict. Those other reasons are not
reflected in the Bill or the Act as it is now. Once we accept that the
defendant might be able to make an application for a judge-alone trial,
we must ask what the criteria will be—and they are not confined
to being burdensome. That was my only point, which I think that the
Solicitor-General has understood even if the hon. Member for Wirral,
West has not. I know that other members of the Committee, on the
Opposition Benches, at least, have understood it.
Given that I
am in favour of improving the Bill, I am perfectly prepared to accept
that my new clause does not go as far as I now think that it should.
Because there is merit in giving careful reflection to what I am
saying, with the leave of the Committee I beg to ask leave to withdraw
the new clause. Motion and
clause, by leave,
withdrawn.
The
Chairman: I should tell the Committee at this point, in
response to the observation made by the right hon. and learned Member
for Sleaford and North Hykeham a few moments ago—that I might at
this point seek adjournment of the sitting—that I have no
intention of doing so. We have only to deal with one further new clause
and I should have thought that the Committee would therefore wish to
persevere.
New Clause
5Expert
assessors ‘(1) The Lord Chief
Justice shall appoint six assessors drawn
from— (a) the Royal
Institute of Chartered
Accountants, (b) the Society of
Actuaries, or (c) other persons
prescribed in regulations made by the Lord
Chancellor to determine, with
the judge, the facts of fraud cases conducted without a jury under
section 43 of the Criminal Justice Act
2003.’.—[Mr.
Grieve.] Brought
up, and read the First
time.
Mr.
Grieve: I beg to move, that the clause be read a Second
time. I shall
endeavour to be brief, seeing that this is the last new clause that we
have to consider in Committee.
I
must first confess to the Committee that when I went to the office to
present amendments to this Bill for consideration, it was my desire
that the Committee might debate having trials by special juries. The
Solicitor-General knows well that we on these Benches were always
prepared to consider that one area of compromise to deal with the issue
of burdensomeness. I believed that it would be possible to put together
jury panels consisting of individuals who were well versed in financial
matters, which would allow them to sit on such panels and consider the
verdict—because I regard having an independent assessment,
separate from the judge, as so important for preserving confidence in
our criminal justice system. We should maintain the principle that it
is not the state against an individual, with the judge reaching a
decision, but independent members of the community who decide on guilt
or innocence.
That would
have been my preferred course. Yet although I sought as ingeniously as
I could to suggest variously using the terminology
“panel”, or “group of experts”, or any
other device, I discovered that—despite all my creative
ingenuity—those better versed in drafting would tell me firmly
that it could not be done, as the principle at Second Reading was that
we were getting rid of juries. Even a special jury was a jury: even a
“special panel” was a jury by another name. So, I regret
that I have not been as successful as I would have wished in providing
an opportunity for the Committee to revisit that issue.
I must put on
the record that I believe there was always the possibility of
compromise on such a principle, including a potential departure from
having 12 to have a smaller panel. I am convinced that if this is a
real area of difficulty, that would be the wise way to proceed. There
are plenty of people of the right age around, being semi-retired, who
could make up such a panel and be only too happy to spend months poring
over a case that was forensically interesting to them. They would also
have the independence to deliver a verdict that would command public
acceptance and confidence.
Seeing as I could not do that,
the only thing to do was to put before the Committee the proposal that
the judge should sit with assessors. That apparently is permissible, as
they would be with—and retire with—the judge, and the
judge would still have a role in the verdict. I must accept one point:
if the motion were to proceed, it would need fleshing out. On the basis
of what I have tabled, I accept that it is not clear whether there
would be a majority verdict or a casting vote from the judge, and that
other details would need further examination. The only merit of the
proposal is that the final decision is not that of the judge on his
own. If a judge were to sit with a panel of six assessors, there would
have to be unanimity or a majority, or a straight majority with a
casting vote from the judge if there were a three-three split on guilt
or innocence at the end of a trial. The proposal has, however as I say,
the merit that the judge’s role is diluted, and that the role of
the independent assessors, suitably selected, is enhanced.
I should be grateful for the
Government’s response—it is a probing motion—about
why such a course of action does not commend itself. It would be useful
for the Committee to know at what point the Government decide that the
introduction of lay assessors becomes impossible. The Solicitor-General
knows—I do not think that I am giving away any
secrets—that on occasion, there have been hints from the
Government that some form of lay assessor might be acceptable.
Generally speaking, however, they have been talking about two lay
assessors and a judge. That is an uncomfortable concept, because it
does not have the necessary critical mass; I should prefer more
assessors. Again, I hope that I can tease out of the Solicitor-General
the Government’s views on the gist of the proposal, its
principle and its detail.
I want to make it clear that in
moving the new clause, it is in no sense a preferred option. It makes
absolutely no difference to my hostility to the Bill, nor I suspect to
the outright hostility that will occur in another place, too. There
would be a way forward—a way forward that I rather sought to put
before the Committee. Unfortunately, however, the Government’s
implacable desire to get rid of trial by jury makes it impossible for
us to consider it, which I regret. Even at the eleventh hour and
fifty-ninth minute, if the Government were wise, they might reconsider
that issue.
Mr.
Hogg: On the question of lay assessors, I entirely agree
with my hon. Friend about critical mass. Two or three lay assessors is
not a critical mass. Again, in the spirit of trying to improve the
imperfect, he will keep in mind the Crown court when it acts as a court
of appeal from justices. There, one sometimes has a Crown court judge
sitting with two justices, and that might be a model on which one could
proceed if we have to go down this road at
all.
Mr.
Grieve: Yes. As I say, the Government have not come up
with the proposal, although in the past they have floated it. In
fairness to them, the proposal has on the whole received a frosty
reception from the Opposition parties. However, before it was too late
and we ended up with what I anticipate will be a great confrontation
between the Lords and the Commons, I wanted to tease out how far the
Government’s give might go on such an issue. If I may say to the
hon. and learned Gentleman, the Solicitor-General, I do so in a
conciliatory spirit and not to wrong-foot him.
I appreciate
that the Solicitor-General may disagree with the principle of the
proposal or with the number of lay assessors, and that he may come up
with arguments, which I prefer to have on record, about why the course
of action is considered impractical, unwise or unnecessary. However, I
should not wish this Committee to be completed without our having an
opportunity to consider the motion.
I shall now sit down. My one
regret is that we have not had the opportunity of considering a
proposal for special juries, which would commend itself to me so very
much
more.
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