Fraud (Trials Without a Jury) Bill


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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.
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 5

Expert 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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Prepared 13 December 2006