Simon
Hughes: We are in a different league of
debate, and I welcome it. Like the hon. Member for Beaconsfield, my
hon. Friend the Member for Somerton and Frome and I were aware, and it
was clear from the drafting of the advice, that there was a line beyond
which we could not go formally. The hon. Gentleman tried to get as near
to that line as he could, and again, I want to respond.
I, my hon.
Friend and our colleagues do not support the proposal, because we have
always argued that there should be a clear division between the person
who is in charge of judging the law and the people who arein
charge of judging the fact. Thus, the principle that in serious cases
facts and guilt are determined by lay people—representatives of
the public, not professionals paid to be judges—is kept. That is
Lord Devlin’s small Parliament, little democracy principle. It
is about having a criminal justice system that, whether in a
magistrates court with lay justices or in the higher courts with
juries, ensures that decisions about guilt and innocence involve the
public and are not handed over to
professionals.
7.45
pm I want to make
it clear that the new clause goes a step or two too far. It is,
however, a welcome probing measure that opens up discussion as to where
there might be common ground. In that context, let me outline some of
the options that I explored in conversations with the Solicitor-General
and the Attorney-General. It is in everybody’s interests that we
should do that openly and straightforwardly.
The first option that we
explored was to have smaller juries—juries of fewer than 12
people, possibly eight or even half a dozen. Why? Because if there were
a burden it would be a burden on a smaller number of people. The second
was to draw juries from a pool of people who would hold themselves
available for trials such as those that we are discussing, because that
would not be as burdensome for them as it is for others.
Certain categories of people
would be willing totake up that offer. Perhaps they could
answer a supplementary question about empanelling juries when they
filled in their forms to register on the electoral roll; then enquiries
could be made. We need to ensure that we do not end up with
representatives of only one section of the community, but one can
imagine that the offer might be taken up by people who are retired,
those who are unable to do paid work for a significant period following
injury and so on, and those who are willing to do it because they are
self-employed and can manage their lives accordingly. I do not say that
the principle is perfect, but it would be entirely possible to
construct an alternative pool of people for whom it was not a
burdensome task in the way that it might be for somebody who was taken
off the street, brought to the court and, out of the blue, told that
the case might last for nine months rather than the usual two weeks.
Both of those options are possible.
The third
option that we considered was one that used lay magistrates—not
trained lawyers or judges—as jurors. There would be a
professional judge, with the jurors separately as judges of fact. That
is a difficult argument to sustain, but it is worth considering. It
would, however, be a separation. Finally, we had conversations that
crossed the line in the direction of this new clause. That involved
having a judge plus other people sitting with the judge. There was a
discussion—I do not want to betray any confidences—that
involved including magistrates or assessors, that is to say experts or
lay people, in combination, so that one or the other or both could sit
with the judge. As the hon. Member for Beaconsfield indicated, they
would retire with the judge. I think that that goes too far, as I have
said. Therefore, my hon. Friend and I cannot support the new
clause. For us, it is
not an absolute principle that there have to be 12 people for a jury,
or that there has to be any particular number. The number has to have
sufficient weight or centre of gravity to be a group; I think that the
phrase is critical mass. It is also important that there should be a
distinction, so that the public can see that the defendant can know
that two functions are being addressed in the court: the assessment of
the law and the judgment of the facts. That, for us, is the principle.
Within those parameters, there is a conversation that we are still
willing to have and, I am happy to say, my hon. Friend and I are
willing to return to the matter.
If we went down that road, there
might be progress. It would not be technically a “fraud (trials
without a jury)” Act because there would be a jury. It would be
a “fraud (less burdensome ways of trying these big
cases)” Act and that is, according to the Government, one of the
objectives. It would also achieve the second Government objective:
there would not be the difficulty, if one accepts the
Government’s case, about exposing the potential breadth of
criminality. If one had selected, smaller numbers and more expert
jurors, it would be possible to sustain an argument that they were able
to look at anything that the prosecution was minded to give
them. We will not
support the new clause. It is worth probing the matter, if only to
encourage the Solicitor-General and the Attorney-General to think that
there may even yet be some ground that we could find
between us that might save quite a long process in this Session and
another quite long process in the next Session. It may be better to get
something done this year, rather than nothing being done this year and
a great battle with an uncertain outcome next
year. The
Solicitor-General: We have had substantial discussions on
this matter both privately and publicly, and I do not think it is
likely that we are going to get a compromise. I wish that I could be
convinced that Opposition Front Benchers would be likely to agree to a
compromise. The Government have made clear what our view is and
Opposition Members have done likewise. I do not think that there is
likely to be any room for the compromise that we have sought, which has
not been forthcoming.
The hon.
Member for Beaconsfield described, quite fairly, the new clause as a
probing measure. It was not favoured by Roskill or Sir Robin Auld in
the way he describes, but they both looked at it. Roskill recommended a
judge sitting with two lay members drawn from a panel of persons with
general expertise in business and experience of complex transactions.
Auld came to a similar conclusion but only, as he put it, after
considerable thought. As he acknowledged, the arrangement would not be
without its difficulties. What would be the role of the expert members?
Would there be a risk that members would contribute evidence that could
not easily be challenged by the parties? How readily could suitable
members be found? What would be the cost of remunerating them? For all
those and other reasons, the Government have decided that, on balance,
following the seminar and various representations made to us, the
option of trial by judge alone was preferable.
Sir Robin Auld had this to say
about special juries; it was referred to during the
debate: “The
proposal would revive for a special category of criminal case an
institution that was abolished in criminal and most civil cases in 1949
and had been little used in crime for several decades before that. If
the institution were to be revived for fraud and possibly other complex
cases the first question would be the nature of the qualifications
required for selection as a potential special juror. Presumably in the
context of fraud they would need to be those with wide experience of
business and finance. But, as the Roskill committee pointed out in
rejecting this option, it would be difficult to empanel a jury even
from such a restricted category who would collegiately have the degree
of specialist knowledge or expertise which by definition they would be
required to have for the particular subject in each case. And even if
suitably qualified jurors, maybe smaller than twelve, could be found,
it would be unreasonable to expect them to serve the length of time
that many such fraud trials now take.”
That deals with the points raised in
relation to special juries. It is from Sir Robin Auld rather than me.
In the Government’s view, it is a serious objection to a special
jury that evidence would have to be presented to it orally without the
interaction with counsel. It would not be possible, as it would be for
a tribunal or for a judge, for the jury of the sort described to let
the lawyers know that they had understood a point and that the lawyers
should move on—in other words, to be able to manage the case
themselves. The Opposition’s idea that the decider and the
arbitrator of a case must be separated would make it far more difficult
to manage. If a single judge were sitting, or a judge with perhaps two
lay assessors, he would be able to manage the case much more
effectively and its complexity could be properly evaluated. That would
not be the position
in the case of a special jury or in the system proposed in the new
clause. I appreciate that it is a probing new clause, and I hope that I
have given views on the points raised and that the motion will be
withdrawn. Mr.
Grieve: I am grateful to the Solicitor-General for
participating in the debate in the spirit in which the new clause was
tabled and for dealing with the wider issues that I raised on special
juries. I wish to pick up on two or three points, because there are
matters on which I disagree with the Solicitor-General and with Sir
Robin Auld and Lord
Roskill. It is
suggested that one of the objections to specialist lay assessors is
that the extent to which they would bring their own knowledge to bear
on a case would be unclear. But that happens all the time with jurors,
who are entitled to bring to the jury box their own knowledge and
experience of the world. Some of them have specialist knowledge, and
that is explicit in barristers now being allowed to serve on juries. If
they get on to the jury, which sometimes does not happen because they
know the judge, defendant or a counsel, they certainly have a knowledge
of court procedure. That includes occasions when a jury has been sent
out for some reason, so they have a pretty good idea of issues that
require a jury’s non-attendance. That does not seem to trouble
the Government, and it does not really trouble me much. I do not
consider the fact that lay assessors might have background knowledge of
the areas covered a viable
objection. On special
juries, if the Solicitor-General would like to come my constituency, he
will find a plethora of
retired—
The
Chairman: Order. I hope that the hon. Gentleman will be
very brief and sparing in his remarks about special juries. I know that
some comments on them have already been made, but, strictly speaking,
if he were to dilate upon the point, he would be in danger of
addressing a new clause that some might wish we had to consider but
which we do not, rather than the one that we do
have.
Mr.
Grieve: I can promise you, Mr. Bercow, that I
shall be very brief and only respond to the Solicitor-General’s
helpful comments. If
the Solicitor-General comes to my constituency, he will find a plethora
of retired chartered accountants and professionals, many of whom would
be only too happy to give some of their time, particularly as many of
them took early retirement when pensions policies were rather
different. They would be happy to devote time to considering the
matters in question, and would do so well. I simply do not accept that
it would be impossible to find panels of individuals capable of doing
the job. I have said
clearly that this is a probing new clause, and I am grateful to the
Solicitor-General for responding in its spirit. There may well be no
meeting of minds on the matter, for the reasons given by the hon.
Member for North Southwark and Bermondsey. I agree with him—the
approach in the Bill does not commend itself to me. I have said, out of
conscience if nothing else, that if the Government’s anxiety is
about the difficulty and burden on ordinary jurors, we can do
something about that. I hope that the Government will continue to
consider the issue. I beg to ask leave to withdraw the
motion. Motion and
clause, by leave,
withdrawn. Question
proposed, That the Chairman do report the Bill to the
House.
The
Solicitor-General: On a point of order, Mr.
Bercow, I extend the Committee’s thanks to you as Chairman. Due
to the firmness of your chairmanship, not only was good order
maintained but we were able to have a full debate and finish the
Committee early. We are grateful to you for that.
I also extend my thanks to the
Under-Secretary of State for the Home Department, my hon. Friend the
Member for Enfield, North, for her efforts duringthe passage
of the Bill. I also thank my hon. Friend the Member for Tynemouth, who
is the Government Whip and other members of the Committee from all
parties, especially my hon. Friend the Member for Coventry, South, my
Parliamentary Private
Secretary. I also thank
the police, the attendants and, most importantly, as they ensured that
I was able to deal with the issues, those officials who were kind
enough to give me such excellent briefing. I also extend my thanks for
the very considered way in which the Opposition spokespersons, the hon.
Members for Beaconsfield and for North Southwark and Bermondsey, and
their colleagues made their
points. I give
particular thanks to the right hon. and learned Member for Sleaford and
North Hykeham, who after many years as a Back Bencher might have got a
Minister to look at something again. Whether he gets the result he
wants remains to be seen.
Mr.
Grieve: Further to that point of order, Mr.
Bercow, may I echo the thanks expressed to you and to the officers of
the House who have made this
Committee so pleasant and enabled us to get through the business so
expeditiously? I extend my thanks to the Solicitor-General and to the
Minister for the spirit in which they entered into the debate. I give a
special thanks to my right hon. and learned Friend the Member for
Sleaford and North Hykeham, who played a very important part in the
debate, to other hon. Friends and to the other Opposition
parties.
Simon
Hughes: Further to that point of order, Mr.
Bercow, I associate myself and my hon. Friend with those remarks. I add
my thanks to our friends from Hansard whom the Minister may
accidentally, but not intentionally I am sure, have omitted to mention.
Rarely can such serious business on such important issues have been
conducted so quickly. It was due to our having a short Bill that did
not allow many
amendments.
The
Chairman: I am very grateful to the
Minister and the Opposition spokesmen for their generous remarks about
my role and, more importantly, about the wider contributions to the
efficacy of this Committee. I want briefly to place on the record my
personal thanks to the principal Clerk of the Committee, Dr. John
Benger, ably assisted by Dr. Hannah Weston and Emily
Commander. I reiterate
the thanks properly expressed by the hon. Member for North Southwark
and Bermondsey to the Reporters, without whom we would not have a full
and accurate record of our proceedings and whose contribution in that
sense is literally indispensable. Tony Minichiello, Ken Gall and
Adèle Dodd have done a magnificent job and I am very grateful to
them. As I was obliged
to do, I allowed points of order to interrupt the process. I will now
put the
question. Question
put and agreed to.
Bill to be reported, without
amendment. Committee
rose at four minutes past Eight
o’clock.
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