Clause 2
Fraud (Trials without a Jury) Bill
12:00 pm
Douglas Hogg (Sleaford and North Hykeham, Conservative)
On a point of order, Mr. Bercow, I would appreciate some guidance. Clause 2 amends section 43 of the Criminal Justice Act 2003. The new clauses, for the most part, seek to do precisely the same thing but in different ways. I understand that they will be debated in due course, as you have set them out on the marshalled list. I want to be sure that if we do not debate the new clause stand part motion we will not prejudice our ability to debate subsequently the new clauses. I am not clear about that, and should like to be before we debate the new clauses.
John Bercow (Buckingham, Conservative)
There is no such problem. It is perfectly legitimate for us to debate Clause 2 now and, indeed, subsequently to debate and in due course to vote upon each of the new clauses. The order as set out is the order that we can and should follow
Dominic Grieve (Shadow Attorney General & Shadow Spokesman On Community Cohesion, Law Officers (Assist the Home Affairs Team); Beaconsfield, Conservative)
Clause 2 seeks to amend Section 43 of the Criminal Justice Act 2003 to substitute for “Crown Court Judge” a “High Court Judge” conducting the trial.
I would not like the Bill to go through this Committee without the Solicitor-General explaining the Government’s reasoning in deciding to entrust these trials to High Court judges. My reason for saying this is that I noticed the Solicitor-General picking his words with some care in the course of the earlier debate about the extent to which the judiciary might support these proposals.
I am not in a position to conduct a survey of all Her Majesty’s judges, but I have yet to come across a single Crown court judge who did not consider, first, that jury trial was a perfectly satisfactory vehicle for dealing with long and complex fraud cases and, second, a Crown court Judge who did not think that the worst possible thing that could happen to him was to be asked to sit and try a fraud trial on his own. As I hinted in my earlier interventions in Committee, this is because there are all sorts of procedural problems surrounding such a trial process which judges—they have communicated with me informally about this in large numbers—consider to be massively unsatisfactory.
If a judge should express the view that they are sure a person is guilty in a complex criminal case that leads to a substantial period of imprisonment and should it subsequently transpire, whether through the appeal process or by the Criminal Cases Review Commission, that some further evidence comes to light which shows that the wretched defendant was in fact telling the total truth when he denied his criminality, this will have a serious adverse impact on the judge’s credibility and standing. This is almost inevitable, however good a judge is at carrying out his work. This highlights why involving the judiciary in factual decision making to a criminal standard of proof in serious cases is a very dangerous road to take.
The Government has taken the view that, in the circumstances, it should be High Court judges who should be carrying out this procedure and not Crown court judges. In fairness to the Government, that was a proposal that came from the Opposition Back Benches at the time of the 2003 Criminal Justice Act because it was suggested that High Court judges would be more familiar with the procedure of dealing with trials on their own than the average Crown court judge.
That in itself, however, does not fully explain the Government’s reasoning and therefore I would like to take the opportunity of probing so that we can have fully on the record why the Government have decided that this is the appropriate course of action to take. I think that would be very useful and I hope the Minister can enlighten the Committee on the matter.
Simon Hughes (Shadow Secretary of State for Constitutional Affairs & Shadow Attorney General, Constitutional Affairs; North Southwark and Bermondsey, Liberal Democrat)
I have a linked question, and a separate question that is germane to new clause 2. I take up the question asked by the hon. Member for Beaconsfield. Have the Government had consultations with the High Court bench on whether it is ready and preparing for the eventuality of Parliament agreeing to this measure? More particularly, do the Government envisage certain types of High Court judges doing the work rather than judges taken at random from the court? For example, will commercial judges be asked to do the work? Some reports suggest that there will be a list of designated High Court judges who will do this sort of work.
That gives rise to a matter that has caused some anxiety in previous debates and elsewhere: that there will be judges who are known to be the judges of fact and law in these cases. By definition, because they will be the only ones in the country who have that responsibility, they might be more exposed to threats from people who cannot knobble juries but who will be able to spot judges who might try their case.
My second question relates to clause 2(2), which amends section 48 of the Criminal Justice Act 2003, and refers to the wording not just in respect of fraud trials but of trials that would be heard by a single judge where there has been jury tampering or where the jury has been discharged for that reason.
When we debated the Criminal Justice Bill in 2003, it was accepted by Parliament, including the House of Commons, that the one exception to a jury trial in serious cases should be in the event of the corruption of a jury, where there was a safety issue, or when there was a suspicion that jury tampering meant that there could not be a fair verdict on fact. My question to the Solicitor-General is, has that part of the Act been implemented?
The Solicitor-Generalindicated assent.
Simon Hughes (Shadow Secretary of State for Constitutional Affairs & Shadow Attorney General, Constitutional Affairs; North Southwark and Bermondsey, Liberal Democrat)
The Solicitor-General nods, which confirms what I thought, that it has been implemented. If so, on how many occasions has the measure been invoked, if at all? If it has not been invoked, is it simply because no application has been made or that no such circumstances have arisen? I am seeking an update on this part of the proposal, because it is novel legal ground and there has been no chance in the formal domain, on the record in Parliament, to learn whether that has happened or any chance to discuss the progress towards implementation.
Bob Neill (Bromley and Chislehurst, Conservative)
I want to probe the Solicitor-General further on similar lines. I refer to my earlier intervention on the impact of the proposal on the judicial personnel who will be required to deal with these matters. I agree with my hon. Friend the Member for Beaconsfield that the suggestion that these matters are dealt with by a High Court judge came largely from the Conservative Benches, but I want to be sure that the Solicitor-General and the Government have thought through the practical implications.
In murder cases, for example, it is possible to release the case from a High Court judge to a designated senior circuit judge—ticketed judges, as they are called in the profession. I take it that it is not intended that that should be the case in this measure, otherwise it would be self-defeating. Or would it? The ability to release a murder case to a senior circuit judge is a very useful and flexible tool in respect of listing and judicial availability. The lack of availability of ticketed judges in murder and rape cases is one of the constraints that cause delays in hearing cases.
It is important to ensure that there is not a similar delay in the cases we are discussing if a suitable judge designate is not available, a matter to which the hon. Member for North Southwark and Bermondsey referred. If these cases are not to be released, how do we get round that lack of flexibility? It is ironic that it is now possible for senior circuit judges to sit in the Court of Appeal. They are very often ticketed to try murders, but it does not appear that they would be ticketed to try serious fraud cases. That might be an unintended consequence, but it seems to be a paradox. Will it be resolved through the Bill or regulations?
What consultation has there been, not just with the senior judiciary, but, particularly, with the Council of Circuit Judges, whose members might have a useful view, and presiding circuit judges, who will have a responsibility for the administration and listing of such cases? Those matters are as yet unclear, and I would be grateful to the Solicitor-General if he could provide clarification.
Mike O'Brien (Solicitor General, Law Officers' Department; North Warwickshire, Labour)
Clause 2 provides that applications under section 43 of the Criminal Justice Act 2003 and the resulting non-jury trials would have to be heard by a High Court judge, rather than a Crown court judge. The change was proposed during various discussions and the Government have said that we are disposed to accept it. The status of High Court judges provides an added safeguard and we felt that the proposal was one to which we could accede.
I listened with great care to the comments made by the hon. Member for Bromley and Chislehurst on the nature of the High Court judges who might consider such matters. The identification of appropriate judges to hear such cases would be a matter for the President of the Queen’s bench division. The hon. Gentleman raised an interesting point: some senior circuit judges can try not only murder cases, but very complex ones, and some of them might be more than competent to deal with complex and serious fraud cases sitting alone. That is worth thinking about. I do not want to make public details of the recent discussions between the Lord Chief Justice and the President of the Queen’s bench division, but it is safe to say that a point was made similar to that raised by the hon. Gentleman. I would like to think a little more about it. We might be able to identify certain circuit judges who would be capable of dealing with such cases sitting alone—some very able circuit judges come to mind, although, perhaps not all of them. I shall think about that, because he made some good points.
There are, I believe, 108 High Court judges. That limit is set in statute so we will have to take into account the availability of judges. We do not anticipate that the number of trials that are likely to take place in a year will be very great—we estimate an average of up to six. In the past, we have suggested that it could be as many as 15 or 20, but that is a remote prospect. However, given the various demands on High Court judges and given that such trials, even if they are few in number, will take a considerable length of time, there might well be pressures. It bears thinking about, so I listened with great care to what the hon. Gentleman said.
As I told the hon. Member for Beaconsfield, in response to suggestions by the Opposition, we have concluded that High Court judges will be an added safeguard. We have no difficulty with that. High Court judges are used to deciding matters of great importance. They are senior judges who decide cases involving vast sums of money far more often than such sums are likely to be the subject of serious and complex fraud cases. To the hon. Member for North Southwark and Bermondsey, I say that I do not think that there is a great likelihood that such judges will be nobbled or corrupted, or that they might become the victims of approaches that are not already made to them. They decide big cases now; there is no suggestion that there is corruption or attempted nobbling of those judges, and I do not anticipate that we are likely to face that in cases of serious and complex fraud that come before them. In any event, our judges are more than capable of dealing appropriately with any approach that might be made, because it would clearly be an unlawful approach.
Douglas Hogg (Sleaford and North Hykeham, Conservative)
Reinforcing the point that my hon. Friend the Member for Bromley and Chislehurst made, does the Solicitor-General accept that now, the judges who have the greatest experience in fraud cases are the Old Bailey judges—who are not High Court judges by definition—and senior circuit judges? Does he accept that High Court judges rarely try fraud cases because of the length of time that such cases often take? He would have great difficulty finding a High Court judge who, in his or her judicial capacity, has actually tried fraud cases.
Mike O'Brien (Solicitor General, Law Officers' Department; North Warwickshire, Labour)
I hear what the right hon. and learned Gentleman says and, as I told his hon. Friend the Member for Bromley and Chislehurst, I shall bear those points in mind. We have responded to a request from the Opposition to the effect that High Court judges might have the appropriate seniority to deal with such cases. I have some sympathy with the view expressed by the right hon. and learned Gentleman that some senior Old Bailey judges and circuit judges might be capable of trying the cases. That is a valid point and, as I have said, I should like some time to think about it. In due course, after reflection, I may come back to the Committee and express a view onthe issue.
Let me respond to the point made by the hon. Member for North Southwark and Bermondsey about section 48. That was implemented on 24 July, and I am unaware of any circumstance in which it has been invoked to date. I should be surprised if it had been. However, I shall double check that and if it is necessary to correct what I have said I shall write to the Committee.
Simon Hughes (Shadow Secretary of State for Constitutional Affairs & Shadow Attorney General, Constitutional Affairs; North Southwark and Bermondsey, Liberal Democrat)
On the point that was made by three hon. Members about the sort of judge to hear the cases, I hope that the Solicitor-General will say a word about whether there has been any discussion of the categories of High Court judges that Ministers have in mind.
Let me make it clear that nobody is suggesting that judges are likely to fall for attempts to corrupt them. That is not being alleged. Unless I am missing something, there will be a new category of judge or of trial. At the moment, the difficult cases dealt with by single judges are civil cases, not criminal cases, except when they are appeal hearings, in which higher court judges sit. Apart from jury-nobbling cases, which they could now hear, it would be a new circumstance in which a Crown court or High Court judge alone would be the judge of fact.
Mike O'Brien (Solicitor General, Law Officers' Department; North Warwickshire, Labour)
It is not intended that the Government will identify a new category of High Court judges to sit in such cases. Which judges are available and appropriate to try particular cases is a decision that must be left to the Queen’s bench division.
The hon. Gentleman is right to say that we are going into new territory. Judges will be hearing cases without juries. We know that there are non-jury trials in magistrates courts before district judges and in Northern Ireland; and in magistrates courts, although magistrates sit, there are no jurors. A lot of cases are decided without juries, so that is not a big innovation, but it will be a change for serious and complex fraud cases to be tried without a jury before a High Court judge. Some High Court judges deal primarily with civil cases, but they might well have had experience of criminal practice. The straight answer to the hon. Gentleman’s question is that we shall have to wait and see how the President of the Queen’s bench division decides to allocate judges.
The hon. Gentleman also asked about the various views on the matter that have been expressed by judges. I have tried to make my points carefully, and it is part of my responsibility not to get judges involved in a contentious area of political debate. They should stay above that. It is publicly known that some support the change, and no doubt there are those who oppose it—the hon. Member for Beaconsfield has referred to discussions that he has had with Crown court judges. I do not want to bring judges into a contentious party political debate, which would be undesirable given their standing above and beyond such debate. However, it is safe to say that there are different views.
I believe that I have dealt with all the points raised, and I shall be happy to deal with any others.