Douglas Hogg (Sleaford & North Hykeham, Conservative)

Just in time.

Simon Hughes (Shadow Secretary of State for Constitutional Affairs & Shadow Attorney General, Constitutional Affairs; North Southwark & Bermondsey, Liberal Democrat)

Just in time is always good enough. I thank the Committee for agreeing to change the time of the sitting because it has allowed colleagues the opportunity to speak on the urgent question in the House. That was much appreciated.

The amendment would delay for two years the period before which the Bill comes into force. I put the arguments for waiting to see how the changes already announced will take place. My final argument was to do with the Government’s review. When do they expect to announce the its conclusions? The consultation finished in October. I understood that we were to expect an answer about now, and people will need to digest that. However, it is another reason for giving Parliament, the Committee and the country time to digest the implications of what has happened in the two years since the Government thought we needed to proceed.

I hope that the Committee can be persuaded that it will be sensible not to rush any changes, even if people are minded to support them in principle. I hope that we can agree that it will be better to wait, take stock of where we are, and then properly evaluate the best way to try cases of serious fraud. I hope that that is an attractive argument.

Dominic Grieve (Shadow Attorney General & Shadow Spokesman On Community Cohesion, Law Officers (Assist the Home Affairs Team); Beaconsfield, Conservative)

I support the amendment. The hon. Gentleman touched on the fact that we have a new Fraud Act—the FraudAct 2006—which has not yet been fully implemented. There has also been no time for us to understand the extent to which it will simplify trials.

I mentioned an issue relating to the Domestic Violence, Crime and Victims Act 2004, which is also highly germane to the debate. Those who participated in the debates on that Act will recollect that it contains a controversial provision that attracted considerable  debate, but which the Conservatives did not seek to obstruct. That provision allows for the trial of specimen counts in the case of somebody who carries out what is described as repetitive criminality. When a person has been convicted, it allows the judge alone to make a finding of fact on the outstanding counts that have not been tried but have used the same system to obtain something or otherwise to commit an offence.

The obvious example is someone who uses a credit card 500 times fraudulently and dishonestly to obtain goods or services. Rather than having to plough through all 500 counts, one can pick two or three specimen counts to be tried by jury. After the person has been convicted of those offences, other offences that plainly bear the imprint of their criminality, having been committed in the same period and starting with a specimen count at the beginning and the end of a period, can be dealt with by a judge on his own.

That system existed informally in my early yearsat the Bar. It was called taking offences into consideration. In that period, the system that we had in place was that if a person would not agree to offences being taken into consideration, the judge effectively took them into consideration if he considered that the evidence of a person’s involvement was overwhelming. That system was overturned by the Court of Appeal, which said that if a person disputed TICs, as they were called, the outstanding offences could not go into the balance of the sentencing process. The Government’s proposal in the 2004 Act was precisely to get around the problem by having a formal system of adjudication on outstanding counts. Although some had concerns about the extent to which it might usurp trial by jury, I for one considered it to be a sensible way to proceed.

David Heath (Shadow Leader of the House of Commons & Shadow Cabinet Office Minister, Cabinet Office; Somerton & Frome, Liberal Democrat)

My recollection of our proceedings on the 2004 Act coincide with the hon. Gentleman’s. Although we had reservations, we all felt that that was a sensible way to proceed for precisely the reason of exposing the full criminality—I believe that is the phrase the Solicitor-General likes to use—without placing too onerous a duty on the jury. Why on earth it has not been implemented, God only knows.

Dominic Grieve (Shadow Attorney General & Shadow Spokesman On Community Cohesion, Law Officers (Assist the Home Affairs Team); Beaconsfield, Conservative)

The hon. Gentleman, with whom I have shared many hours in Committee on numerous Bills, mainly in the field of criminal justice, takes the words out of my mouth because that is precisely the point I was about to move on to.

Mike O'Brien (Solicitor General, Law Officers' Department; North Warwickshire, Labour)

Will the hon. Gentleman give way?

Dominic Grieve (Shadow Attorney General & Shadow Spokesman On Community Cohesion, Law Officers (Assist the Home Affairs Team); Beaconsfield, Conservative)

I will in a moment when I have made another point.

Seeing that the measure was specifically designed to expose the full criminality in a way that provides reassurance of the maintenance of the principle of jury trial, it is odd that the principle and the power in the 2004 Act should have been ignored by the Government in the current proposals. The situation is all the odder because the 2004 Act has been on the statute book for some little time. The Minister will be able to tell us exactly how many months, or years, but we are talking  about a considerable period. Yet I understand from a comment this morning that a particular clause dealing with this procedure, which I would have thought would have been fairly easy to implement, has not yet been implemented and is not due to be implemented until January 2007.

Douglas Hogg (Sleaford & North Hykeham, Conservative)

Will my hon. Friend give way?

Dominic Grieve (Shadow Attorney General & Shadow Spokesman On Community Cohesion, Law Officers (Assist the Home Affairs Team); Beaconsfield, Conservative)

I had better be fair and give way to the Solicitor-General first.

Mike O'Brien (Solicitor General, Law Officers' Department; North Warwickshire, Labour)

I am curious because as the hon. Gentleman supported the provision, I would have thought that he understood its purpose. It seems that he did not. The particular provision to which he refers, in the 2004 Act, relates to the charging of specimen counts that deal with the same sorts of other counts which are subsequently the subject of sentencing.

The role of such a trial is to deal with a wide range of activities. They are not the same. They may in some cases be broadly similar, but they may indeed be different. Therefore the prosecution of fraud may involve the prosecution not of a range of identical offences, but a broad range of fraudulent activity which may go across a whole series of transactions, some of which may be similar and some of which may not. Therefore, what the hon. Gentleman is talking about, and what we are talking about in the prosecution of fraud, may well be entirely different things, and that is why one does not deal with the other.

Dominic Grieve (Shadow Attorney General & Shadow Spokesman On Community Cohesion, Law Officers (Assist the Home Affairs Team); Beaconsfield, Conservative)

I listened carefully to what the Solicitor-General said and I am now even more puzzled by what the Government are intending to do in this Bill.

John Bercow (Buckingham, Conservative)

Order. Amendment No. 1 to clause 4 has a relatively limited scope. It concerns the commencement date and the territorial coverage, both of which matters the hon. Gentleman will be well familiar with. He may periodically animadvert to, but he may not dilate upon matters that are outwith the terms of the Bill or the amendment.

Dominic Grieve (Shadow Attorney General & Shadow Spokesman On Community Cohesion, Law Officers (Assist the Home Affairs Team); Beaconsfield, Conservative)

Mr. Bercow, I am grateful to you for reminding me of the scope of the amendment, but I hope that you will be able to rule at least in order that we are dealing with delay. One of the arguments for delay is to see how the impact of the 2004 Act provisions may work in practice after it has been implemented at the end of January. I will do my best not to digress too much, but the Solicitor-General has raised an issue, to which I hope I can respond promptly and expeditiously. He suggests that in fact there is a completely different effect that is not germane to the issue under consideration. Of course, I will be mindful that I must not stray into a general debate on a clause in a separate Bill.

The Solicitor-General puzzled me because, while I accept entirely that fraud may not necessarily be a systems offence, with a repetition of the same format time over time—although it very often is—he raises a separate issue, which I hope we can properly consider without straying too far. Even if we have trial by judge alone, that does not justify lumping together in one trial a series of separate fraudulent activities. I simply suggest  to the Solicitor-General that if a prosecutor attempts to do that, the rules in front of a judge alone would apply exactly as they would in front of a jury and he might well be prevented from doing that, because it could be extremely unfair to a defendant. I hope that the Solicitor-General can provide clarification on that. If we are dealing with one fraud concerning extorting money from A and one from B, I would not necessarily assume that they would be allowed to be tried together.

On the main point, it seems to me that the 2004 Act provision on specimen counts is potentially sufficiently germane to the issue under consideration that we ought to have an opportunity to see how it works. In many cases, I think that it will greatly shorten trials. Prosecutors will be able to select specimen counts in many instances of fraud which involve a system and try those quickly with the reassurance that at the end the judge will assess the full criminality by a speedy method that does not involve a jury. Therefore, it drives something of a coach and horses through one of the Government’s principal arguments. For that reason, and without wishing to digress too far into the principles of the Bill, it seems a powerful argument for saying, “Let’s wait and see how this works in practice,” before we move to a highly controversial measure that departs from our established principles and practices of trial by jury.

Stephen Hesford (PPS (Rt Hon Baroness Amos, President of the Council), Privy Council Office; Wirral West, Labour)

I made a similar point on Second Reading. Does the hon. Gentleman accept that while a High Court judge listening to an application could take the matters that the hon. Gentleman describes into account, that would have the same effect as looking at the system of report? If in reviewing these things a High Court judge and/or the Lord Chief Justice judged it as a relevant matter and it was argued before them, they would take it into account. No doubt, if it was powerful they would refuse the application for the non-jury trial.

Dominic Grieve (Shadow Attorney General & Shadow Spokesman On Community Cohesion, Law Officers (Assist the Home Affairs Team); Beaconsfield, Conservative)

I accept that the hon. Gentleman makes an absolutely valid point. When an application is made for having a trial by judge alone, I can see that it would be possible for defence counsel to argue that in such a case, as part of the other arguments that could be advanced, it could have a jury trial because we could proceed on specimen counts and have it tried separately thereafter.

Although I accept that that is a perfectly good argument, my point is simply that, for reasons that are philosophically based, I do not like departing from the principal of trial by jury. On the whole, experience shows that if a mechanism or power is provided, it sometimes ends up being used when it might not necessarily be needed. As I disagree with the Government on that, I would much prefer to give the new systems established in the Fraud Act 2006, which were touched on by the hon. Member for North Southwark and Bermondsey, and the 2004 Act the chance to bed in. We might all end up with an agreement in two years’ time between the Solicitor-General, the Attorney-General and myself, with everybody saying, “Actually, as it’s turned out, we now realise that this really isn’t necessary,” at which point we can be convivial and stop disagreeing, which on the whole is a good thing

Douglas Hogg (Sleaford & North Hykeham, Conservative)

I would be surprised if we managed to do that.

Dominic Grieve (Shadow Attorney General & Shadow Spokesman On Community Cohesion, Law Officers (Assist the Home Affairs Team); Beaconsfield, Conservative)

My right hon. and learned Friend, who has much longer experience of parliamentary life than I have, is probably right in his gentle pessimism about the state of politics and the disagreements that spring up. It is nevertheless a laudable aim, especially in this season, and I ask the Solicitor-General to bear that in mind. I am happy to support the amendment.

Douglas Hogg (Sleaford & North Hykeham, Conservative)

With regard to what my hon. Friend the Member for Beaconsfield said, let us be clear that I never see it as my business to agree with the Government. I will stand in the way of a great majority of their policies with as much energy as possible, regardless of the season.

That is not the burden of what I want to say, however. I want to support the hon. Member for North Southwark and Bermondsey and I have four reasons for doing so. First, I entirely agree with what the hon. Gentleman and my hon. Friend said about the implications of section 17 of the Domestic Violence, Crime and Victims Act 2004. It will clearly make a huge difference to the approach of courts in criminal cases, because once a light indictment may be the charge in all but the most serious of accounts, with the rest to be taken without the jury by the judge alone, that will make a difference to the length of trials that are currently deemed to be burdensome because of their length. I say to the Government that, from their perspective, they will do well to bring in section 17 and allow considerable time for it to be worked through, so that one can see its consequences.

My second point relates to case management powers. The courts are becoming increasingly accustomed to using robust case management powers. These have been in existence for some time, but the courts inevitably take time to become fully acquainted with them and to work them through. When used by a robust judge with a co-operative prosecution, the powers can go a long way to reduce the complexity and length of trials. I hope that the judiciary would be encouraged by the senior judiciary to use the powers in a robust manner. I think that it will, and that will be relevant to the subject that we are discussing.

My third point harks back to the undertakings that were given by the former Home Secretary. We have been through the argument of whether there has been proper discussion. We have heard the Solicitor-General’s explanation, and the Committee will make up its own mind. Some of us might think that a satisfactory discharge of the undertakings that were given did not take place. Time would enable the Home Secretary of the day properly to discharge the undertakings given by his predecessor. I would regard that as a good thing.

Lastly and differently, my hon. Friend the Member for Beaconsfield made some important points about the difficulties that will occur in the court of a trial by judge alone. The issue was raised on Second Reading. Currently, the judge is a judge of law and the jury is a judge of fact. The judge makes rulings on a range of procedural matters, such as those relating to admissibility. If he decides in favour of the defence—these are only  examples—previous convictions, hearsay evidence or alleged admissions never go before the jury. When the judge is judge of both law and fact, he makes those rulings and is aware of the underlying facts, whether he deems them to be admissible or not. The problem will become even greater when there is an application for public interest immunity. The hon. and learned Member for Medway (Mr. Marshall-Andrews) talked about this point at considerable length and with great eloquence. I am sorry that he is not on the Committee; it would have more fun had he been so.

There will have to be a lot of practice directions, and perhaps statutory instruments, to give effect to the procedural solutions that will be required. I would not be wholly surprised if the reason that section 17 of the 2004 Act has not been introduced is that the Department for Constitutional Affairs and the Home Office have had some difficulty in drafting the necessary consequential orders and practice directions along with the Chief Justice. A delay of two years or so would be useful in that connection. In the end, however, the proposals are thoroughly bad and any delay is worth having; after all, the thing might sink.

Bob Neill (Bromley & Chislehurst, Conservative)

I promise not to be over-enthusiastic this time, Mr. Bercow. I support the observations of my right hon. and learned Friend the Member for Sleaford and North Hykeham, my hon. Friend the Member for Beaconsfield, and the hon. Member for North Southwark and Bermondsey, and I shall supplement them with a couple from my own comparatively recent experience. I was not, of course, a Member at the time of the agreements, so I could not be a party to them. That gave me the opportunity to be active in the criminal justice system, at least on a part-time basis—an activity that, lest it ever be discussed in a focus group in south-east London, I should emphasise has ceased since I became a Member.

Douglas Hogg (Sleaford & North Hykeham, Conservative)

May I encourage my hon. Friend to remain active at the criminal Bar? That will enable him to say no to the Whips whenever he chooses.

Bob Neill (Bromley & Chislehurst, Conservative)

I shall take my right hon. and learned Friend’s very sage advice. If he ever needs a good junior he will know where to come.

Douglas Hogg (Sleaford & North Hykeham, Conservative)

If he ever needs a good leading counsel, I am here.

Bob Neill (Bromley & Chislehurst, Conservative)

I fear that my diary may get in the way of that at the moment.

My recent experience reinforces my hon. and learned Friend’s point about the desirability of delaying implementation, a point that has been well made in relation to section 17. Just before I entered the House, I prosecuted a fraud case that was not so substantial as to qualify under the serious fraud provisions, but complex nevertheless—it involved something of the order of 250 separate transactions. I have no doubt that those who instructed me would have been delighted, as would I, had I been able to use the section 17 provisions, so that we could have had a short trial on, say, the six counts that embraced the criminality. The judge would then have had the totality of the  picture and been able to deal with matters in sentencing. That is why I intervened on the Minister earlier: full criminality is most important in sentencing rather than in anything else, and we can get where we need to be on sentencing by implementing section 17.

Two years’ delay would give us the opportunity to work out how to do that sensibly, because there is much good will for section 17—among practitioners, prosecutors and the judiciary. It would also give us the chance to see how the Criminal Procedure Rules 2005 work out. The resident judges and those more likely to deal with more complex cases in the courts where I practised have been enthusiastic and willing to take the greater case management role on board. There has been good co-operation from the Bar, from solicitors and from the prosecuting authorities. None the less, we are only 18 months into that regime—not very long in the life of some of the complex cases—and matters will take a little time. It would be sensible to have an additional two years to see how things work out in practice. My right hon. and learned Friend the Member for Sleaford and North Hykeham has already argued for the accompanying statutory instruments, protocols and procedures, and I shall not repeat his argument, which was well made.

My final argument for delay is that it would give time for the Government to reflect on the comment made by the Solicitor-General in response to my hon. Friend the Member for Beaconsfield. That response troubled me as much as I believe it troubled my hon. Friend, and it surprised me a little as well. The Solicitor-General said that the indictment could cover a whole range of criminal activities, some of which might be similar and some of which might not. On the face of it, that raises the question whether the Government are proposing to revisit the joinder rules.

Mike O'Brien (Solicitor General, Law Officers' Department; North Warwickshire, Labour)

The answer is no, as far as we are concerned. There will of course need to be a link between charges, but they do not have to relate to the same sort of offence. The Domestic Violence, Crime and Victims Act dealt with cases in which there was replication of pretty much identical activities, so that a specimen charge could easily be used. By contrast, we are dealing here with a range of behaviour, and what is happening in fraud trials is that cases are being split and charges are being reduced, so we need to ensure that the full range of the fraudster’s behaviour can be brought before the court.

Bob Neill (Bromley & Chislehurst, Conservative)

I am grateful to the Solicitor-General for that clarification, but from what he said it seems to me that the normal rules about a nexus being found should apply.

Mike O'Brien (Solicitor General, Law Officers' Department; North Warwickshire, Labour)

I am not implying that. Of course there will be some nexus between the charges against a defendant, but that does not mean that all the items brought before the court need to be identical. The provisions that the hon. Gentleman is addressing in section 17 relate to charges for virtually identical behaviour. We are considering a range of behaviour, which may well have a nexus but is carried out in a range of ways.

Bob Neill (Bromley & Chislehurst, Conservative)

I am grateful again to the Solicitor-General. That clarifies his position but does not assuage my concern—in fact, it increases it. It might be legitimate for the Government to make changes by another route, but if we are to change the approachto admissibility, that is another reason to have a good deal of time to consider the matter. It would be a substantial departure, and it would be troubling as a matter of principle if there were to be special rules on what can be joined on to an indictment for one class of crime, or indeed the one class of fraud covered by the Bill. I urge the Government to think again about that, and two years would give them time to do so.

Douglas Hogg (Sleaford & North Hykeham, Conservative)

It would give the Government time not only to think again but to consult. The Solicitor-General’s suggestion might well require a substantial amendment to the Indictments Act 1915.

Bob Neill (Bromley & Chislehurst, Conservative)

My right hon. and learned Friend is absolutely right and brings me back to the point that I made before the Solicitor-General helpfully intervened. If there has to be such an amendment, which seems to me the logical consequence of what the Solicitor-General is saying, we need time to get it right, even leaving aside the principle.

Mike O'Brien (Solicitor General, Law Officers' Department; North Warwickshire, Labour)

The hon. Gentleman and his colleague, the right hon. and learned Member for Sleaford and North Hykeham, are getting a little carried away with their argument. We do not need to change the nexus rules in relation to trials, nor do we need to amend the way in which indictments are drafted. We need to ensure that we can establish in court the full culpability of fraud defendants so that justice can be done. I notice that the hon. Gentleman winks at his colleague because he has drawn me to clarify the situation, which I hope I have done. I hope that he accepts my position.

Bob Neill (Bromley & Chislehurst, Conservative)

I am grateful to the Solicitor-General, which I am becoming used to. With respect, he has not answered my principal point. If we are to move towards putting a defendant’s total criminality before one tribunal of both fact and law, it is important that we get the procedural rules correct. To start the new system only two months after the Bill is passed and without consultation, as my right hon. and learned Friend the Member for Sleaford and North Hykeham said, seems dangerous even from the Government’s point of view, leaving aside our objections to the proposal. If the Government are to make this change then, for heaven’s sake, they must take the time to ensure that they get it right. That is why I beseech the Government to reconsider being so arbitrary about the Bill’s commencement.

Joan Ryan (Parliamentary Under-Secretary, Home Office; Enfield North, Labour)

We have had a lively debate. I was struck at the beginning of our proceedings this afternoon by the sight of the hon. Member for North Southwark and Bermondsey. He rushed in and could hardly draw breath before he urged us not to rush. I assure him that we are not rushing and that we have given the matter long and full consideration. Our debate this morning demonstrated that, and the problem  in question has been recognised and considered for not years, months or days but decades. The idea that we have rushed into anything is, to say the least, an exaggeration.

The hon. Gentleman and other hon. and right hon. Members seem to cleave to the idea that if only we were to wait long enough, the need for serious fraud trials to be considered without a jury would somehow disappear. The Government do not share their optimism. It is recognised that the problem has existed for at least20 years and we do not believe that such measures as the Fraud Act 2006 or the Lord Chief Justice’s protocols in 2005, although admirable, will be sufficient to deal with the issue.

Right hon. and hon. Members have asked that we wait for some of the other measures. As has been said, the Fraud Act comes into force on 15 January 2007. As I understand it, the Act deals with the substance and definition of fraud, as opposed to the process by which we deal with it, which is addressed by the Bill before us. I reject the points made my Opposition Members about waiting until the Act is in force.

Dominic Grieve (Shadow Attorney General & Shadow Spokesman On Community Cohesion, Law Officers (Assist the Home Affairs Team); Beaconsfield, Conservative)

Does the Minister not agree that those two things are linked? One of the arguments that is made persistently in fraud cases—I use that word generically because, sometimes, such cases might concern obtaining property by deception—is that the concepts are complex. With the support of the other place and both sides of the House, the Government have tried to simplify the law in relation to fraud, which ought to make the trials themselves simpler. That goes to the heart of this legislation.

Joan Ryan (Parliamentary Under-Secretary, Home Office; Enfield North, Labour)

That something is linked does not mean that it is the same, or can be dealt with in the same way.

An important point was made on Second Reading, to which I am sure that hon. Members were listening, but I shall reiterate it because otherwise Committee members, and anyone reading these proceedings, might assume that we have not adopted a strategic approach, and that this problem has just leapt in front of us and did not exist before. When my hon. and learned Friend the Solicitor-General opened Second Reading proceedings, he stated:

“Our policy has four main strands. We recently took through the House the Fraud Act 2006”—

that has been referred to—

“which will create a statutory offence of fraud and modernise much of our law on deception. Secondly, the Government have also carried out a cross-departmental review of fraud to examine the prevention, detection, investigation, prosecution and punishment of fraud.”

I was asked about that. He continued:

“We published a report in July, and consultation finished on 27 October. We are now considering our response.”

Simon Hughes (Shadow Secretary of State for Constitutional Affairs & Shadow Attorney General, Constitutional Affairs; North Southwark & Bermondsey, Liberal Democrat)

Under the timetable that the Minister has given us, a cross-departmental report is likely in January. We have seen the consultation document. Does she accept that it is likely to suggest improvements to  the process in order to increase the chances of a conviction? They are all good ideas and none of them requires a change in the method of trial, but other things will improve the process.

Joan Ryan (Parliamentary Under-Secretary, Home Office; Enfield North, Labour)

I am pleased that the hon. Gentleman thinks that they are good ideas. I am sure that good ideas will come forward. However, that in no way contradicts or undermines what I said about the four-pronged approach—the “four main strands”. Such things work together and I think that a strategic approach has many advantages. We need to plumb that at the outset, not in retrospect. That is what I was talking about.

The third strand deals with the new protocols and procedures for our courts, which have been referred to, and case management. I shall return to what the Solicitor-General said on Second Reading:

“The Bill is the fourth element. It will reform our criminal justice system to enable it more effectively to try a small number of serious and complex frauds without a jury.”—[Official Report, 29 November 2006; Vol. 453, c. 1088.]

I repeat the point about “serious and complex frauds” because they are the point of the measures. Although all the other measures will help in various ways in lots of other cases, we do not believe that they will address the burdensome nature of serious and complex fraud trials.

Having said that, let me respond to the point made by the hon. Member for Beaconsfield about how the Domestic Violence, Crime and Victims Act 2004 applies, and why its provisions have not been implemented. It was necessary to make rules of court, and those took effect in England and Wales in November and will apply to Northern Ireland from January 2007. The relevant provisions of the 2004 Act will therefore be commenced in January, and they are not aimed at section 43 cases—cases of serious and complex fraud. On that point, I return to the comment of my hon. and learned Friend: fraud trials may relate to dissimilar or similar acts, so the specimen credit card fraud cases given as examples by the hon. Member for Beaconsfield might not be relevant to cases of serious and complex fraud. It is not argued that that Act will deal with the issue that this Bill attempts to address.

Mindful of your warnings about straying too far, Mr. Bercow, I shall attempt to rein in my comments and return to the amendment tabled by the hon. Member for North Southwark and Bermondsey. He said that it sought to change the commencement period from eight weeks to two years. I refer him to the point made this morning by the Solicitor-General. Commencement of the Bill will amend section 43, but commencement of section 43 itself depends on a commencement order under the 2003 Act, so the hon. Gentleman need not get too worked up about undue haste.

Let me say a word on a couple of other issues, so as to ensure that I have answered as far as possible every point that was raised. I think that it was the hon. Member for Beaconsfield who talked about convictions and the role of the judge and, in a case with a jury, of the jury. The Lord Chief Justice will need to consider procedural rules, but there is not a problem in, for example, the Diplock courts, or for district judges and magistrates, who try cases without juries. Examples of endurance trials already exist, so that addresses that point.

Questions were asked—also, I think, by the hon. Member for Beaconsfield—about the way in which prosecution applications under section 43 will be made in circumstances involving sensitive information. That relates to the point that I have just made. Concern has been expressed about the potential for unfairness to defendants in cases in which a judge considers a public interest immunity application and then goes on to conduct the trial. The Government are confident that existing public interest immunity procedures are fair and effective and do not in any way endanger the rights of defendants. Currently, lay magistrates, district judges and others hear public interest immunity applications and then go on to find the facts. I hope that that lays that point to rest, or at least answers it, even if it is not a response with which the hon. Gentleman is satisfied.

I believe that I have covered the points that hon. Members raised about measures that we have taken in our overall strategy and shown why the fourth part of that strategy is important. The Bill should not be delayed, and it cannot be replaced with the other measures that we are taking. The Government’s unshaken view is that, in a small number of serious and complex fraud cases, trial without a jury is the best solution. We remain committed to the provision in section 43 and can see no grounds for delaying its introduction yet further. I therefore ask the hon. Member for North Southwark and Bermondsey to withdraw the amendment. If he does not, I will urge hon. Members to vote against it.

David Heath (Shadow Leader of the House of Commons & Shadow Cabinet Office Minister, Cabinet Office; Somerton & Frome, Liberal Democrat)

On the basis of that response, I hope that my hon. Friend the Member for North Southwark and Bermondsey will not withdraw his amendment. It seemed to me that in setting out the Government’s strategy, the Minister made it abundantly clear that it is based on an ex cathedra statement that they will proceed irrespective of the evidence and the effect of the other measures that are being taken.

It has always been suggested that the Bill is needed because of the complexity of the cases in question and the strain that they put on juries. However, the Minister said clearly that the fourth element of the Government’s strategy—to proceed with the removal of trial by jury—will be unaffected by the other measures being taken. She said that even if the existing legislation, the changes to procedural rules and the redefinition of the offence of fraud were proved substantially to reduce the complexity of cases and the time that they take, they would have no effect on the Government’s intention to remove the jury from trials in complex fraud cases.

I am left to conclude that the Government’s intention lies in a vacuum and is not based on any evidence of a requirement. It is certainly not based on the view, which is held on these Benches and was displayed by some Labour Members on Second Reading, although possibly not those in the Committee, that jury trial is a good in itself. It is part of the judicial system of England and Wales and should not be dispensed with unless there are very strong arguments for doing so. Such arguments have not been adduced by the Minister, who is impervious to any rational explanation involving other measures that have been taken. I hope that my hon. Friend will not withdraw his amendment and that we shall have the opportunity to divide on it.

Simon Hughes (Shadow Secretary of State for Constitutional Affairs & Shadow Attorney General, Constitutional Affairs; North Southwark & Bermondsey, Liberal Democrat)

Even if I had started to wobble, my hon. Friend would have prevented me from going too far. I was not tempted to wobble, because I have listened carefully to the Minister and the Solicitor-General, as I did on Second Reading. I wish to deal with the matter, because there is no point in failing to confront the issues put forward by the Government.

There are two up-front, objective reasons why the Government are still pushing for this fourth strand in their set of measures. There is also one unspoken reason, which I believe might be the motive behind the two spoken reasons. The three strands that are not to do with trial by jury are on case management, procedural changes and so on. They address, in part, one of the Government’s two objectives, which is to get rid of the burdensome nature of trial by jury. I understand that argument. If you, Mr. Bercow, I, or anybody else were called for jury service, as we are eligible to be, and found ourselves on a case that was to last for six months, it would be burdensome—more so for some people than others. I am not naive about that. Some of the changes announced in the past two years are specifically intended to address that point. Let me give the Government the objective evidence—it was not concocted either by me or the Solicitor-General.

We had the report on the Jubilee line case. Quite rightly, the report, produced by Her Majesty’s chief inspector of the Crown Prosecution Service, a Government appointee, looked into why that case went wrong.

Stephen Hesford (PPS (Rt Hon Baroness Amos, President of the Council), Privy Council Office; Wirral West, Labour)

Will the hon. Gentleman give way?

Simon Hughes (Shadow Secretary of State for Constitutional Affairs & Shadow Attorney General, Constitutional Affairs; North Southwark & Bermondsey, Liberal Democrat)

Bear with me.

I concede that the executive summary of the chief inspector’s report stated:

“Seen from the perspective of the jury, the trial was a quite intolerable burden.”

Clearly, the inspector looking into the Jubilee line case said that it was burdensome for the jury.

The hon. Member for Beaconsfield quoted the evidence of jurors, which, unusually, was in the public domain because the trial was discontinued. The inspector reported that the trial was burdensome not because the jurors did not understand it or because the issues were burdensome but, putting it bluntly, because the trial went on for so long, in an uncontrolled way, and the judge did not appear to have a full grip of the case. Gradually, things started unwrapping.

There have been burdensome cases.

Stephen Hesford (PPS (Rt Hon Baroness Amos, President of the Council), Privy Council Office; Wirral West, Labour)

I am obliged to the hon. Gentleman for giving way. He was, I believe, in the Chamber on Second Reading; indeed, he led for the Liberals. The Solicitor-General made it plain, time and time again, that in persuading people that we need these measures, the Jubilee line case was not relied on. It seems to me to be wrong for the hon. Gentleman to waste the Committee’s time quoting a case on which the Government did not rely, and which is not germane to proceedings.

Simon Hughes (Shadow Secretary of State for Constitutional Affairs & Shadow Attorney General, Constitutional Affairs; North Southwark & Bermondsey, Liberal Democrat)

If the hon. Gentleman will allow me, I had not finished my point.

There have been burdensome cases, but the Government have supported measures introduced by the Lord Chief Justice to deal with that burdensome risk.

The protocol, which is only a year and half old, in setting out the proposals, states:

“Central to the Protocol is its identification of a consensus that no trial should be permitted to exceed three months or an outer limit of six months, save in exceptional circumstances.”

Those are not my words; they are Lord Woolf’s, and he elaborates on that point.

One of the things that has been done since the Jubilee line trial is the introduction of a protocol that says, “We will have shorter trials. This is the way to do it. In procedural terms, here is the way in which you can have much shorter trials.” That is one of the things that will lift the burden. In fact, the Government have argued that the main element of the burden is the length of trial.

Douglas Hogg (Sleaford & North Hykeham, Conservative)

One of the suggestions that the Lord Chief Justice contemplates is that the indictment should only cover the central material on which the Crown needs to rely, and that the concept of full criminality should play no part in the indictment.

Simon Hughes (Shadow Secretary of State for Constitutional Affairs & Shadow Attorney General, Constitutional Affairs; North Southwark & Bermondsey, Liberal Democrat)

That is correct and the right hon. and learned Gentleman made the point well. We have discussed in the debate and in others why the “whole criminality” point is not valid. It is not compatible with any other part of the criminal justice system, nor is it necessary to secure justice. That is the issue.

I asked the Solicitor-General, and he gave me a perfectly reasonable answer, to show us why we have a continuing problem post the Jubilee line case. The case is relatively old and has not been relied on. The Solicitor-General cited three cases that he said gave rise to the problem being one that the three strands are not sufficient to address, and that a fourth strand is required. He said:

“There is a serious history of such proposals, and eminent judges have made reports”

but

“Since the passing of the Criminal Justice Act 2003”

—so, since the last time we looked at these issues—

“there has been further evidence of the importance of introducing such a measure. I referred to cases that had to be severed. In the Talbot Village Trust case, completed in 2004, the trial judge had to order the prosecution case to be reduced for management reasons. Again, in the Versailles case of 2004, which involved Cushnie and others, the judge ordered three counts against one of the defendants to be severed in the interests of trial management.”—[Official Report, 29 November 2006;Vol. 453, c. 1132.]

He also mentioned a third case, that of the Global Wildlife Trust.

Were those cases evidence of an unsuccessful outcome? I was assisted by a young Mr. McCracken—a lawyer of the future working in my office. It would be a slight overstatement to say that his research required great skill, because the availability of the web and the Serious Fraud Office website enabled us to find a summary. With him looking up the cases for me, I discovered the details. Neither case was a failure.

The press release concerning the first, dated16 February 2004 and entitled

“Fraud on charity hidden in £15 million building contracts”

said:

“Three construction industry professionals were convicted today at Winchester Crown Court for defrauding the Talbot Village Trust in Dorset of £3.5 million through manipulation of building contracts. The fraud related to six contracts totalling £15 million and involved invoicing for work not done and disguising inflated professional fees in the contracts.”

I accept that that case had gone on for a relatively long time; it had started in the magistrates court in 2001. However, although two defendants were acquitted, three were convicted. Unless the Minister is going to say that a case that results in any acquittals is a failure—not an argument that I hope anyone would make—the serious punishments that were awarded for those offences prove that the case did not, in fact, fail.

The other case was the Versailles case concerning Carlton Cushnie, who is based in my constituency. The Serious Fraud Office press release of 29 June 2005 was entitled

“The Versailles case: Carlton Cushnie ordered to pay”

and said:

“Carlton Ellington Cushnie was ordered today at Southwark Crown Court to pay over £10 million by way of confiscation in relation to the Versailles fraud.

This hearing arises from Cushnie's conviction on 25 May 2004, and sentencing on 8 June 2004 when he received six years imprisonment and was disqualified from acting as a company director for 10 years. The sentence was handed down for conspiring to defraud private investors who provided monies to Versailles Traders Limited and Trading Partners Limited. The earliest Cushnie can be released from prison is 8 June 2007.”

So the two cases that were readily accessible on the SFO website were not unsuccessful. Convictions and significant imprisonment were secured in both, and one secured a huge financial penalty. There were two acquittals in one of the cases, but it was possible to present to the juries both the seriousness of the cases and the breadth of the criminality involved. The juries—one in Winchester and one in Southwark—reached guilty verdicts.

Mike O'Brien (Solicitor General, Law Officers' Department; North Warwickshire, Labour)

I shall not try to make my point by way of intervention, and we shall perhaps have the opportunity to deal with it later. I shall merely say that, in the case of Talbot Village Trust, the judge ordered that the scope of the prosecution case should be reduced for trial management reasons. In the SFO’s opinion, that reduction made the case appear disjointed, and undermined the prosecution case in a number of key areas, although it was none the less successful. There is capability to succeed, but the SFO was concerned about the way in which the case proceeded as a result of the decision.

I am conscious of your strictures, Mr. Bercow, so I shall not go into detail on the Versailles case on intervention. In that case the judge ordered one of the three counts against Cushnie to be severed in the interests of trial management, and the SFO again felt that that did not allow the jury to see the full picture.

Simon Hughes (Shadow Secretary of State for Constitutional Affairs & Shadow Attorney General, Constitutional Affairs; North Southwark & Bermondsey, Liberal Democrat)

This sort of exchange is valuable. However, the whole history of both cases—the committal from the magistrates court, the commencement of the trial and the judges decision on trial handling—came  before the Lord Chief Justice’s direction of last year. Both cases also came before the report of Her Majesty’s inspector into the Jubilee line failures. My point is that we have learnt the lessons from the system failures that led to long trials and burdensome implications for jurors. We have not, however, learnt the lessons of the past year and a half—since the beginning of the changes. Those changes will reduce trial lengths substantially in nearly every case, but without—in the view of the judges and the SFO—prejudicing the generality of the case on guilt that is presented to the jury.

Dominic Grieve (Shadow Attorney General & Shadow Spokesman On Community Cohesion, Law Officers (Assist the Home Affairs Team); Beaconsfield, Conservative)

The hon. Gentleman’s point is important. He may join with me in inquiring about something on which the Solicitor-General may be able to help us later. A six-year sentence is a very long one by modern standards, particularly for fraud. If it is being suggested that the level of criminality was not reflected in the final outcome of the sentence, it would be interesting to know the view of the Solicitor-General on the sort of sentence that the total criminality ought to have attracted. I really wonder whether it would in reality have been very much.

Simon Hughes (Shadow Secretary of State for Constitutional Affairs & Shadow Attorney General, Constitutional Affairs; North Southwark & Bermondsey, Liberal Democrat)

Just one other point, although we could turn this into a seminar on recent successes in SFO cases. I am conscious, Mr. Bercow, that you will not allow us to do so.

David Heath (Shadow Leader of the House of Commons & Shadow Cabinet Office Minister, Cabinet Office; Somerton & Frome, Liberal Democrat)

It would be a useful precedent.

Simon Hughes (Shadow Secretary of State for Constitutional Affairs & Shadow Attorney General, Constitutional Affairs; North Southwark & Bermondsey, Liberal Democrat)

Yes, a useful extra seminar that we had not anticipated. I will just pick up this point; in the Winchester case, there was a unanimous verdict by the jury. So, that was not one of those cases that struggled to get a verdict, and I share the concern of the hon. Member for Beaconsfield that the evidence and argument do not suggest that justice there was letting off those people lightly, since they were not.

That leads to my last point. The unspoken reason motivating the Government in part, which sort of slipped out on Second Reading, is that they think convictions will go up if there is no jury. If that is in their minds explicitly or implicitly, then it is a worrying thought. There are a couple of obvious points to make if that was their thought.

We all want to have criminals dealt with by the justice system, and to be convicted when they commit offences. Serious criminals need to be convicted and punished seriously. When you represent a constituency like mine, where there is still a lot of poverty and some extreme affluence, so near to the City of London, not a few people have come to see me over the years saying, “Why is it that the heavy hand of the law comes down on little people for small offences”—that is not my phrase, but other people’s—“when the big crooks working in the City or elsewhere are not being caught?”

So I am up for these people being prosecuted, with the SFO doing its job properly, serious investigation being pursued and people being brought to book and locked up when they deserve it. However, if the suggestion is that we are not getting enough guilty verdicts, the evidence does not support that and the philosophy is fundamentally flawed.

David Heath (Shadow Leader of the House of Commons & Shadow Cabinet Office Minister, Cabinet Office; Somerton & Frome, Liberal Democrat)

Another thing occurs to me in what my hon. Friend was saying about these two cases that the Solicitor-General relies on as evidence of the need for  change. For his proposition to be correct, then there must be an assumption that the Lord Chief Justice would produce new rules of procedure and new guidance for trials without a jury as opposed to trials with a jury. The purpose of those new rules—[Interruption.] Well, the Solicitor-General is looking puzzled, but otherwise the severance would be exactly the same in a trial before a judge alone as with one before a jury. If that is the case, it means that having got the length of complex trials down, by using the Lord Chief Justice’s rules, the Government now propose to increase the length of trials—and, therefore, their cost and complexity—once the jury was safely out of the way. Does my hon. Friend believe that is the Government’s intention?

Simon Hughes (Shadow Secretary of State for Constitutional Affairs & Shadow Attorney General, Constitutional Affairs; North Southwark & Bermondsey, Liberal Democrat)

The debate could be extended, but without putting words into his mouth what my hon. Friend implies is that we would, objectively or rationally, have to take a different view if we had all seen a report written by the Serious Fraud Office saying that since the experience of the jubilee line case and Her Majesty’s inspectors’ report, and since the Lord Chief Justice’s protocol, and the experience of recent trials, then in the light of all those experiences it was still of the view that the new procedures were not delivering the outcomes that everybody has sought. If that came in the annual report of the Serious Fraud Office, then we would all have to take notice and probably say, “We’ll give it a bit more time, to see if they bed down a little longer”. We would be arguing for time. However, that is absolutely not the case, and the last of these cases saw a conviction only in June 2005.

To do the Solicitor-General credit and to be fair, I will observe that I have not gone into similar detail on the last of the three cases that he cited—the Global Wildlife Trust—for the simple reason that it was not as easy to find out the details from the same place. So, of course, I shall wait to hear from the Minister. However, the Solicitor-General conceded that it was not that the prosecution was not successful—the implication was that it was successful—but that the size of the case was limited. So we return to the argument of whether the full criminality was exposed to the court.

Joan Ryan (Parliamentary Under-Secretary, Home Office; Enfield North, Labour)

To help the hon. Gentleman, he might like to know that in the case that he could not find—the third one on the Global Wildlife Trust—the severance of the indictment meant that one defendant was not tried in the first and, so far, only trial, and that it is uncertain when, if ever, the second trial will take place. I think that that is relevant to his remarks—one of the trials did not reach a satisfactory conclusion, in the interests of justice.

Simon Hughes (Shadow Secretary of State for Constitutional Affairs & Shadow Attorney General, Constitutional Affairs; North Southwark & Bermondsey, Liberal Democrat)

My wise hon. Friend the Member for Somerton and Frome, one of the omnipresent three wise men, said that it is not surprising that we could not find the information as the last trial has not happened yet, which is, of course, true. I would not dare to contest that.

The serious point is that we could make a judgment only if a trial went ahead. However, in my experience, from my more limited number of years at the Bar, prosecuting and defending, there is a severance of  many criminal cases. One of the first cases that I prosecuted for Thames Valley police was for affray on Blackbird Leys estate in Oxford, which occasionally features in debates on criminal justice in this place. Lots of people participated in the case and in the end there were two trials because it was easier for case and jury management. They were related to the same offence, but none the less that was the decision.

That is quite common in all sorts of cases. We look at how we can best manage the case and consider things such as the number of defendants, bundles of papers and the length of time. That is not unique to fraud cases and it is not a sign of weakness. Of course, we would not get a whole picture of life on the Blackbird Leys estate over 24 hours if a trial was split into two, nor the whole story of a company and its activities over a lifetime of 10 years, but that does not prevent justice from being done. The question is whether justice is done.

My proposition is simple: it is neither timely nor reasonable to implement the Bill. The Minister made a procedural point and I shall end with a substantive one. She told us not to worry because two timetable triggers remain and that if the measures become law two months after the passage of the Act, it is all right because a commencement order would yet to be laid. However, my hon. Friend and I have spotted the flaw. The commencement order would not require the assent of both Houses of Parliament by affirmative resolution. So that is not a sufficient protection. Although the Minister might delay for a day, a week, a month or even a year before the introduction of the commencement order by the Attorney-General, I am afraid that we saw through that claim.

Finally, on the four strand approach, there is a consensus that three of them are perfectly acceptable. The fourth would change a fundamental element of British criminal justice. We should not change a system that has the confidence of the people and delivers a very high success rate—we should not even consider it, unless everything else has been tried, which we have not yet done. Even if we had, some of us would still need persuading. So we are certainly not persuaded.