New Clause 5
Fraud (Trials Without a Jury) Bill
7:30 pm
Simon Hughes (Shadow Secretary of State for Constitutional Affairs & Shadow Attorney General, Constitutional Affairs; North Southwark and Bermondsey, Liberal Democrat)
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.
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.