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'(1) Rules of court may make such provision as appears to the authority making them to be necessary or expedient for the purposes of this Part.
(2) Without limiting subsection (1), rules of court may in particular make provision for time limits within which applications under this Part must be made or within which other things in connection with this Part must be done.
(3) Nothing in this section is to be taken as affecting the generality of any enactment conferring powers to make rules of court.'.—[Mr. Blunkett.]
Brought up, and read the First time.
With this it will be convenient to take the following: New clause 1—Applications by prosecution for complex and lengthy trial to be conducted before a jury of experts—
'(1) This section applies where one or more defendants are to be tried on indictment for one or more offences.
(2) The prosecution or the defendant may apply to a judge of the Crown Court for the trial to be conducted before a jury of experts.
(3) If an application under subsection (2) is made and the judge is satisfied that both of the following two conditions are fulfilled he must make an order that the trial be conducted before a jury of experts, but if he is not so satisfied he must refuse the application.
(4) The first condition is that the complexity of the trial and its length—
(a) is likely to make the trial so burdensome to the members of a jury hearing the trial that it is necessary in the interests of justice for the trial to be conducted before a jury of experts.
(b) would be likely to place an excessive burden upon the life of a typical juror.
(5) The second condition is that the complexity and length will be attributable—
(a) to the fact that the issues likely to be material to the verdict of a jury hearing the trial relate to arrangements, transactions or records of a financial or commercial nature or which relate to property, and
(b) to the likely volume of evidence relating to those issues.
(6) In deciding whether or not he is satisfied that both of those two conditions are fulfilled, the judge must have regard to any steps which might reasonably be taken to reduce the complexity or length of the trial (or both).
(7) But a step is not to be regarded as reasonable if it would significantly disadvantage the prosecution or the defendant.'
New clause 2—Expert juries—
'(1) A jury of experts shall be constituted by 12 members drawn from the following professional bodies—
(a) The Royal Institute of Chartered Accountants;
(b) The Society of Actuaries.
(2) The Lord Chancellor may by order amend the list of professional bodies from which expert jurors are drawn.
(3) The Lord Chancellor shall maintain a list of eligible persons willing to serve as expert jurors.
(4) The Lord Chancellor may pay to any expert juror such remuneration as he may determine.'.
New clause 23—Application by defendant for trial to be conducted without jury—
'(1) This section applies where one or more defendants are to be tried on indictment for one or more offences.
(2) The defendant, or any of the defendants, may apply to a judge of the Crown Court for the trial to be conducted without a jury.
(3) The judge may make an order that the trial is to be conducted without a jury if satisfied that subsection (4) applies.
(4) This subsection applies if the judge is satisfied there is a substantial risk that the defendant will not receive a fair trial if tried by a jury.
(5) When deciding whether the subsection (4) applies the judge shall give consideration to the following—
(a) the nature of the case;
(b) any submissions made by the prosecution or the defence;
(c) any other relevant factors.
(6) Before making any submissions under subsection (5)(b) the prosecution shall take into consideration the wishes and interests of any witnesses.
(7) If two or more defendants are to be tried and any of them opposes an application under subsection (2) then subsection (4) will not apply.'.—
Amendment No. 1, in page 24, line 12, leave out Clause 36.
Amendment No. 2, in page 25, line 10, leave out Clause 37.
Amendment No. 3, in page 25, line 38, leave out Clause 38.
Amendment No. 128, in clause 38, page 26, line 1, leave out 'satisfied' and insert 'convinced'.
Amendment No. 5, in clause 39, page 26, line 20, leave out from 'applies' to end of line 24 and insert—
'to any application under section (Applications by prosecution for complex and lengthy trial to be conducted before a jury of experts) above.'.
Government amendments Nos. 203 and 204.
Amendment No. 6, in clause 39, line 42, leave out
'section 36, 37 or 38' and insert—
'section (Applications by prosecution for complex and lengthy trial to be conducted before a jury of experts)'.
Government amendments Nos. 205 to 207.
Amendment No. 7, in page 27, line 17, leave out
'section 36, 37 or 38' and insert—
'section (Applications by prosecution for complex and lengthy trial to be conducted before a jury of experts)'.
Amendment No. 8, in line 28, leave out '(or partly because)'.
Amendment No. 9, in line 28, leave out 'appears to have' and insert 'has'.
Government amendments Nos. 208 and 209.
Amendment No. 10, in clause 40, page 27, line 35, leave out from 'must' to end of line 36 and insert 'terminate the trial'.
Amendment No. 11, in line 37, leave out subsection (4).
Amendment No. 12, in line 39, leave out '(4)' and insert '(3)'.
Amendment No. 13, in line 41, leave out from 'that' to end of line 44 and insert—
'if the retrial were to take place with a jury there is a real and present danger that jury tampering would again occur and that either,
(a) (i) the danger of jury tampering is such that it would be necessary to provide police protection for the members of the jury hearing the trial and
(ii) the level and duration of that protection would be likely to place an excessive burden upon the life of a typical juror, or
(b) notwithstanding any steps (including the provision of police protection) which might reasonably be taken to prevent jury tampering the likelihood that it would take place was so high to make it necessary in the interests of justice for the trial to be conducted without a jury.'.
Amendment No. 14, in page 28, line 3, leave out subsection (7) and insert—
'(7) Any new trial by judge alone must take place in front of a different judge.'.
Amendment No. 15, in clause 42, line 31, leave out subsection (1).
Amendment No. 16, in line 33, leave out 'trial' and insert 'retrial'.
Amendment No. 17, in line 34, leave out 'be continued' and insert 'take place'.
Government amendments Nos. 210, 211, 214 to 222 and 213.
First, may I take this opportunity to welcome officially my hon. Friend Paul Goggins? I am convinced that this will encourage other Parliamentary Private Secretaries to believe that there is life after bag carrying. I sincerely hope so, as we approach the possibility of a forthcoming reshuffle.
On Third Reading, I shall say a word about my hon. Friend Hilary Benn, who is now the Minister of State, Department for International Development. He did a splendid job in the Standing Committee and I shall come back to that point tomorrow evening.
May I also wish Mr. Letwin, the shadow Home Secretary, a happy birthday? It is a miserable way to spend it. It looks as though I shall be spending my birthday in Cabinet discussing the euro, and I shall not take bets on which is worse—discussing trial by judge only or being judged on our decision on the euro.
New clause 29 provides a standard power to make rules of court in respect of procedural matters relating to applications and appeals under part 7. One such matter is time limits for applications. That concern was raised in Committee and we wanted to address the issue to ensure that, under clause 36, individuals had no opportunity to undertake what has been described as "judge shopping", which is an entirely new phrase to me. That raised the fear, however, that without proper time limits and additional requirements and restrictions, which exist already in clause 36, opportunities may exist for people to pick and choose judges in the way that, as we shall discuss in a moment, some people, by intimidation, pick and choose the jury that they want. We hope that this measure will allay people's fears.
In relation to clause 36, to which my hon. and learned Friend Vera Baird has tabled an amendment, fears were expressed in Committee that there may not be proper equality or opportunity for those with particular ethnic or gender needs to be dealt with fairly by jury, which is why some people would choose judge-only trials. We reject that proposition. We do not believe that new clause 23 is either necessary or desirable. I can confirm from discussions that Lord Falconer and I had with the Judicial Studies Board last week that substantial changes have been put in place for the training and choosing of judges in specific cases in which there may be concern. That is true of those who need proper training and sensitivity in relation to rape cases, and of those undertaking cases in which there may be racial undertones. That should be sufficiently trustworthy, in terms of the steps that have been taken, for us to acknowledge that judges would not place themselves in a position in which defendants would be at risk in that way.
Another issue that arises in relation to this Bill, but which may not be selected for debate, is corporate manslaughter. Of course, emotions can run high in relation to that issue, especially if there has been a major disaster. Assuming that the press coverage today is accurate that the Government are to honour their commitment to bring forward legislation on corporate manslaughter, how does my right hon. Friend envisage such trials taking place? Would they take place with judge and jury or on an indictment in this way?
My hon. Friend tries in an ingenious way to get me on to a subject on which I will say only one thing: we have made a decision that we should publish a draft Bill. We believe that it is right to have extensive discussions on the issues in relation to corporate manslaughter, and that it would be right and proper to listen to the strongly held views of those on all sides, including those most affected, and we will do that as soon as possible. I will not give either a timetable for the publication or an assurance about what mode of trial such cases would be dealt with under. I shall refine my English by the time that I have finished this afternoon.
Clearly, this group deals with clauses Nos. 37, 38 and 40, and with new clauses 1 and 2 tabled by the Opposition. I shall take the opportunity briefly to address those matters so that I do not take up the time of the House later. I shall be brief, as I know that, even with the time that we have available, many Members will want to address what I consider to be an extremely important issue.
In the last Parliament, we had two of what were described as mode of trial Bills. Some have suggested publicly—I hoped that we had overcome this—that with the proposition under consideration this afternoon, relating to less than 100 trials a year, we were returning to the mode of trial Bill and threatening trial by jury. I thought that we had got over that, until the shadow Home Secretary was quoted in two newspapers on Saturday—misquoted, I hope—as saying that
"the home secretary believes that being tough on crime inevitably involves undermining institutions that have protected our fundamental liberties."
I do not believe that at all. I have said in the House on a number of occasions, as well as publicly, that this is not a zero sum total: by protecting the interests of victims, witnesses, the justice system and truth, we do not in any way do damage to the rights of the defendant to a fair trial or to the vast majority of cases, which are not dealt with in a magistrates court, which will be heard by jury. We do not seek to undermine anyone's rights. Instead, we seek to extend them.
The right hon. Gentleman went on to say:
"We believe that trial by jury is an institution well worth preserving and the bulwark of liberty in this country."
Taken alongside Parliament, I believe that as well. I have no intention of returning to the propositions that were debated in the House and defeated by Parliament as a whole on two occasions previously.
We are not debating the withdrawal of the right to trial by jury. We have no intention of doing so. It is wrong for Members in this place or in the House of Lords, or for barristers who should know better, to imply that that is what we are doing.
I accept what the Secretary of State says but the propositions clearly propose the restriction in certain cases of trial by jury. Will the right hon. Gentleman tell the House whether he believes that jury trial is not working or whether it still has his whole confidence? If we end up with certain cases in the higher courts being tried by judge alone and certain cases being tried by jury, do not we inevitably have a two-tier justice system, the people deciding in one instance and the professional judges deciding in the other?
No, I do not. Given the limited number of instances that we are addressing where we should have trial by judge only, to suggest that my confidence in the jury system as a whole is undermined is entirely fallacious. We have a variety of hearings throughout our system from district judges through to the Court of Appeal and judges sitting in trio. We do not suggest that their right to hear appeals on jury trials undermines the previous trials that were undertaken by jury. It would be fallacious to suggest that it does.
We need to address the issues as they really are. I am always pleased to give way to my hon. and learned Friend, and I look forward to his pearls of wisdom.
I am grateful to my right hon. Friend for the gracious way in which he has given way.
However small the number of cases, if we are giving to judges the right to decide whether someone should have a jury trial or not, how can we say that we are not removing the right to jury trial?
In the thousands of cases that are currently held in front of a jury, and will continue so to be heard, there will be no change. The limited number of cases to which I have referred—somewhat fewer than 100 a year—are affected because they involve serious fraud or complex financial issues, or where there has been jury interference. We are suggesting that in those cases there can be a decision by the judge, having examined the cases, that it would be in the best interests of justice and of gaining the truth, and therefore getting to the root of the problem, that such a course should be taken.
I make the case strongly that protecting the integrity of jury trials by not allowing others to destroy that integrity—by not allowing others to undermine confidence in jury trials and by not allowing others to use manipulation and interference to damage jury trials—we are strengthening the credibility and well-being, and the confidence in, jury trials and the criminal justice system.
By the Secretary of State's comments earlier, in saying that he is now not seeking to introduce the provisions set out in a previous mode of trial Bills, is he accepting that the Government's arguments in support of introducing those Bills were erroneous and that the Opposition parties were right in their objections to them?
I do not accept that the arguments put by my right hon. and hon. Friends were erroneous. I believe that they put their case with conviction, and that there was a substantial argument to be put. Parliament overturned those mode of trial Bills. We were prepared to listen. That is a strength, not a weakness. I took a further look at the issue, along with the Lord Chancellor and the Attorney-General, and we concluded that it would be better to proceed as I am describing. I make no apology whatever for that.
On the evidence that we have, trials that have lasted months on very difficult cases involving complex financial issues have often led to considerable difficulty in dealing with the logistics and recruiting the jury. Over and over again, the same examples are thrown up, because they are excellent examples. In the Maxwell case, 700 jurors were called and 550 excused, with a range of arguments and reasons given for people withdrawing or being withdrawn, reflecting the inability of people to hold down their jobs or conduct their lives in such circumstances.
Here we are, asking people to do that or, in the case of the Opposition's new clauses, to believe that there is another way of arranging matters—not through normal juries, not by drawing on 12 stout men and women and true, but by developing an expert jury service. It is an extraordinary way round the problem, to say that there is a major problem—I admit there is; that we need to deal with it—and we do; that we cannot continue with the present system because it does not work—and it does not; and that we will invent a new system, which is not jury service but effectively an expert panel. It is not quite the same as the proposal for expert assessors, which was debated some years ago when these matters were dealt with by the Roskill Committee and later by Lord Justice Auld.
The proposal is for a coterie, not quite of our fellow men and women, but of some of them who would be able to develop their expertise in a way that would allow them to deal with cases that the official Opposition accept could not be dealt with adequately in the normal way, for the very reasons that we have enunciated and which led us to introduce these changes to the law, so that we can ensure that trials are fairly heard and fairly dealt with, in a way that does not make a mockery of the system, the collapse of trials or the inability to gain convictions where convictions would otherwise be justified.
I gather that last year there were 31 cases that lasted more than six months. Did the Home Secretary consider alternatives to removing jury trial—for example, smaller juries consisting of eight members, or jurors who had indicated that, because they were unemployed, retired or able to free, they would be available willingly to serve on longer cases? There is an argument for a more flexible system, but no case has been made for getting rid of the principle of a representative group of people judging cases.
The whole argument for jury trial is its representative nature. It falls where it falls, so there is no way, we hope, that it can be manipulated. In some cases, as I shall explain in a moment, we are concerned about interference. We believe that there is a danger that people have learned how to do the job of interfering with the process of a fair trial. Anybody who has read John Grisham's excellent book—what was it called?
Thank you. That was an excellent book—[Interruption.] I am glad to hear that John Grisham's latest book is excellent. I may one day have a chance to read a book again, rather than Bills and policy documents.
The John Grisham book demonstrates clearly how we must avoid falling into the traps entailed in long jury trials. I shall answer Simon Hughes straight. Yes, of course we had to consider other options. Roskill and the debates around that led us to consider whether it would be sensible for assessors to sit with a judge. Once one gets beyond the discussion about having a normal jury trial, one has abandoned the jury and invented a new proposition, which is what the official Opposition are advancing.
Rather than calling upon fiction to find evidence for his case, will the Home Secretary look to facts and accept that although serious fraud cases may impose difficulties on jurors, they do not seem to have resulted in difficulties in securing convictions, since over the past four years the Serious Fraud Office has had a 92 per cent. success rate in obtaining convictions, as against 57 per cent. on average for contested trials?
Such success is achieved only after a trial has been put together and a jury obtained. We are all painfully aware of that, because we are debating the best way forward for the investigation and presentation of serious fraud, and the best way of ensuring that we get more cases to trial, as well as getting more trials to successful conviction. They are two separate processes, but the right hon. Gentleman rightly and mischievously suggests that we address reality, rather than a mythical jury. I agree. That is the basis for our proposals. There have been instances of real difficulty in obtaining and maintaining a jury that is truly representative, picked from across the nation, not consisting of the unemployed or the long retired—
Nothing at all is wrong with the long retired or the unemployed, so long as the jury is not made up only of those who are retired or unemployed, as the hon. Member for Southwark, North and Bermondsey suggested. That is what I was responding to.
In introducing the proposal for non-jury trials in specific cases, could the Home Secretary enlighten the House and say whether his decision was informed by the experience in Northern Ireland of non-jury trials in serious criminal cases, which we have had for 30 years, and the moon and stars did not fall out of the sky during those years? In particular, would he consider two features of the Diplock courts? First, and importantly, there is a right of appeal not only on points of law, but on points of fact; and secondly, and importantly, the judge, who sits alone in those courts, must give a statement of his reasons for coming to his conclusions. That is why we have rarely had bad decisions from the Diplock process of non-jury trials in Northern Ireland.
No, the stars have not fallen from the sky. There are obviously specific circumstances in Northern Ireland, which we should weigh. We have taken account of the range of experiences, including those that the hon. Lady enunciated, and we have learned a great deal from the Diplock courts, as I said 18 months ago when we debated the development of the Special Immigration Appeals Commission. The House had reflected on these matters in 1997, when it unanimously determined that way forward. I am grateful to the hon. Lady.
When dealing with the constitution of juries in serious fraud cases, the Home Secretary points to the fact that people who are unemployed, either voluntarily or because of misfortune, form some part of those juries. Does he also accept that it is the universal experience of those who practise in such trials that the juries contain rather more women and rather more disabled people, both of whom are extremely desirable in our juries? Thus we arrive at a more, rather than less, representative jury than we otherwise would. While I have got the Secretary of State, may I also ask whether he is suggesting that a single judge is more representative than any jury in the circumstances?
I am not putting that argument. Those arguing against me are saying that they want a representative jury, but undermining that argument by talking about changing its representative nature. That is the simple fact. I am suggesting that once one does away with the presumption of a jury drawn from the population as a whole in the normal way, one has reached a different argument and is on a different wicket all together.
I did not get into the argument about retired people or women. I answered a question from the Liberal Democrat spokesman that presumed that we should be free to retain jury trial, but not the method of drawing on the population for such trial. That is what I am dealing with. Once we have moved away from the presumption of drawing freely on the population as a whole, we are arguing about a different sort of hearing.
Will the right hon. Gentleman tell the House whether his primary reason for seeking to do away with jury trials in specialist cases is the complexity of cases relating to financial matters, or the fact that their likely length is such as to be intolerable for a typical juror? They are not the same point. Which one is he making?
I did not confuse those two issues or suggest that one cancelled out or overrode the other. Indeed, I did not say that I was relying on one, but not the other. I do not know whether there is a text somewhere that I am not following, but on whose basis the right hon. and learned Gentleman intervened. If so, it was not mine and I have not said it. It is very difficult to answer a question that I have not addressed.
I am worried about the Home Secretary. I am not a lawyer—I say that as a matter of pride—but it seems to me that he thinks that he can make his case purely by sweeping assertion, rather than by any sort of reliance on evidence. Why does he think that the contrast is between the total representativeness of the established jury and the complete unrepresentativeness, as Mr. Marshall-Andrews put it, of the single judge? Why is the choice not between a more or less imperfect group of people—more than one person and probably several people—and the dependence of the defendant on the views of one individual?
I think that the argument is very interesting, and it will be put by the right hon. Member for West Dorset from the Front Bench, but it is not the argument about retaining the normal jury system. That is the point that I have been making, and it has to be made because the attacks on our proposition publicly have been about the destruction of the jury service. I read out the views of the right hon. Member for West Dorset from The Independent and the Financial Times on Saturday, and he has enunciated them on radio since.
We need to be clear on what we are arguing about. If we are not arguing about retaining the normal jury system and its selection for particular trials, we are arguing about something entirely different. So let us argue about whether a panel or a wider set of assessors with expertise and training to deal with financial matters is the right way forward, presumably on the grounds that wider jury selection does not allow that to happen. Alongside that, let us argue the question of how much time people can devote to jury service without destroying their lives or undermining their jobs so that they seek to withdraw from the jury. I said earlier that more than three quarters of those called for jury service had chosen to find a way of getting out of it.
My right hon. Friend will forgive me if, as I am not a lawyer, I do not follow some of the more esoteric arguments. To me, the issue is very simple. What we are suggesting is taking away from people an ancient right to be tried by however motley a crew is gathered in a court and giving that role to one person, professional though they may be. Is it not a principle in this House that we do not make laws that rely almost entirely either on exceptions or on the convenience of the Executive?
I do not think that we should ever rely on the convenience of the Executive, and there is nothing convenient for the Executive about any of this. We are seeking to find a solution to a problem that now appears substantially to be acknowledged across the House. One option is to draw on a limited number of people, assessors or otherwise, who are financially expert in the areas in question. That is an option, and it is about to be put by the right hon. Member for West Dorset. We are not presuming that there is something clever about this; we are trying to find a solution to a genuine problem. Of course, there is nothing exceptional about judges either in magistrates courts or, as I have illustrated, in higher courts. I thought that I heard the world around me suggesting that we should be defending the rights, position and integrity of judges.
I am much obliged to the Home Secretary for allowing me to intervene. The traditional role of the judge is to interpret the law. Juries have always interpreted the facts. That is the truth of the matter and that is what we are talking about.
Yes, and in the vast majority of cases they will continue to do so.
I want now to make my case about jury interference. If the principle at stake is that no trial at such a level should be conducted without a jury, the same principle would apply in relation to jury interference. I put the case that there are instances—again, there are only a few—in which it is necessary in the interests of justice, and not esoteric arguments, to protect ourselves from the jury interference, alteration or disbandment of juries and jury tampering that exist at the moment.
In Committee, Mr. Malins, who used to serve on the Front Bench, referred to a drugs case that had taken place in Liverpool not many months previously. It had lasted six weeks. On the first day of the judge's summing up, one juror had been followed home and offered money to produce a verdict sympathetic to the defendant. He told the judge about it the following day and the judge said that he would discharge him and that the trial would continue. The next day, two more jurors were followed home. They were badly threatened and came into court trembling the following day. The jury had to be discharged and a new trial had to start. The hon. Gentleman said that that cost a lot of money—I think that he referred to £270,000—but much more expensive trials have arisen in very similar circumstances. A recent trial cost £1 million.
I am arguing the case not on the basis of cost, but on the grounds of sheer intimidation and interference, where the process of justice is so damaged that it is not possible for either a fair trial to take place or for us, the public, to be assured that those who have committed offences are being held to account and that the interests of the public and the victims are being secured. That is what the House has to address this evening.
In a limited number of cases, where there is felt to be a problem, it is right that the judge should respond, although a right of appeal is of course built into the provisions. When I was in Liverpool two weeks ago, I talked to the chief constable, who enunciated again and again the difficulty that he faced. The issue is not confined to Merseyside, but 80 per cent. of such cases collapse there. He told me that we needed to ensure that, once the police and the Crown Prosecution Service had done their job, it was possible to believe that interference would not damage the chance of getting a fair judgment and, therefore, of getting to the truth.
I had a bit of a shock when the Home Secretary quoted me. I recall talking about jury nobbling, and I understand the difficulty of juries being severely threatened. Let me tell my right hon. Friend Mr. Letwin through the Home Secretary that I hope that I was in accordance with party policy on the issue. However, I have always maintained that long and complex trials can be handled by a jury entirely satisfactorily. That is an entirely separate issue from jury nobbling.
No, it has not, because I entirely accept what the hon. Member for Woking says. When I was dealing with complex trials, I quoted him on the issue that he describes as nobbling—interference with due process and the jury—so I am not at all abashed.
A moment ago, I said that we were arguing that it was juries for everything or juries for nothing. I am not making that argument, but others are. Either there is a principle that holds the Executive to account for its particular nature, or there is not. Clearly, we are not making that argument. The hon. Member for Woking and I disagree. He believes that his party policy, adapted to provide expertise, is right. On balance, I believe that it is not. I believe, as he does, that where there is interference, there should be an opportunity—spelled out very carefully, and available only in the limited circumstances enunciated in the Bill—to protect the jurors and the public. That is what we are doing.
To give another example, the Metropolitan police spent £9 million in 2001–02 protecting jurors in circumstances where intimidation would otherwise have damaged the process so greatly that it would have been impossible to ensure that those who undertook the intimidation were properly dealt with or sentenced. People interfere with juries not as a game, but because they want to get themselves or their friends off for something that they believe they will be convicted for. Some trials have taken place in interesting circumstances. One that took place in Birmingham just a few months ago, again about drugs, has been drawn to my attention. The defendant was found not guilty, but it is strange that the jurors should all have been invited to a lavish party in the city centre just two weeks later. As I told the Police Federation a few days ago, we all have to live in the real world.
I can easily see a distinction between clause 38 and clauses 36 and 37, and I do not agree with the proposition that it is all in or all out on juries. If clause 38 is to be utilised only as a last resort, as we were assured it would be in Committee—the steps in it are very steep, at any event—I can see its purpose. However, will my right hon. Friend help me with two points? First, the prosecution must convince the judge that there is a real risk of jury tampering. By implication, that will have something to do with the defendant in most cases. How will the same judge then go on fairly to try that defendant? Secondly—
I am sympathetic to the point that my hon. and learned Friend made, as well as the one she was about to make. If a trial such as the one originally described by the hon. Member for Woking has been materially interfered with, there is clearly a presumption, given what happened to the first jury. In such circumstances it would be sensible for the judge to recommend that a different judge sit alone on the case. Where sufficient evidence has been presented to a judge, they should make a presumption that had they heard evidence prejudicial to a fair trial they should stand down. I have no problem enunciating that this afternoon.
I am glad to be regarded as in my prime by almost anybody.
I should like to press my right hon. Friend on a related matter. Inevitably, it will be in the public interest to keep from the defence much information that has to be put to a judge to persuade him of the threat to the jury. How will that be accommodated? How can it be fair to allow the prosecution to pour such information into the judge's ear to get an outcome that the defence will not want? How can the defence be protected from the police simply deciding that they want this chap sent down so badly that they will get trial by judge alone?
If there is a suggestion of trial by judge alone, there will be a right of appeal, which is right and proper. Let us not assume that there are not instances now in which representations are made by counsel to the judiciary behind the chair. My hon. and learned Friend will know a lot more about that than me, because no doubt she has experienced it. However, I am not sure that it could be described as pouring matters prejudicial to the defence into the judge's ear.
The right hon. Gentleman referred to the right of appeal, but he will know that that can only be exercised with leave. Will he tell the House the circumstances that would restrict the right to grant leave? To return to the point made by Vera Baird, how will the defendant be able to challenge information privately communicated to the judge that the jury has been nobbled?
The defendant, of course, is claiming that he has nothing to do with the jury or the nobbling, and let us assume that they have nothing to do with him at all. However, in the real world, some people engaged in criminality have a great deal to lose from the way in which a trial proceeds. I think I am right in saying that the right hon. and learned Gentleman used to practise—[Hon. Members: "Still does."] Forgive me, I live in a world where we only practise politics, but I am surrounded by people who continue to practise law. The right hon. and learned Gentleman will accept that there are rare occasions in organised criminality when an individual acts alone and that there are people whose interests are affected by the outcome of a trial. We should therefore ensure that we get the right result by getting to the truth and ensuring that justice is done.
We are clutching at straws if we argue that those who are trying to interfere with juries and change the nature of juries by doing so—we heard earlier about a jury that was disbanded—are not interfering with the course of justice. There may be esoteric arguments that that does not matter and it is for the wider good of us all to ignore it, but I do not believe that for a moment. Victims of crime do not believe it; those who are trying to tackle organised criminality, which is growing, do not believe it; and those who see what is happening in relation to cross-border crime and international organised activity, using the most modern techniques, do not believe it. I do not believe that the people whom we represent think that we should live in fairyland or be somewhere other than with our feet firmly on the ground. We can argue until we are blue in the face. So long as we are not taking away the right to a fair trial, and so long as we are ensuring that people have the right of appeal—of course, that right will depend on the grounds on which the appeal is lodged—the safeguards will be in place.
I want to make an allied point to the Home Secretary. It is not a pejorative point: it relates to a matter that concerns us all very much. Not in jury-tampering cases, but in complex cases, long cases and cases involving property, very often—indeed, almost always—judges will hear in secret public interest immunity evidence that is brought to them by the prosecution, and rule upon it, after which the case goes through to the jury. How can a judge who has heard such evidence from the prosecution in secret possibly then continue to hear the case as a judge of fact and decide on guilt or innocence? In those circumstances, there cannot be two judges because the same judge must be in charge of public interest immunity from the beginning to the end of the case.
I have established from my hon. and learned Friends the Members for Medway (Mr. Marshall-Andrews) and for Redcar that the prosecution often pour information into the ear of a judge, and that they are concerned that that will bias the judge or that he will direct the jury in a way that he would not have done had it not been done in secret.
I will, of course, but I am trying to establish what he is against—the pouring of information into the ear, its being done in private, or the judge being unable to make a judgment about whether it is material to the continuance of the trial. It is interesting how many lawyers and barrack-room lawyers are barracking me this evening; we are obviously getting somewhere.
I speak as a lawyer, but a humble one—a mere solicitor. I hope to assist my right hon. Friend by pointing out that in the magistrates court, when a solicitor makes a submission on a point of law and seeks to exclude evidence, he must do so to the bench that tries the case. Therefore the bench that decides whether the evidence should be excluded is the same bench that goes forward to determine the case. The process that my hon. and learned Friend Mr. Marshall-Andrews presents as a difficulty is exactly the process that goes on in the magistrates court every day of the week.
I thank my hon. Friend for that continuation of my excellent relations with the Law Society, for which I am grateful, as I need to have someone in the legal profession on my side.
My hon. and learned Friend the Member for Medway barracked from his seat that it is not done in chambers. I do not mind where it is done, so long as it is done fairly, the proper judicial process is undertaken, and the judge makes a sensible judgment on the validity of the evidence.
At the moment, the pouring into the ear of information that is heard only by the judge and the prosecution is validated by the fact that it is the jury who decide the issue of guilt and innocence. Where, however, a judge is privy to information that is known only by him and the prosecution, and he is to decide guilt or innocence, cannot the Home Secretary recognise, first, that that is completely different, and secondly, that it will inevitably contravene the European convention on human rights, because the two sides will not be even?
No, I do not accept that it contravenes the European convention on human rights. Surrounded as I am by barristers and solicitors, those who would wish to be, and those who used to be, let me say this: we are here to represent the best interests of our constituents by ensuring that the course of justice finds the guilty guilty and acquits the innocent. That is what we are all here for. We have no desire whatsoever to have, even in a limited number of cases, a situation in which, despite evidence to the contrary, intimidation is shown and the case goes wrong. That would not be in anyone's interests, and it would have to be put right on appeal. We are all interested in finding solutions to real problems.
My right hon. Friend has taken in very well the fact that one of the problems is that of secret information going into the judge's ear that the defence cannot challenge. To avoid any risk of injustice from that, would he consider making available special counsel of the kind with which he will be familiar through Special Immigration Appeals Commission proceedings?
I am reluctant immediately to rule out such a possibility, even though it has already been discussed at length. I am reluctant to rule it out completely because I am keen to explore all areas and to find solutions wherever we can—I hope that we will be able to address problems in the House of Lords—rather than have a situation in which the Government put up a solution to a problem, then everyone gathers round to denounce it as the end of trial by jury and the end of justice as we know it. In their amendments, the official Opposition propose an alternative solution. I respect that, although I do not agree with their solution. On the serious issue of a small number of cases involving the most difficult criminality, we should try to unite to find a way forward.
I am grateful to my right hon. Friend. Speaking as a non-lawyer serving on the Select Committee on Home Affairs, I went along with the recommendation that was made, which was more or less broadly in favour of the views that the Home Secretary expresses. Nevertheless, I am concerned that this may be a slippery slope. If the arguments against juries that are advanced are valid, perhaps in future we will be told that virtually all criminal cases should be heard by a judge alone. A system that has been part of our legal set-up for centuries should be defended. Although I am willing to go along with the Home Secretary's arguments to some extent, I am worried about the slippery slope.
I am aware of the real dangers of the slippery slope. That is why we should listen to any suggestions about confining ourselves to dealing with tampering and interference with juries and to ensuring that we do not let the worst criminals get away with the worst abuse of the criminal justice system.
I shall draw to a conclusion to allow the House to debate the issues. We are talking about the worst elements of society deliberately setting out to destroy the very system whose credibility we seek to defend and for which hon. Members are honourably arguing. We must not undermine that credibility or create a slippery slope that takes us away from the system that has stood us in good stead over the centuries. I accept that that is the case in relation to jury trial as a whole. I merely ask that we address the situation in the real world as regards the worst of society and what those people will do to innocents abroad in terms of destroying a system that otherwise serves us well.
I hope that the right hon. Member for West Dorset will one day treat me to the Badger beer of Hall and Woodhouse—almost P.G., one would have thought—in the leafy lanes of West Dorset. I believe that it is known locally as "skunk ale". Perhaps when he and I have supped together, possibly after a Police Federation conference somewhere on the south coast, we will put our foot in it together.
It may surprise the Home Secretary to know that I want to speak mainly about the topics that amendments Nos. 2 and 3 cover. He tried to present an interesting argument, which took the following form: the Opposition must have acceded to the general principle that something needed to be done but since they suggested an implausible or ineffective alternative or set of alternatives, the Government's proposals should stand. That neatly ignores amendments Nos. 2 and 3, which would remove the Government's proposals entirely. They are our first preference. I shall deal later with new clauses 1 and 2 and amendment No. 13, which move in the general direction that he advanced. The problem with his argument is that it did not tackle some points, with which I am about to deal.
I am grateful for the Home Secretary's statement that the preservation of trial by jury is extremely important because it is true. Although that is a matter of agreement between us, it is important to set out for the record the extent of its significance and the reason for that. At first sight, the importance of trial by jury is not obvious. One could easily take the position that it has no intrinsic superiority over trial by judge. For reasons that I shall advance shortly, I believe that that is the Government's view. However, I believe that trial by jury is intrinsically superior. Its superiority arises from the relationship between the citizen, the state and the law.
Trial by jury involves the participation of the ordinary citizen in the business of the law, thereby preventing the court from becoming a matter of the state opposing the citizen. That is critical to the deepest foundations of our liberal democracy. I do not say that that applies to any liberal democracy. Others do not have the system of trial by jury, but at least my hon. Friends—and perhaps some hon. Members on the Labour Benches—agree with the conservative sentiment that when we remove one of the foundation stones of our system of liberal democracy, we cannot expect the whole to survive simply because others have found different methods of supporting such a system.
The right hon. Gentleman knows that my colleagues and I support the view that he outlined. Does he accept an additional element that reflects the same constitutional principle: the importance of lay magistrates, especially when they deal with guilt and innocence in the lower courts? They are ordinary, non-professional members of the public. It is regrettable that the number of lay magistrates has decreased and the number of paid judges who do the job has increased. The public would have more confidence if matters were moving in the opposite direction.
I am glad that I gave way to the hon. Gentleman because he brings me to my next point. I wholeheartedly agree with him. The principle of the layperson and the exercise of common sense in our courts is important. I agree that the lay magistracy is at least almost as important an institution as the jury in protecting the principle of the operation of common sense. I fear that although the Home Secretary and the Lord Chancellor have aimed in the Bill and elsewhere at a genuine drive for efficiency, they thereby sacrifice the cause of common sense. In justice, when the chips are down, common sense matters more than straight efficiency.
My right hon. Friend pointed out that the jury or the magistrate is representative of ordinary people. That is the key part of the representation. The Home Secretary suggested that if the representation does not comprise a mixture that ranges across the board, it is not sufficiently representative. Of course wide representation is best, but the key point is that members of juries and lay magistrates are not professional paid people but ordinary people with whom the mass of the public can associate themselves and thus recognise that the system is not set up by authority against them.
I entirely agree. My right hon. Friend better expresses the point that I was trying to make. Trial by jury reinforces to the general public the fact that justice in this country is a system not of the state opposing the individual but of society gathered to find out the facts. The jury represents society and finds the facts.
Will my right hon. Friend follow up his point and face the fact that the proposition to which he has committed himself contradicts the new clause that he tabled? If we are considering judgment by one's peers, providing that a person charged with a financial offence can be judged only by actuaries or chartered accountants denies that person a trial by his peers.
I shall deal with that at the tail end of my remarks. However, I stress for my right hon. and learned Friend's edification, and in seeking his agreement, that the first choice must be the preservation of trial by jury as we know it. Amendments Nos. 2 and 3 would provide for that. I hope that my hon. Friends will vote for them. The proposals in the new clauses are very much second best.
There is an important difference between reality and appearance. The appearance matters as much as the reality. It is true, thank goodness, that the judiciary remains independent of the Executive in Britain today.
The Home Secretary has cause to know that that is true. I celebrate the fact. Long may it remain so, but—an important but—the ordinary citizen does not perceive a judge in all his grandeur in the same light as a jury. The jury is representative of the ordinary citizen in a way in which a judge neither can nor should be. Judges are endowed with the majesty of the law and in that sense, although independent of the Executive, they represent the state. There is a difference.
The right hon. Gentleman is talking about procedure rather than anything else. He speaks of common sense. Is he more interested in the right decisions, or in mere appearance? Is he saying that judges are less capable of reaching the right decision than juries, or is he just saying that that is how it appears?
I think that there are two answers to that question. Like, I suspect, the House as a whole, I am interested both in the right decisions and in the way in which the law in general is seen by the citizenry. The House certainly needs to be interested in both those things. If what we are interested in is a criminal justice system that works, public confidence is critical. What counts is not merely the individual case, but the way in which the system is seen by the citizen.
Is it not self-evident that the calibre of a jury decision will be higher than that of the decision of any individual? Twelve diverse, randomly selected people are listening, and have all the time in the world to debate and to cancel out each other's prejudices.
I will not argue with the hon. and learned Lady about the term "self-evident", but it is clear that the system of applying 12 minds to a question of fact, operating on the basis of common sense, is a good system that has worked. We would at the very least be taking a risk by moving, on a large scale, to trial by judge alone.
My next question is: do these proposals contain real threats to the prevalence of trial by jury? An important part of the Home Secretary's argument is his claim that he is not really undermining trial by jury. The problem with that argument is that it is wrong.
Yes. I shall deal with that later, and when I do I will—if I may—cite the hon. and learned Gentleman's intervention.
Are the Government's proposals really so different in effect, if not motives, from the earlier mode of trial legislation? That is an important question. If the Bill constitutes a minor adjustment to the jury system, we shall have one kind of debate; if it constitutes a wholesale attack on that system, we shall have quite another.
Let us take the case of a jury that is held to be about to be tampered with. Let me point out to the Home Secretary—I am not saying that he did not know this, but he glossed over it in his speech—that we are making a critical distinction between two sets of circumstances. In one, a jury has been tampered with: amendment No. 13 deals with that. In the other, the jury has not yet been tampered with, but the prosecution successfully argues that it might be. The Home Secretary wants to let the prosecution argue that the jury might be tampered with, and, under his proposals, if the prosecution persuades the judge of that proposition, trial by jury will fall, subject to appeal.
What means will the prosecution adopt to argue that the jury might be tampered with? It will allege that the crime of which the defendant is accused was very serious, very well organised, very violent, or something of the kind. Unless it has evidence of previous tampering on the part of the defendant, it will argue that the case should not be dealt with by a jury because such tampering might take place. I have just listed the most serious cases. In the most serious cases, the prosecution will be most likely to argue that the jury should not remain.
Is not this the real strength of the argument about tampering with juries? It is not just that certain cases lend themselves to such intervention; one thing we are all trying to do in the criminal justice system is persuade people to give evidence in the first place. Many people do not come forward because of threats and fear. In each of those cases, the jury might be interfered with because the first attempt to prevent the case from reaching the court failed. There are many such cases in many courts every year.
I think that the prosecution will advance the argument that I have described in a fairly wide range of cases, not all of which will be the most serious; but it is an important part of the argument that I am about to advance that the prosecution will tend to present the judge with that proposition in the most serious cases. The hon. Gentleman and I need not be at odds about that.
What about complex trials involving financial or property-related matters, often mis-described by the Government as fraud trials? I am not saying that fraud trials do not fall into that category, but the category is much wider. A major health and safety trial involving corporations will typically be finance-related, complex and involve property. It will presumably qualify. A strong attack by the criminal justice system on a serious drug-dealing gang may well involve complex financial and property-related issues. I am thinking not least of cases that we discussed in the context of another Bill.
Of what variety are the cases I have just described? They are among the most serious cases.What pattern is emerging? We can anticipate from the Government's proposals, I think plausibly—I am at pains not to put this in hyperbolical or overblown language—that, in many of the most serious cases, the prosecution will persuade the judge that the jury should be removed. That will bring about a bizarre situation. I agree with Simon Hughes that this will not be the sole outcome, but I expect a large number of relatively minor cases to go on being tried by juries, while a preponderance of the most serious will not be.
What will the Government tell the House then? They will say, "If we do not need jury trial for the most serious cases, why on earth do we need to preserve it for minor cases? Why should we be so inefficient"—I use the term of which the Lord Chancellor is so fond when referring to lay magistrates—"as to preserve the jury system for minor cases, having accepted that it is not necessary for major ones?" I fear that it would be difficult to resist that logic. This is not merely the slippery slope rightly described by the hon. Member for Southwark, North and Bermondsey; the Home Secretary is taking us well down the slippery slope.
Is the right hon. Gentleman not ignoring the fact that the vast majority of minor cases—if I may so describe them—are dealt with in the magistrates courts, without a jury, and that that will continue to be the case? The vast majority of criminal cases dealt with in our courts will therefore continue to be heard without a jury.
That is precisely my point. There will be a bizarre situation in which a large number of very minor cases will be dealt with increasingly by district judges, and a large number of very major cases will be dealt with by judges in the superior courts. Sandwiched between the two will be cases that are rather more major than the most minor, but rather more minor than the most major. They will be dealt with by juries. The Government will tell the House, "This is nonsense. We can do without the juries in the middle section." I know that that will be true—if the Government think about it, they will know that it is likely to be true—but I hope to prevent us collectively ever from finding out whether it will be true, because it is too dangerous to contemplate.
If we are going to argue the case rationally, as the right hon. Gentleman has been doing, we should not go into a kind of never-never land. We are dealing with a very specific group of cases—fewer than 100 a year—so we should not make presumptions that we did not make before, when 95 per cent. of cases were dealt with in the magistrates courts, higher courts dealt with cases on appeal without a jury, and the remainder were dealt with by jury trial. The removal of a few dozen cases does not materially change that position one iota.
I had intended to deal slightly later with the Home Secretary's repeated claim relating to fewer than 100 cases, but I shall deal with it now in response to his intervention. If I may say so, I think that that figure is accurate and phoney. It is accurate because it is a reflection of the number of cases in which there was jury tampering or that involved fraud trials. My argument is that the Bill—the provisions in print are what will govern this matter, not what is in the Home Secretary's fondest imagination—allows for a far wider application of the principle than that restricted number of cases.
Would my right hon. Friend allow me to reinforce his point by drawing to his attention the fact that, if we look carefully at clause 37—which I know that he has—we see that the grounds for securing a non-jury trial are the complexity or length of the trial? It is perfectly true that the Bill then attributes a cause for that complexity or length, but once we accept that complexity or length per se are grounds for a non-jury trial, why have the additional requirement? The Government will in due course ask the House to dispense with that additional requirement.
That is another point relating to the slippery slope, and I can only gently complain that it was the next point that I was going to make. My right hon. and learned Friend is right. I will not labour this point further. There are three or four other grounds for supposing that this is a slippery slope. The point here is clear: jury trial matters. It matters because of the structure of justice in its relationship to the citizen, and this is the beginning of a slippery slope away from it. Perhaps it is more than the beginning.
The next stage of my argument is also simple and clear. We have to ask whether any great gains will result from this great step. If the proposals were to result in great gains in the cause of justice—[Interruption.]—and if, as the Home Secretary suggests from a sedentary position, large numbers of criminals who would not otherwise be convicted were to be put behind bars because of these changes, without any significant risk of the innocent being convicted, I can see that there would be an opposing argument.
But Mr. Marshall-Andrews, who reminded me that there is a very high conviction rate in the relevant sorts of trial, is right. The 92 per cent. conviction rate that has been adduced in relation to cases involving the Serious Fraud Office is also right. The evidence from jury-tampered trials is that, on the whole, people have been good at picking the problem up and defending those who are on the juries, and that the conviction rates that attend subsequently are high. I know of no serious empirical base for supposing that moving so far down such a slippery slope is justified by any great and immediate gain. There will perhaps be some gain, but it will not be so great as to be proportional.
I am not sure whether it will give the right hon. Gentleman any satisfaction to learn that I might vote with the Government tonight. I was on the Home Affairs Committee, we made our recommendation and I went along with it. But if I do, I shall simply be giving them the benefit of the doubt. The doubt remains, however, and the more I listen, particularly to the fine argument being advanced by the right hon. Gentleman—after all, if an Opposition spokesperson is making a good argument, why not say so?—the more that doubt reasserts itself in my mind.
I have to admit to the right hon. Gentleman that I am not persuaded by his arguments this evening. I would be more sympathetic to his point of view if, in the light of the fact that his party supports the Belfast agreement, which we have had for five years, and that the IRA has been on ceasefire for the six years since 1997, he could assure me that it was now Conservative party policy to campaign for the restoration of jury trials throughout the United Kingdom, of which Northern Ireland is a vital part.
Much as I should like, for all sorts of reasons, to buy the good will of the hon. Lady, I am astonishingly clear that, mercifully, my remit extends to England and Wales—not that I have any actual remit; that lies with the Home Secretary, but even my shadow remit covers only England and Wales. I ask the hon. Lady to contact my esteemed colleague, the shadow Secretary of State for Northern Ireland, who will have his own views on that difficult matter.
I am grateful to the right hon. Gentleman for giving way a second time. I find myself offended. He began his remarks by saying that the jury was a critical part of our liberal democracy and that if we removed it, we would have removed one of our democracy's foundation stones. I do not accept that he can simply shift the burden to Mr. Davies. The shadow Home Secretary must address the question this evening. As someone who gave an interview to The Independent in which he stated that jury trial was the bulwark of 800 years of our democracy, he cannot allow part of the United Kingdom not to have that pleasure.
Mr. Deputy Speaker, I have never been more grateful to you.
The final stage of my argument is also clear and simple. The House must obviously take the Government's proposals seriously, and we must therefore ask whether there are any balancing arguments. Are the Government pointing out things to which we need to pay attention? I have already explained why I do not believe that the Government are justified in making any change on the basis of the purported gains from the proposals—I stress this for the benefit of my right hon. and learned Friend Mr. Hogg, among others—and that is why we shall press to a vote amendments Nos. 2 and 3, if you will allow us to do so, Mr. Deputy Speaker, and why that is our first preference.
We have tried to identify the evil that the Government believe exists. We have also tried to produce constructive alternatives to deal with that evil, or, indeed, those two evils. We have done that in the spirit of compromise, and I want to explain to the Home Secretary quite personally the reason why. We will not compromise on the general principle. I shall ask my noble Friends in the other place to fight to the last breath on these matters, and if that means cratering the Bill, I am prepared to see it cratered.
Because I am taking that position, I have sought every means at my disposal to ensure that there is an escape route, so that much that is good in the Bill can get through without a confrontation between the two Houses. That is why my hon. Friends and I tabled new clauses 1 and 2, incurring the odium of my right hon. and learned Friend the Member for Sleaford and North Hykeham, whose purity of mind I admire. That is also why we suggested the possibility of an empanelled, expert jury, and why we tabled amendment No. 13, which provides for the abandoning of a jury when there has actually been jury tampering. We did those things in the spirit of seeking a compromise solution that could avoid the Bill falling and which would preserve, in each case, the existence of the jury—I admit that, in the first, it would be an unsatisfactory jury—and point up the attachment of the House and of Parliament as a whole to the principle of jury trial, thereby preventing the descent of the slippery slope.
I accept that the solution we are suggesting is second best and not fully satisfactory, but trying to prevent us from rolling down the slippery slope is better than allowing us to roll down it. For the sake of avoiding a confrontation between the two Houses, we are prepared to move to that compromise. That is the only basis on which we have put it forward.
We will not press those proposals to the vote tonight, but I hope that the Home Secretary will see the light and accept the purport of amendments Nos. 2 and 3 when, as I profoundly hope, they are sent back to the House by the other place. I give notice now, however, that if he will accept neither those amendments when they return nor the compromise position, we are prepared to crater the Bill and force him to use, a year later, the Parliament Act so as to take a stand on what I continue to regard as one of the fundamental principles of this country's criminal justice system—our adherence to and belief in the jury system.
I shall be brief. The Home Affairs Committee addressed these issues in its report on the Bill, and we started by welcoming the Government's intention to retain jury trial in either-way cases. It is sometimes forgotten that they have form in this area, as they made a couple of attempts two years ago to abolish jury trial in either-way cases. I am glad to say that those attempts were seen off, and very wisely the Government dropped the proposal. I refer back to those attempts in relation to the argument on slippery slopes, because they are a sliver of evidence for the suggestion that something bigger—perhaps in the past, perhaps under another Home Secretary—might have been in the mind of the Home Office in respect of reducing the right to a jury trial.
On balance, the Home Affairs Committee accepted the argument that, in cases of complex fraud, jury trial could be dispensed with, but we did so only on the basis that there was a difficulty in finding a suitably representative cross-section of jurors for a long trial. We did not accept that juries are incapable of understanding arguments in complex cases. We took the view that it is the job of counsel and the judge to make the issues simple enough for ordinary mortals to understand.
Is there not another conclusion, too? The Crown has an obligation to ensure that the indictment is fairly simple and short, and to avoid extended conspiracy charges.
That is absolutely right, and it is in everybody's interest—the interest of the defendants, quite obviously, as trials that go on for months are time consuming and debilitating for all concerned, and the interest of the public, as such trials are enormously expensive. I have long believed that even the most complex arguments can usually be reduced for ordinary mortals to a few simple concepts that ought to be readily explicable for people as articulate as those who practise in our courts.
So, we did not buy the argument, and I am glad to say that, ultimately, at least when he appeared before us, the Minister, Lord Falconer, did not advance the argument that the purpose involves the difficulty of finding jurors capable of understanding the argument. The argument made to us was on the difficulty of finding a representative cross-section of jurors who would be available for a long trial. On those grounds, and those grounds alone, we accepted it, albeit reluctantly and albeit without unanimity.
My hon. Friend says that we accepted the argument with some reluctance. Does he accept that although the majority, and that includes me, agreed to the recommendation, there was a general feeling of being somewhat unhappy and a wish that such agreement was not necessary? There was certainly no enthusiasm, and he has made that clear.
There was not unanimity. We thought about the issue carefully, although it is not for me to meter the degree of enthusiasm that existed during the discussion. The conclusion that we reached was an on-balance one on the lines that I have suggested.
Is the hon. Gentleman, in saying that he rejects the arguments about a complex matter being too difficult for a jury to understand, saying also that he rejects clause 37, which provides for a jury being discharged in certain complex or lengthy trials—either condition is sufficient—and an alternative being put in place?
We accepted the argument presented to us by the Minister on the difficulty of finding juries to deal with lengthy trials, but the complexity argument I do not buy.
It is hard to argue with the Home Secretary's point that where there is clear evidence of jury tampering the possibility of a non-jury trial ought to be provided for, because it clearly is in the public interest that villains should not be able to tamper with juries. I have heard nobody seriously dispute that. I would say only that it ought to be demonstrated, not just alleged, that such evidence exists. The police sometimes want to impress on the jury how heavy the villains are who are on trial. They do that sometimes by over-egging the security around the court so that everybody who comes into court has to see armed guards en route and all that sort of thing. That, of course, makes an impression on juries.
I say again that it must be clearly demonstrated that tampering has occurred. There must not merely be an allegation at which everyone throws up their hands and the jury is immediately dropped.
If the hon. Gentleman means what he just said and it was not a slip of the tongue, he supports amendment No. 13 rather than the clause, because the purport of that amendment is that tampering has to have occurred—the phrase he used—whereas the clause would allow the advancement of the argument that it might occur.
I believe that clear evidence has to show that tampering has occurred or that there is an extremely serious risk of it occurring. There has to be evidence, not simply an assertion.
If the hon. Gentleman will forgive me, I do not want to get bogged down on this point. The safeguard is in clause 41—the right of appeal will be allowed in cases where a jury trial is denied in relation to fraud and jury tampering. No doubt that right of appeal will be exercised.
I have a couple of queries. My hon. and learned Friend Vera Baird touched on the question of a judge having had to rule in private on public interest immunity and having heard things that will not be discussed in open court. I have high confidence in our judges' ability to distinguish between evidence given in open court and knowledge obtained privately. I certainly accept that all our judges, or most of them, are independent of the state, but in my experience judges, even the most intelligent, can be a mite gullible.
I have sat through major trials over which some of the finest judicial minds in the land have presided. No issue of fact and no detail advanced by counsel on either side was too small to be examined forensically by them but they missed the big picture entirely. Observing such trials, it occurred to me—it is true in other walks of life, not just the judiciary—that it is possible to be extremely clever and stupid at the same time. It is an observation that one could occasionally make about the profession of politics, too. Therefore, I have that reservation about the ability of judges to distinguish between what they hear and what is put to them privately.
I will in a moment.
I think that the Home Secretary conceded that, in such cases, a judge should be ready to hand over to another judge, not only so that the evidence is not contaminated but so that the trial is seen to be fair. That reservation worries me. I accept the assurances of the Government that this is not a slippery slope and I am glad to hear Ministers reaffirm that proposition today.
Before my hon. Friend leaves that point, may I ask him to address what seems to many of us to be a central point? If a judge hears prejudicial evidence, or any evidence, in private with the prosecution, they are the only two people in the court who are seized of that information—the defence does not have it—so how can that person, as a matter of principle, sit as a judge deciding guilt or innocence, and how can one possibly avoid contravening articles 6 and 12, to take only two, of the European convention on human rights, which require that there shall be equality between the parties?
I am not qualified to pronounce on the point about the European convention. No doubt Ministers have checked that very carefully but, on my hon. and learned Friend's first point, I am very sympathetic. I think that, in a case where the judge is party to a lot of evidence or information—some of it would not qualify to be evidence, which would be a bit iffy to put it mildly—that has not been part of the prosecution case, there is a strong argument for insisting that the case be heard by a separate judge.
Forgive me. I was in the process of winding up when my hon. and learned Friend intervened.
I reaffirm the point on which I think everyone here agrees: these reforms, just about acceptable though they are, should not be carried further. There should be no further erosion of the right to trial by jury. We should go thus far and no further.
I am happy to take part in what is an important debate. My hon. Friends and I on the Liberal Democrat Benches are signatories to amendments Nos. 1, 2 and 3. In relation to each of the Government's three proposals to change and to reduce jury trial, we do not believe that the case has been made. We do not oppose the proposals because there is not a proper debate to be had; there is. We do not do it because there is no argument on the other side; there is. However, having seen the work by the committees that preceded the legislation—especially Lord Justice Auld's committee—having looked at the White Paper, having sat through the Committee that considered the Bill and having looked at the evidence, we do not believe that it would be right to do away with jury trial in those three cases. To use the obvious test, jury trial is so well established and works so well that the case would have to be made beyond reasonable doubt for that to be changed and it has not been, so we stand by the present position.
The Chairman of the Select Committee on Home Affairs, Mr. Mullin, referred to the fact that in the previous Parliament—my hon. Friend Mr. Heath asked the Home Secretary a very good question about this—this House and the other place fought very hard to resist a wholesale, full-frontal assault on the jury trial system and Parliament won, thank goodness. This is not a wholesale, full-frontal attack on the jury trial system. It is a staged attack of a lesser nature. It proposes a little less jury trial rather than a lot less jury trial but, like Mr. Letwin, his colleagues, many Labour Members and, more important, many non-politicians and non-lawyers out there whom we represent, we are persuaded that, once one starts to move away from such a well-tried and well-established system, it is very difficult to resist arguments for further change and there is little logic in going down a road so far and not going down it further.
Roughly 29,000 people serve as lay magistrates in England and Wales and 200,000 people a year serve on juries—a significant cross-section of the British public, the like of which Parliament and the judiciary will never be. They are a very great protection to ensure that the criminal justice system is the people's justice system, not the professionals' justice system.
I want to give six reasons why jury trial should be held on to, unless the case is so overwhelming that it should be changed. First, it works, and if it works we should not seek to replace it. In the cases that we are talking about, it also works. Figures have been cited in the Chamber about the conviction rates in the most difficult and most complex fraud cases, which arguably would be the least likely to secure the understanding of a jury such that it felt comfortable about convicting beyond reasonable doubt. The conviction rate in those cases is much higher than elsewhere.
I represent a lot of people who have been defendants, and other colleagues will, to varying degrees, have done the same. No defendants have complained to me that they would rather have had a judge try their case than a jury. That has never been the cause of a queue at my surgery or a lot of letters in my postbag. In fact, I have had rather good reports of the jury system by those who participated in it. There are many criticisms of the criminal justice system, but the jury system has not attracted criticism. We should be careful to focus on the places where there is criticism.
Secondly—we referred to this and I will not elaborate—jury trial, like the lay magistracy, increases public involvement in the criminal justice system. Trial by judge self-evidently reduces the involvement of ordinary people in that system. The more people are removed from it, the less they feel comfortable about it and confident in it because the less they understand it.
In that context, I pay tribute to my local Crown court, Southwark Crown court, which looks after Middlesex Guildhall, Blackfriars and the old Knightsbridge Crown court, which has moved. It opened its doors on a Saturday recently to explain to the public what happens. It had mock trials, mock pleas and quizzing of judges. It is hugely important that the public feel that it is their place. There were queues at the door to go in, to people's surprise. The public have an interest—[Interruption.] Mr. Marshall-Andrews smiles, suggesting perhaps that those people wanted to learn a few things in preparation for later life but they looked a law-abiding group to me.
Thirdly, as we have said, jury trial is trial by the unpaid and the unprofessional but it is also trial by those who do not come with a reputation. The blunt truth is that judges have reputations—as a soft judge or a hard judge, a tough judge or a less tough judge. When one gets a jury, one cannot predict. One cannot say that it will come to a particular view because it is a cross-section. Judges do not have that lack of reputation, which is extremely important in terms of the confidence in each case.
Will the hon. Gentleman confirm that, in a very restrained way, he is telling the House that many judges are unduly sympathetic to the Crown case?
There are certainly such judges, as there are stipendiary magistrates or district judges. The truth is that if one sits in court day after day, one's patience with defence cases may tend to wear thin. I could name a judge, but I will not, who used to sit in my local court and was the judge to avoid by any defendant, irrespective of their guilt or innocence. It was presumed that one would be lucky to escape that judge assisting the jury towards a conclusion of guilty. That does not apply to juries and never has done. The jury starts with a clean sheet, which is important.
Will the hon. Gentleman concede that some juries do not start with a clean sheet? He will be aware of my interest in sex abuse cases. For many of the accused in such cases, the opportunity to go into a court without a jury might be of positive benefit, given the predisposition of the public in relation to such offences.
I do not accept the hon. Lady's view. There are proposals in the Bill that would make juries start their job without a clean sheet by allowing them to know of previous convictions and history, which would hugely prejudice them. It is proven that somebody with a previous conviction for a sex offence, whatever the new charges might be, will be thought much more likely to be guilty because the public, understandably, have a particular dislike of the offence. I do not accept what she says; juries do a good job when they start with a clean sheet.
The next point, importantly, is that when we have a jury, the case must be put in language that ordinary people understand. With trial by judges, the whole thing can disappear from the realm of the ordinary person. One of the tests of a good case is whether it can be put simply, and I have seen complex cases presented very simply. There can be acres of paper in a complex fraud case, when the issue is very simple. Did somebody fiddle the books? Were they honest or not? Did they tell the truth? The jury understands that if it is put to them clearly, as do the public and reporters.
The collective judgment of character by 12 people from different walks of life is clearly a better test of guilt or innocence than the judgment of character by one person from a very particular walk of life. I served as a judge's marshal soon after I qualified as a member of the Bar, and sat next to a great judge in the Liverpool Crown court. However, Mr. Justice Cantley came to the court with one view. It was important that the collective view of the jury was there to pronounce on guilt or innocence, as opposed to the judge, who then decided on the punishment.
On complexity, an important allied point is that the presence of the jury requires that the whole of the case be capable of being understood and of being explained simply, not only for the benefit of the jury but for the benefit of the public. Anyone who goes to the Court of Appeal, where professionals are addressing professionals, will see that, very soon, it becomes difficult to follow the plot even if we do not descend into Latin, which lawyers do. The only words that might be understood if the proposals go through might be "guilty" or "not guilty" pronounced at the end. That is completely unacceptable.
I endorse entirely what the hon. and learned Lady says. It is important not only that the 200,000 who serve in the jury box understand what is going on, but that the public who read the papers and sit in the gallery, as well as families, friends and relatives, also understand.
I will not at the moment. I am not trying to be rude, but we have until 8 o'clock because of the guillotine and I am conscious that others want to speak.
Each of the proposals—first, that defendants be allowed to seek trial without a jury, at their instigation; secondly, that complex or lengthy trials be conducted without a jury; and, thirdly, the proposals relating to the consequence of jury tampering—is too widely drawn. For example, in relation to a defendant asking to be tried without a jury, the judge has to decide whether the matters concerned
"give rise to exceptional circumstances which make it desirable in the interests of justice for the trial to be conducted without a jury."
That gives rise to a lot of questions.
As my hon. Friend the Member for Somerton and Frome said, it is not just complexity, but length that could trigger a jury being done away with. That could be on the basis of
"arrangements, transactions or records of a financial or commercial nature or which relate to property".
All sorts of triggers could be involved and the decision in the interests of justice by the judge could mean that that matter comes out of the jury's control.
The Government amendments on jury tampering are welcome, but we should not accept the principle; however, they seek to point out the deficiencies of the drafting. At the moment, there has to be a "real and present danger", which often occurs. The first of the other two tests—only one of which need apply—is that
"it would be necessary to provide police protection".
In the last two years, the Met alone spent £9 million on protection, so that hurdle could be got over quickly if there were a rumour of jury tampering. The second is that
"the level and duration of that protection would be likely to place an excessive burden on the life of a typical juror."
Others in this House—Ministers in particular—are under protection; I myself was for a period. If jurors are under protection, that imposes a burden. It would not be difficult for that test to be passed if the juror were trying to live a normal live while under protection.
We must resist going down the road. One might say, superficially, that if a defendant wants trial by judge—Mrs. Curtis-Thomas has argued this—they should be entitled to that. But that produces a two-tier justice system, and the decision of the judge as to guilt or innocence is far more likely to be open to criticism—including by the tabloid media—than the decision of a jury. I can think of many cases in which a jury trial has settled the matter where a decision by a judge would not have done; for example, a decision about a Member of the Houses of Parliament in front of a court but decided by a judge alone. Such cases, and many others, need the certainty that a jury trial would provide.
I shall keep this intervention short, Mr. Deputy Speaker. The hon. Gentleman, in the past, has taken a considerable interest in Northern Ireland affairs and is familiar with our non-jury procedures. I refer him to an article in The Times on
In mitigation, the hon. Member for North Down gets frustrated because we can never debate such matters in Northern Ireland Bills, and I understand her frustration. That would be a less worse option than some of the present proposals, and I share her view. I understood why the Diplock courts came about, but we ought to be seeking to restore to Northern Ireland the system that we have had here. We ought to have the best system first, and only if that does not work should we go down another road.
On the length and complexity option, the reality is that often, middle-class professional defendants would get a particular class of trial, while the rest would not. Long and complex cases involving fraud usually involve professionals. My hon. Friend Mr. Burnett knows more about this issue than I do, although not through first-hand experience, I hasten to add. Those without such a white-collar background would not be in the same boat. So often, there would be a particular system of justice for one category and a different one for another.
On jury tampering, in some ways the provision would be an encouragement to tamper, not a disincentive. That would be extremely dangerous. Colleagues on both sides of the Chamber know that it would provide a perverse incentive that could lead us in the wrong direction. Instead, we ought to draw a line and say that jury trial remains and will not be moved, however hard one tries. People who tamper with juries should be punished—taken to court, prosecuted and imprisoned—but the system should not be fundamentally changed.
I hope that, like me, my hon. Friend takes no comfort in the analogy drawn by Ian Lucas on jury tampering and magistrates. There is always an appeal—in fact and law—in terms of a magistrate's decision.
Does the hon. Gentleman agree that although his point is valid in itself, it is the stronger by virtue of the fact that the Government have worded the clause so loosely that a very low threshold has to be overcome before jury trial is scrapped? It is absolutely and chronically perverse.
I accept that point absolutely. I understand the argument, advanced by Vera Baird, that if we are to go down this road we need much steeper steps. However, although the position that Mr. Letwin takes, which is to suggest a compromise, is understandable in respect of some of these issues, it is the wrong one at the moment. The proposals are weak in terms of the width of the doors that they open; it would be far better to stand on the proven track record of the existing system. When we talk to our colleagues in the other place in the days to come, I hope that we discover that, on looking at the evidence, they share our view that the current system has much more merit than any of the alternatives.
For the avoidance of doubt, let the hon. Gentleman be assured that I shall ask my noble Friends in the other place to take the same stance as we shall take tonight: to oppose these clauses as they stand. The compromise exists only if we reach ping-pong and the Government would otherwise fail to have an escape route.
The right hon. Gentleman must sometimes be less generous in providing escape routes for the Government. It is sometimes better to show them that there is no escape; that way, they might change their minds.
Will the hon. Gentleman reiterate the fact that this House must take decisions on principle? If this House is defeated on matters of principle, by all means it is perfectly correct for Her Majesty's loyal Opposition to make it clear what their actions will be. This is the place that ought to be deciding on what happens in the law courts, whatever happens in an unelected second Chamber.
I should tell the hon. Lady, who knows that I respect her greatly, that that is absolutely our job. This is indeed an issue of principle, and somewhat unusually, we accord with the view of the majority of the people who send us here about the importance of it.
I apprehend that we will have a debate tomorrow about the independence of the judiciary, and as I said to the Home Secretary earlier, some of us are going to ensure that we stand up for judges and their independence. Liberal Democrats are very clear that today's debate is about standing up for juries. Parliament should stand up for juries. They are tried and tested. They are one of the most popular institutions in the criminal justice system. If everything else in it were as successful and popular, we would not need legislation such as this. Nor would we have the difficulties or the disaffection that, sadly, much of the rest of our law and order policy provokes from the people whom we represent.
I am aware that many Members wish to speak, so I will be brief. I shall of course confine myself to clauses 37 and 38, and to amendments Nos. 2 and 3. These provisions represent, as we all know, the most serious attack on the most fundamental of our civil liberties—jury trial —since the previous most serious attack, which took place during the previous Parliament. Even in the short time available, it is impossible not to reflect on the exquisite irony before us. During consideration of mode of trial legislation, we were repeatedly told that our fears were groundless because the most serious offences would always be sacrosanct in terms of jury trial. Now, of course, we hear precisely the reverse. It is impossible not to draw the conclusion that the Government, having got their hands badly bitten twice on that occasion, are now applying themselves to the dog from the other end.
This issue is relevant to the entire question of the slippery slope. If these provisions go through, the Government will return to mode of trial. I listened very carefully to the Home Secretary talking about the wisdom of penitence, and saying that the Government have learned their lesson. I am sorry to say that I do not accept or believe a word of it. I also listened very carefully to the previous Home Secretary's speeches on mode of trial. If I were sitting as a recorder or Crown court judge, and if mitigation were being put forward—you will forgive a small incursion into parliamentary courtesy, Mr. Deputy Speaker—and someone came before me and said, "Jack doesn't believe a word of what he said then and he's very sorry," I would not accept a word of it. The plain fact is that jury trial is a shibboleth to this Home Office—and, indeed, to this Government—and it is time that we recognised that fact.
I entirely agree with the purport of the hon. and learned Gentleman's argument, which is that the Government do not seem to have learned their lesson. Does he recall, and think appropriate in this context, the observation of Kipling, who said:
"And the burnt fool's bandaged finger goes wobbling back to the fire"?
Indeed; in fact I was about to quote Kipling in that precise respect. [Laughter.] However, I am grateful to the hon. Gentleman, who does it so much better than I could.
I should declare an interest, in that I have prosecuted and defended serious fraud cases for many years, some of which were extremely serious. I like to think that I prosecute and defend such cases with equal vigour, and if I ever had the misfortune to prosecute the Home Secretary—for an offence unidentified at the moment—I hope that he would find that that was indeed so. I dislike losing cases when I am prosecuting as much as I dislike losing them when I am defending, so I am not a wet liberal in that regard.
Much has already been said, entirely justifiably, about the Government's motives and reasons, and I shall cut that discussion short, save in respect of the representative nature of juries. The truth is that we have cracked this problem. In the vast majority of serious fraud cases, we take a day or sometimes two. We never have panels of 700 jurors. Sometimes we have 100, and we always find juries that are comfortable with sitting for the time involved in serious fraud trials. The idea that they are not representative is a dream of the Government; it is wholly unsubstantiated by those who practise in the courts. There is no law or learning on this; there have been no studies—sociological, demographical or otherwise—to suggest that these juries are unrepresentative.
The universal view of those who practise is that these juries are in fact more representative than any others. They include, it is true, slightly more women than men, which is no bad thing. They include, it is true, slightly more disabled people who are unable to work, which is no bad thing. Those drawn from a pool of people who are not working at that time include the highly successful—no bad thing if one is dealing with serious fraud—and those who have the misfortune to be unemployed. Again, that is no bad thing. These supposedly unrepresentative people have no difficulty whatsoever in convicting in nearly 90 per cent. of the cases that they hear. This Government would not suggest for one moment that that was due to some feebleness of intellect.
Having dealt with the Government's case—that is the totality of it—I shall now move on to the offensive and state as a plain fact that the provision will not work and will be wholly unjust. I say that for two separate reasons—there are many others, but I shall focus on the two most important. First, judges sit as judges of law; juries sit as judges of fact. That is our system. We cannot simply remove the jury from our system and pretend that we have invented an inquisitorial system. As I have said before, it is the precise equivalent of removing the wheels from a car and pretending that a boat has been created. The jury is essential to the system, as are judges.
The whole question of public interest immunity applies. The Crown claims public interest immunity for evidence that it believes should not, in the public interest, be put before the defence. The evidence is put before the trial judge, and the trial judge decides. The system works extremely well. The judge might say that the defence can see certain evidence, but not other evidence: the jury will then, in common with the defence, be ignorant of that evidence. A judge cannot hear PII claims—hear evidence that is not privy to the defence—and then try a case of guilt or innocence. That offends every single canon of natural justice and is a manifest breach of the European convention.
The Government have advanced no argument—absolutely none—in favour of the position, only the postulation that there could be a second judge. I tell the House that that is impossible, because the nature of public interest immunity is that the judge has to keep the matter under review throughout the trial until it reaches a point at which the judge says that evidence that he hitherto decided should not be given to the defence, now should be given to it. The judge knows the case throughout the trial. Even supposing that having another judge were possible, what would happen in a PII case: it would have to start again with another judge, and then on it would go to another judge for another PII application. I repeat that that cannot work. What will happen in practice? Judges, asked if they would try a case on their own will end up asking the prosecution whether PII factors apply to that case. In money laundering cases, such factors always apply, and nearly always in cases of serious fraud. The legislation is deeply flawed in that respect alone.
However, manifest injustice is evident in another respect. Frequently—or more often than not—trials involve more than one defendant. In serious cases— whether or not jury tampering has occurred—there may be a Mr. Big, a Mr. Not so Big and a Mrs. somewhere in the middle. Mr. and Mrs. might be bringing up the end and two or three misters are the minnows who have played hardly any part at all. They are all, quite rightly, tried together, but what will happen if an application is made to the effect that public interest immunity applies to one of them? They will all be tainted. What will happen if one of them tampers with a jury? They will all lose their jury trial—every single one of them. What will happen if complexity is postulated in respect of only one defendant, Mr. Big? They will all lose their right to a jury trial.
When I asked the then Minister, he confirmed that that would be the case, but said that it would be subject to an application to split the trial. So now we have two trials—the same trial once tried by a judge, and once tried by a jury. What will happen if two conflicting verdicts result: the jury says guilty, the judge not guilty? What will happen when it goes to the Court of Appeal? Absolutely none of those issues has been thought out or answered by the Government. The Bill manifestly attacks the most fundamental of our civil liberties and is wholly unworkable in practice. It is unjust, offending against every single canon of our criminal justice system. I urge all hon. Members to support the cross-party amendments Nos. 1 to 3; let us have done with this very bad part of a pretty bad Bill.
It is a pleasure to follow Mr. Marshall-Andrews. His point about public interest immunity is wholly conclusive. He has marshalled the arguments with great lucidity, so I shall be brief.
There is a problem with jury nobbling in clause 38 and we have not tackled it sensibly. I should like to make three brief points. First, it is said that there is a right of appeal and there is, but it is subject to leave and the Bill is silent about the grounds on which that leave will be granted or withheld. We must deal with that problem.
Secondly, and it is not quite the same issue that applies to public interest immunity, it is important that nothing on the application for a non-jury trial should be allowed to taint the subsequent trial. In the great majority of cases, that will mean that the application for the non-jury trial should be made by a judge different from the one who subsequently hears the substantive trial.
Thirdly, I agree with Mr. Mullin that before a non-jury trial is granted on the ground of tampering, it is essential that clear evidence is provided that either tampering has taken place or is likely to take place. A bald assertion to that effect is certainly not enough and will result in many non-jury trials being approved on the ground of likelihood alone.
I shall now move on quickly to clauses 36 and 37. I find myself in substantial agreement—I am glad to say, on this occasion—with my right hon. Friend Mr. Letwin. During the past six years since I was unfortunately driven from Government, I have taken part in several fraud cases, some of them long, which ultimately revolved around the question of whether the defendant was dishonest. Juries are singularly well place to determine that question. In common with the hon. Member for Sunderland, South, I do not buy the argument that jurors cannot address that question: they can and they do.
I make my next point with a degree of caution and diffidence because I hope to be treated with courtesy in courts as well as in the House, but some judges are unduly predisposed in favour of the Crown. That is not surprising. Judges spend many years listening to spurious defence case after spurious defence case, which can make them jolly impatient with defendants. I regard the jury system as an important safeguard to protect the innocent citizen in a way that I do not believe is true of all judges. I regret to say that, but I believe it to be the case.
My next point will be brief, because my right hon. Friend the Member for West Dorset expressed it so clearly. It is the slippery slope argument. Once it is accepted as a proposition that length and complexity provide good reasons for not having a jury trial, why extend it to a second condition and say that a jury is unnecessary because of the commercial or property nature of the case? Once complexity and length are conceded as appropriate grounds, we are heading towards getting rid of all jury trials.
Other right hon. and hon. Members want to speak, so I shall quickly make two final points. First, it is not impossible to find jurors to deal with long cases. The hon. and learned Member for Medway has greater experience than me in that respect. Although it is sometimes difficult, jurors are always to be found and empanelled.
Finally, as the hon. and learned Member for Medway said and as I mentioned at the outset, the public interest immunity point is absolutely conclusive. It is the nature of fraud cases that PII applications will be made, at least at the start. Once a judge starts hearing PII applications in the absence, as always, of the defence, how can we conceivably satisfy the requirements of article 6 of the convention? That point goes to the heart of the matter and demonstrates why the proposal is so ill thought out.
Amendment No. 1 would leave out clause 36, which couches as a "right" the option to opt out of jury trial. That alleged right should be considered in context. It will be given to a defendant, by a Bill that has repeatedly been described as one that was intended to rebalance rights towards victims and witnesses. Nobody has ever asked for that right. No client has ever said to me, "When you get into Parliament, can you legislate to get rid of these bigoted jurors and get me trial by judge, please?" Nor can we ignore the Government's recent attitude to mode of trial, when the very idea that the defendant should decide whether he should have trial by jury was called a bizarre idea, often in this Chamber itself. It is not that I doubt the current Home Secretary, but in two years the argument has been stood totally on its head, and I fear the level of future acrobatic prowess that may be required.
Will the Government be comfortable for long with a right for a defendant alone to opt for or against a jury trial, to be exercised arbitrarily with no recognition of the rights or wishes of the victim? The Home Secretary himself mentioned that point, but what about a black person in a racially aggravated case, faced with a white defendant who exercises his option to be tried by a white judge and not by anyone from a black community? What about a female rape complainant who comes to court to find that, in a highly gendered situation, the male defendant has the right to opt to exclude every other female from the case and for trial by a male judge? The perception of those two problems is dangerous enough, before one even considers the outcome. It is hard enough now to get rape complainants to come to court, and the very judges who will be given the responsibility are drawn from a group of men who have made the most appalling comments about rape complainants over the years.
The new right will inevitably be abused by defendants—mostly by criminals, but probably by all defendants—in localities. For example, in Redcar particular judges are known to be particularly liberal, and others are known to be particularly tough. If anyone asked me what I thought about the right to trial by judge alone, I would ask, "Which judge?" What will happen will be forum shopping of the worst imaginable sort. Local witnesses will know that a defendant has opted at the last minute for judge X because he is softer than the jury, or has opted for a jury because judge Y, who is hard, has been allocated to the case. That will rightly scandalise victims. The Bill includes provision that the defendant must exercise the option at an early stage, but that is unenforceable. If a defendant has the right to opt for or against jury trial, that cannot be taken away by rules of procedure. It will remain an option until the last day, and will inevitably be exercised on the last day when the identity of the judge becomes known.
What is the new right? It is a right for defendants in a Bill that is supposed to enhance the rights of victims. It is a right that no one has ever asked for. It is anti-victim, as I have described, and it will bring the courts into disrepute. It has no point and no purpose, because no one claims that juries do not work or are not valuable. Some 80 per cent. of the population supports them, so what is going on? It is the beginning of the end of trial by jury.
A year from now, those who have opted for trial by judge alone will have been tried more quickly, and thus more cheaply, than those who have been tried by a jury. One has to proceed in court at the rate of the slowest juror, and one cannot even ascertain what that is, because one does not speak to them and they cannot ask their own questions to clarify the points. The judge can say, "Yes, Mrs. Baird, I've got that, so you can move on." He can also ask about issues that are troubling him.
In a year's time, someone will say, "Hang on a moment, this burglary was tried by a judge alone in a week, but this almost identical burglary took two weeks to be tried by jury and cost twice as much." Why should somebody have legal aid for two weeks when it could be done in one? By then, cases will have had elections made at the last minute between judge and jury—forum shopping—to the scandalisation of victims, and the Government will say that that will not do. The Government will say that by analogy with the argument on mode of trial, it is bizarre for defendants to be able to make such decisions. The Government will say that they must take the decision about mode of trial away from the defendant and give it to the judge, who will exercise his discretion. However, the judge will be under pressure from disposal rates and financial factors, and there will be fewer and fewer jury trials. By that stage, the decision will be at the discretion of the judge, and therefore no one will any longer have the right to opt for jury trial—that is the important point. That is the destination towards which, inexorably, the Bill will take us—in clause 38, to a lesser extent; in clause 37; and, despite its apparent benevolence at first sight, in clause 36. If the clauses remain in the Bill, by the end of the decade we will be lucky to have a jury in the Eurovision song contest.
I have listened carefully to the debate, but I failed to hear the proof that juries were impossible to find, and that would have made a great deal of difference to the argument. We heard proof that it was difficult to get all cases to court, but that has nothing to do with an inability to find juries. We heard proof that some juries were tampered with, but that has nothing to do with the difficulty of finding juries in the first place. All the evidence that we have had has come from those who have explained that although it is not always easy to find juries, there is no example of a case that would have proceeded had there been a jury but was unable to do so because there was not.
The Home Secretary gave his case away by developing an argument that although juries could be found in all cases, the juries were not as representative as he would like. However, I know of no jury that is utterly representative, because that is impossible. What juries need to be is as representative as possible. Evidence has been given in the debate to show that juries, in the sort of cases that we are discussing, are—if anything—more representative than juries in general. So the Home Secretary has failed to present the very case on which he relied to bring the House to agree with him.
Instead, the Home Secretary has presented the argument that the cases involved are a narrow group—fewer than 100 a year—and that he has no intention of expanding that number. If the Home Secretary had no previous form, many of us might be willing to believe him, because he is an honourable man. However, in recent years—almost, in recent months—the argument has been that there should be no limitation on the number of cases in which the defendant should be denied a jury trial, except those that were very serious, which should be allowed a jury trial. So those that were not so serious would be refused a jury trial and those that were very serious would receive a jury trial—in defence of justice. The House denied that argument, but now—a few months later—the opposite argument is put before us. It is argued that any case that does not really matter—which is short, simple and uncontroversial—should have a jury trial, but any case in the group that previously would have been the only ones to get a jury trial will now be refused one.
Now the argument is precisely opposite to the one that we started with, and hon. Members are supposed to suggest to our constituents that the House will go along with this proposal because we were sure that it would never be extended and that we would never find any other group. However, we know perfectly well that, if we were to agree to the new clause, all those cases that were thought so important as to be removed from the jury's ambit would come along pretty soon.
Vera Baird is absolutely right. We know the argument—the proposal is cheaper, quicker and more certain. Yet in fact jury cases have delivered exactly the kind of proportion of guilty judgments that one would expect—not universal, but pretty high—because people do not bring such cases unless they have got a good case, so that is not the argument. I have to tell the Home Secretary that this case is not just not proven, but has failed even to be presented in a way that any sensible person could support, and I very much hope that the House will throw out this attempt as it has thrown out every previous attempt.
I will make only one very brief point. It is important to remember that the criminal justice system currently includes both trial by jury and trial before magistrates, so jury trial is not the only way in which justice can be reached. As Lady Hermon said, we have had a system in Northern Ireland, within the United Kingdom jurisdiction, for some 30 years—
It being four and a half hours after the commencement of proceedings on the programme motion, Mr. Deputy Speaker pursuant to Orders [
Question accordingly agreed to.
Clause read a Second time, and added to the Bill.
Mr. Deputy Speaker then proceeded to put forthwith the Questions necessary for the disposal of business to be concluded at that hour.
Amendment proposed: No. 2, in page 25, line 10, leave out clause 37.—[Mr. Letwin.]