With this it will be convenient to take the following: Lords amendment No. 33 and the Government motion to disagree thereto, Government amendments (a) to (f) to words restored; Lords amendment No. 34 and the Government motion to disagree thereto, amendment (c) to words restored, Government amendments (a) and (b) to words restored; Lords amendment No. 35 and the Government motion to disagree thereto; Lords amendment No. 36 and the Government motion to disagree thereto, Government amendment (a) to words restored, amendment (c) to words restored and Government amendment (b) to words restored; Lords amendment No. 37 and the Government motion to disagree thereto, Government amendment (a) to words restored; Lords amendment No. 38 and the Government motion to disagree thereto, Government amendment (a) to words restored; Lords amendment No. 39 and the Government motion to disagree thereto; Lords amendment No. 40 and the Government motion to disagree thereto, Government amendments (a) and (b) to words restored
Thank you for that clarification. I seek to reinstate part 7, with minor alterations that I shall mention later. On Second Reading, I said that we would respond to sensible debate and suggestions and that we would be prepared to listen to reasoned argument. It was therefore a surprise to discover that we faced neither sensible debate nor reasoned argument on part 7 of the Bill. The House of Lords chose simply to delete it, not to attempt to reflect on it, revise it or respond to my request.
I wish, therefore, to make one or two matters clear at the beginning of this debate. First, the time for posturing is over. Our amendments respond to the debates in Committee and in the House of Lords. They respond to the sensible observations that were made despite the Lords' pyrrhic victory in deleting part 7 completely. The amendments therefore respond to the will of Back Benchers in this House and to the reflections of the more sensible people in the upper House. I should make it clear, therefore, that we will make no further amendments to part 7. When the Bill goes back to the Lords, their lordships should consider whether they would like to see the Bill fall on the issues considered in part 7. I say that because it is time to make it clear that we are talking about some of the most organised and desperate criminals that this country has to deal with. We are not talking about people who have committed a minor crime or who have been accused of shoplifting. We are talking about organised criminality on a grand scale.
We challenge the Opposition parties on whether they mean what they say. For example, in a Sunday paper this week, Lord Strathclyde anticipated the introduction of measures to tackle criminality in the Queen's Speech. It is blinding cheek—if I may use that term—for the Leader of the Opposition in the House of Lords to talk about the need for further legislation to tackle crime and criminals, when we are trying to tackle the most organised criminals in our community with this Bill.
I am happy to address clause 41. As the hon. Gentleman knows, I was addressing the issue of trial by jury, in relation to those who have intimidated or sought to abuse juries, and in serious fraud cases. We sought to offer a choice in clause 41. All those political parties and individual Members of Parliament who enjoin the Government to provide choice should be in favour of choice on this occasion, given that we have faith in judges and in juries. Indeed, various elements in the House have declared their undying commitment to both juries and judges. As we trust them both, providing choice is a sensible proposition.
I am amused by the Home Secretary's remark that he has faith in judges. One of the most prominent characteristics of his time as Home Secretary has been his total lack of faith in the judiciary and his desire to make that clear. That aside, will he tell me—so that I may put this group of amendments into context—how many times a jury has been nobbled and a trial aborted as a result since the Government came to power in 1997?
I will happily obtain that detail for the hon. and learned Gentleman during the course of the afternoon. However, we are not weighing numbers. As a barrister would know, the scales of justice are not about how many trials—and there have been enough—but about truth and justice. It has been erroneously suggested that we are reintroducing the Criminal Justice (Mode of Trial) Bill, which fell in the previous Parliament. I read in The Independent this morning the voices of vested interests parading their support for the House of Lords in eliminating part 7 of the Bill. I do not know which side those members of the legal profession think that they are on, but this House is on the side of the innocent—those who are innocent of unwarranted charges, and the innocent in our communities, who see the perpetrators of crime go free because they dislocate, interfere with and disrupt the legal and judicial systems.
Does the Home Secretary realise that in relation to two of the three proposals he makes to restrict jury trial—that which would allow a defendant to choose to go before a judge alone and that which would allow complex or lengthy cases to be heard by a judge alone—the argument against is not only that we might end up with a two-tier justice system, but that trial by jury is not the cause of the public's current lack of confidence in the criminal justice system? Trial by jury is what gives many people confidence in the system, because 12 ordinary people decide guilt or innocence, not one extraordinary judge. Losing trial by jury risks losing the confidence of a great number of ordinary citizens in the present jury system.
We already have instances where, for all sorts of good reasons, a citizen is able to choose whether to appear before a magistrates court or before a jury. Allowing people a choice seems perfectly reasonable, as they are the ones being tried. It is in their interests that we are having this argument about what is the best method of ensuring that we convict the guilty and not the innocent.
Are we not in the business of trying to say where the presumption should lie? For the sort of reasons expressed by Simon Hughes, should not the presumption be that a jury trial is the norm? Yet clause 41 makes it clear that, if a single defendant applies, the trial will be held by a judge, save in exceptional circumstances. In other words, the presumption is not in favour of jury trial.
It is a trifle strange, then, that appeals—when the most detailed points of law are addressed—should be heard by judges, not juries. Those judges are presumed to be wise and capable enough to hear appeals. This is not a matter of interfering with our judicial system, but of providing checks and balances.
I will, but I am just checking whether someone behind me wants to get in. I always like to have my opponents in front of me, not behind me.
Will not the amendments proposed by the Government mean that all serious and complex cases may be tried without a jury, and not just long and complex fraud cases?
I refer my hon. and learned Friend to the text of the amendments under consideration. His point follows on from the point made by Simon Hughes. In the light of previous debates, the Government are altering the Bill to exclude cases—apart from those that involve serious fraud—that are long and complex. We have responded to the view that it is difficult to judge what sort of cases, apart from fraud cases, would warrant such designation and treatment.
I am listening to the Home Secretary carefully. I hope that he will help the House in respect of that particular proposal. He will appreciate that I have not had much time to consider the matter, but my impression is that one consequence of the Government amendments would be that judicial discretion as to what constitutes a long and complex fraud case would be removed. It is envisaged that the prosecutor will serve a notice, but as far as I can see, that notice will not be open to challenge, and there will be no opportunity for a judge to exercise discretion in respect of it. It would be useful for the Home Secretary to deal with that important matter.
It is an important point, but the debate on this clause is confined to long and complex fraud cases, for the reasons that I have enunciated. As has been spelled out before, the matter is open to challenge. The Serious Fraud Office would investigate such cases, and the presumption put forward by the Crown Prosecution Service would be open to challenge. No one has indicated anything to the contrary, but the proposals are designed to ensure that we can get to the truth.
This is very important territory, and I concede that the Home Secretary has moved to limit the proposal to fraud cases. However, there are two strong arguments against his case. First, there is a much higher conviction rate in most long and complex fraud cases than elsewhere in the jury trial system, and the SFO has testified to that. Secondly, almost everyone who has participated in such trials understands that there is normally only one fundamental and simple issue—is the person honest or dishonest? That question can be understood by a cross-section of the population in a jury of 12 as well as it can be understood by a judge who, by definition, is a jury of one.
We have been through all this on previous occasions. We are talking about the existing Highams cumulative test. The amendment restricting the proposals to serious fraud trials was designed to ensure that juries in those cases did not have to deal with a range of issues. We want to ensure that people found guilty on a simple test case cannot walk away, and that jury members in trials that last a long time do not end up being discharged because they cannot serve for that length of time.
On Second Reading, I gave the example of the Maxwell trial, in which 750 people were discharged before it was possible to elect a jury. People need to hold down jobs and have a life, and cannot be tied up for a year, or even longer in some cases. It is very difficult to get a jury of 12 good men and women of true origins and citizenship who reflect the community. We have been through all that before, and people either agree or disagree that we must get to grips with cases that otherwise are likely to end in acquittal. Such cases include the Levitt case and the Blue Arrow case when the courts themselves expressed concern about the threat to justice posed by the way that they were conducted.
Only a week or a fortnight ago, the Government indicated to Opposition parties that they were minded to introduce the Law Commission's proposals on multiple offending on Third Reading in the Lords. That would enable specimen counts to continue to be brought, but it very often happens in fraud cases that multiple identical matters need to be taken into consideration. In such cases, the Law Commission proposals mean that it would be possible for a judge alone to determine those matters at a Newton hearing following conviction on the specimen counts. We made it clear that we supported the Law Commission's initiative, but the Government chose not to introduce those proposals on Third Reading. Should not those proposals be closely linked to any reconsideration of whether juries should try fraud cases? Is not the uncoupling that the Government have performed regrettable?
Let us be clear about this: we are in favour of those proposals. From what the hon. Gentleman has said, I take it that the Conservative party also agrees with them. However, there is no timetabling of debate in the Lords—and the recent Division in this House shows that the Opposition would vote against the establishment of any such system in the other place. Extending Report stage to a fifth day would have extended the debate and disrupted consideration of other clauses. We would then have had to take the Bill even closer to the wire when it comes to the Queen's Speech. We do not want any posturing this afternoon about whether the Opposition would have negotiated a timetable for acceptance on Third Reading of the Law Commission proposals. I repeat that the Government are in favour of them, and we will introduce them at the earliest opportunity, but we cannot have games in respect of this matter. There is no procedure in the House of Lords for any sort of timetable or closure mechanism, nor any provision for the operation of the Speaker and Deputy Speaker system that is normal in the House of Commons. Until we have such a system in the Lords, we cannot take anyone's word that that House will be in favour of anything that we propose.
I am not a lawyer, and I listen in some bemusement when those of my colleagues who are lawyers discuss the finer points of law. My involvement in this matter is very basic, therefore. I believe that any loss of trial by jury, regardless of what is said in the House, will lead almost inevitably to the removal of rights that have been enshrined in this country for many hundreds of years. I am sorry to say that it is not clear to me what my right hon. Friend is saying. Is it that we have to go ahead with this very basic change because the House of Lords does not proceed in a way that he finds acceptable? If so, that is extremely worrying.
I shall try to clarify matters for my hon. Friend. In response to the intervention from Mr. Grieve, we are talking not about the amendments that I am moving this afternoon but about multiple cases where, at present, we have to take a specimen case when dealing with complex and serious fraud. The official Opposition pointed out that they were prepared to support the Law Commission's recommendations, which we support, that would allow those multiple provisions to be dealt with on the back of a specimen case. We are not dealing with that matter this afternoon and it is not material to the amendments under discussion, but it was material to the point that I was making to the hon. Member for Southwark, North and Bermondsey. I would hate there to be any misunderstandings about that.
Will the Home Secretary confirm that all the legislation that has come from his Department this parliamentary year has received a huge amount of co-operation from the House of Lords? The Government have accepted that owing to the lack of timetabling in the Lords, the upper House has been able to consider matters that the Commons has not been able to consider and has made great improvements, for example to the rape provisions in the Sexual Offences Bill. The Government have fixed the deadline—the backstop of the date of the Queen's Speech—and they are setting the limits to our debate. If the Lords do not agree tomorrow to what the Government propose on jury trial today, it will be the Government's insistence on such matters that will derail the Bill and not the insistence of the Opposition.
I do not accept that at all. I paid tribute on Third Reading of the Sexual Offences Bill to the work that had been done in both Houses, to which the House of Lords contributed. The same is true of the Extradition Bill, the Crime (International Co-operation) Bill and, to a lesser extent, the Anti-social Behaviour Bill; it is not true of the Criminal Justice Bill. We are debating the reinstatement of part 7. How can the hon. Gentleman suggest that the Lords did a superb job of scrutiny and revision when they simply knocked that part out altogether? It does not bear thinking about.
Furthermore, on the serious risk of jury tampering—I want to get to clause 43—trials that fail are a major worry throughout the country. People see those accused of the most serious crimes going free not because the system worked, but because it was tampered with so as to make a conviction impossible. One of our most senior judges wrote to my noble Friend Baroness Scotland, just before he was elevated to the Appeal Court, to describe his experiences. He was talking about an organised crime case that took more than three years. Each year, the jury was nobbled—it was discharged twice—although the case was finally concluded. He said that it was surely not a coincidence that the key players were acquitted after those three years and only the minor ones convicted.
If we do not change the law, we will end up with such situations over and over again. We will end up with what is happening in Merseyside with Operation Dolphin, where serious and organised criminality is taken to court again and again but the juries are tampered with—people are either threatened or bribed—and discharged. Would it really be sensible to say in such circumstances that the judge could not carry on with the trial, which is what the Opposition amendments suggest? Given that the original jury have been tampered with and the next jury would know that, it would be difficult to get another jury and they would be under constant threat too.
I was asked how many trials had been discontinued because the jury had been threatened or intimidated. In London alone, we are spending more than £9 million on constant 24-hour surveillance for a large number of trials. Of course, 24-hour surveillance, support and protection will continue, but we will ensure that the course of justice can take shape—clause 43 deals with this—in such cases. It will not be whispering in the ear of the judge, as was mentioned, because we have tightened the criteria for the evidence of serious risk—the real and present danger—which echoes the common-law test for police protection in those cases to ensure that we get it right.
Those figures are important. The fact that £9 million has to be spent in that way is regrettable, but it is necessary and it is a drop in the ocean compared with the overall bureaucracy costs of the Home Office. However, the Home Secretary did not answer the question, which was how often juries had to be discharged because of nobbling, which is not the same as having to provide them with protection.
That will be in the hands of the judge, who has to agree to the discharge of a jury because of what we will describe from here on in as jury nobbling. He has to determine whether the jury should be reformed and the case passed on or whether he should continue with it, and it is right that he should do so. We should not allow those who want to disrupt, dislocate and destroy the course of justice to succeed. When the end of a trial approaches and they fear conviction, they intervene. Let me be clear about this; let us get into the real world—the world not of inciting people to commit judicial murder, but of injecting a little common sense into the debate. People do not disrupt and intimidate juries, threaten their lives and those of their families, telephone them or email them if they believe that the accused is about to be acquitted; they do so for one reason only—because they think that those in front of the judge and jury will be convicted. They do so to ensure that the jury cannot continue and will not convict. We are dealing not with innocents abroad—we appear to be doing so in here, but not out there—but with the real world of people who are determined to threaten other people, and in some cases to take their lives and liberty.
May I take the Home Secretary back to clause 41, which enables a defendant to make an application to be tried by a judge and not a jury? Are we not simply giving a defendant the right to choose the tribunal that, in their opinion, is most favourable to their interests? That would simply make life easier for the sort of people that the Home Secretary is busily criticising.
I would hardly do that if I thought that a judge sitting alone was an advantage to the organised criminal, would I? I do not believe that it is. As I spelled out, I believe that in cases where a jury has been intimidated for the sole purpose of getting an acquittal or disrupting a trial so that the jury has to be discharged, a single judge should take the case forward. I have confidence that the judge would not be intimidated and that that system would lead to a fair trial, with the innocent being acquitted and the guilty convicted. I can hardly be expected to contradict that belief by contradicting myself on clause 41. In other words, I think that judges are in a position to make those judgments sensibly.
I can see the merit and strength of my right hon. Friend's arguments about clause 43. May I ask him about two points? First, in Committee, we were given the assurance that the provisions would be used only as a last resort and that, for instance, attempts would be made to move the trial to a different location, or juries would be offered taxis to and from court so that knowledge about the place in which they lived would not be readily available. We were assured that all those steps would be taken and that the provisions would be engaged only as a last resort.
Secondly, my right hon. Friend talked about not pouring nonsense into the judge's ear and said that he was trying to tighten up the measure to deal with that concern. I am grateful for that. However, the difficulty has been raised that the prosecution might want to say things to the judge, to persuade him to try the case alone, that could not be disclosed to the defendant. Has my right hon. Friend applied his mind to that problem?
On the first point, yes, every measure should be taken to ensure that due protection is provided, including relocation where appropriate. In fact, we have gone further by setting out examples to show where we believe it would be necessary to invoke the new provisions, such as retrial, following tampering in previous proceedings involving the defendant, or where such disruption had taken place and where intimidation or attempted intimidation was shown to have occurred in the light of the strict requirements that I set out earlier. We have gone further by including such provisions in the Bill. I shall give way to my hon. and learned Friend again so that she can explain the latter part of her lengthy question.
I thank my right hon. Friend for his assurance that trial by judge alone would be used only as a last resort.
My second point was that in order to persuade a judge that he should try a case on his own, it might be necessary for the prosecution to say to that judge, "We have intelligence of the following kind". It might not be in the public interest to disclose such material to the defendant, but how is the defendant to argue for his right to jury trial in that situation? When I raised a similar point on an earlier occasion, my right hon. Friend thought that there might be a possibility of appointing special counsel, such as those he is familiar with at the Special Immigration Appeals Commission, so that someone can represent the interests of the defendant in challenging that ex parte evidence without the obligation to report back to the defendant what he has heard. I hope that I have made the position clear.
I am familiar with my hon. and learned Friend's point about public interest immunity. She will be familiar with the case of Edwards and Lewis, where the judgment was unclear. We think that there is a need for clarity and, unusually, we have referred the matter to the Grand Chamber and we shall be prepared to look at and take the necessary steps to ensure that safeguards are set up. The point is serious, but there is not yet sufficient clarity for us to be able to deal with it this afternoon.
Clause 45 includes further provisions to deal with discharge due to tampering. I am at something of a loss in relation to the Opposition proposition and its relationship to clause 43. Our proposition is twofold: to make it clear that jury tampering must be the prime cause of discharge; and to insert provisions to make it clear that the judge must be absolutely satisfied that jury tampering has taken place before continuance without a jury.
We are mystified by the Opposition's proposal as it seems to confuse several issues in respect of the risk of tampering and where tampering has already taken place. They appear to be ratcheting up the conditions so that the threshold is higher. They appear unsure whether they want the excessive burden of 24-hour police protection to be a condition, and they do not appear to want the judge to carry on with a case when he or she has discharged the jury because tampering has occurred. I am at a loss to understand either how that relates to their amendments to clause 43 or how it would assist us to find a way forward. I presume that is why, in their wisdom, the Lords chose to throw the whole lot out rather than assisting us in finding a solution.
I am sorry that the Home Secretary cannot understand two perfectly simple concepts in respect of clauses 43 and 45. Where it is suggested that there should be no jury because of a risk of nobbling, but in fact no such jury tampering has taken place, we believe that an extremely high test should be applied before such a measure is implemented—if indeed it is implemented at all. We take the view that the question whether juries require police protection is not material at that point; the question is whether tampering would still take place. Where tampering has already taken place we think that there should be a different test because we accept the principle that it is extremely important that justice can continue to be done. Nevertheless, we think that the Government's proposals on clause 45 are far too loose and should be tightened up, which is what we have tried to do.
I certainly concede that the Opposition want to tighten up the proposals—they want to tighten them so much that they would be difficult to operate. My point is that we have a common-law test—I referred to it earlier—and we also have the new presumptions that I am setting out in the Bill. In addition, the judges will have to apply a test in respect of the protections that are being offered, such as the requirement for 24-hour protection—is it possible to protect the 12 members of the jury on an ongoing basis, week by week, or has the perceived and real threat of intimidation reached the point where it is impossible to secure a fair trial? In the cases that I have cited this afternoon, that was clearly not so.
I am sure that everyone in the Chamber wants to ensure that serious criminals do not go free when they are guilty simply because they have been able to exercise intimidation. If we believe that, the argument between us is about the point at which we can be secure in our minds that the tests have been passed and that it is better to have a judge sitting alone rather than a mistrial when criminals walk free. That is what we are talking about.
Our proposals do not threaten the basis of jury trial. The then Lord Chancellor, the Attorney-General and I discussed and agreed my suggestion that we should not proceed with the previous mode of trial Bills, and we are not doing so. As I said on Second Reading, the suggestion that we are doing that is an outrage—it distorts the situation beyond belief and misleads people of very good will into believing that we are doing something that we are not. We seek to protect justice, to get to the truth and to ensure that the amendments that we are putting back, and to which we are asking the House of Lords to agree, both reflect the debate over the Bill that has taken place over the past few months and secure the original intention—to ensure that we protect the public in those circumstances.
In the end, justice is about securing protection for the innocent in the community as well as for the accused, but it is also about getting to the truth and protecting ourselves. It is no good the Opposition presenting themselves as reinvigorated with the desire to demonstrate their commitment against criminals and their belief in the protection of the public if they come here this afternoon, go to the Lords tomorrow or come to the Commons tomorrow evening to suggest that our measures are not proportionate to ensure that we achieve that goal. They are proportionate. People will be asking a serious question: whose interests would we be following if we gave greater protection to organised criminals before the court than to the communities that we represent? That is why I am moving the amendments.
I am sorry that the Home Secretary seems to have adopted a tone of irritation, rather than rationally discussing the matters that the House must consider. I am also sorry that, in doing so, he seems very keen to cast aspersions on the motives of others and to be quite unable properly to envisage why the other place took such exception to the proposals on jury trial. He does not help his case by being unable or, apparently, unwilling to distinguish between the extremely different issues that surround the Government's proposals to fetter jury trial.
The debates on Second Reading and in Committee in the other place were extremely interesting, but from reading the report of the Second Reading debate I was most forcefully struck by the words of Lord Clinton-Davis—a stalwart member of the Labour party:
"To remove juries in allegedly complex cases supposedly too complex for them is utterly wrong. I agree with those in another place that what the Government are prescribing could end with the abolition of jury trials altogether. That may not be their present intention—but it remains a real risk."—[Hansard, House of Lords, 16 June 2003; Vol. 649, c. 613.]
If the Home Secretary wants an explanation of why the Lords took such a hostile view, let me say that it was because of that very real and justified fear.
Does my hon. Friend agree with the rather unpalatable truth that the views expressed in the other place are a more genuine expression of the will of the participants in the debate than the views expressed in this House, because the whipping system in this House has the effect of undermining the legitimacy of the views expressed in a vote?
I am sure that my right hon. and learned Friend is right. Of course, there is a lot of experience, freedom and loyalty in the other place, and I am sure that Lord Clinton-Davis would not have lightly expressed a hostile opinion on the Home Secretary's proposals, given his affection for the party in which he has spent most of his career. Furthermore, I am sure that he would not have done so unless he was expressing deeply held beliefs.
I ask the Home Secretary, rather than making general comments on the totality of the proposals, to consider each Government proposal in turn. He made great play of the fact that we are dealing with serious, organised and desperate criminals, but he must accept that clause 41, which he seeks to reintroduce and which gives a defendant the option of being tried in front of a judge alone, undermines the principle of jury trial, which I thought the Government supported, and has no relevance whatever to tackling serious and desperate criminals.
The chances are that many of those who will choose that route are everyday, tuppeny-ha'penny criminals. Interestingly, the Government propose a distinction in clause 41: they appear to be worried that, in some cases, the general public might feel great anxiety about certain criminals having the option of being tried by judge alone, so they seek to fetter that discretion under subsection (6).
I hope that the Home Secretary will repeat this afternoon that the Government believe, as we believe, that the principle of trial by jury is one of the hallmarks of our participatory democracy and that, therefore, if there are good and sound reasons for change—as in Northern Ireland, where the Diplock courts became necessary because of the security situation—that is one thing, but that it is quite another arbitrarily to undermine that principle for no good reason. That, however, is what clause 41 would achieve. I have never understood its logic, unless the Government are looking ahead to a time when jury trial starts to wither on the vine.
I believe in jury trial, precisely because it is a process by which not the state but the public at large bring condemnation on individuals' conduct because they wish to be protected from those individuals. It is an absolutely central concept, and I am sorry that the Home Secretary seems to have completely lost that view of it.
Is the hon. Gentleman aware that, to a large extent, he has expressed a view that I, as one of the few non-lawyers in the Chamber, share? Although the Home Secretary has stated that the purpose is not to undermine trial by jury in general, potentially, if not inevitably, there is always a fear, which is in my mind, that once the proposal has been enacted it could be applied to other cases and in future only a minority of cases will be heard by a jury. Although I am not sure whether I shall vote against the Government, I would find it very difficult to vote for what the Home Secretary is recommending.
I am grateful to the hon. Gentleman for that intervention, and I take seriously the views that he expresses. Once one undermines the concept and principle of jury trial, as envisaged in clause 41, siren voices will soon be heard in the Treasury and elsewhere saying how much cheaper it is to have trial by judge alone. In those circumstances, why go to the bother of all those poor people being empanelled and being put upon to serve on juries? Why have all those funny processes by which funny points have to be argued in the absence of the jury? Of course, juries are less convenient, but I believe that, in a country such as the one in which I wish to live, they are an inconvenience worth paying for over and again.
Was not one of the most telling remarks that the Home Secretary made during his somewhat un-put-together defence of this part of the Bill his reference to £9 million? When my hon. Friend and I have asked him about the number of juries that have been nobbled he has not been able to provide us with an answer, yet he has come up with the fact that a trial is costing £9 million to protect. Frankly, so what? [Hon. Members: "It is an annual figure."] It may be an annual figure, but it is tiny.
It is a tiny figure when one considers the fact that the cost of criminal justice is measured, I would guess, at about £1 billion a year. If one additionally bears in mind the police budget and judges' salaries, £9 million is a tiny figure compared with the overall figure that the state is required to pay for the justice system. Is it not interesting that the Home Secretary seems more terrified of the Treasury and the paltry figure of £9 million than he is of failing to defend the interests of justice for the public overall?
I agree with my hon. and learned Friend. The Home Secretary has given that figure and, yes, I very much wish that juries did not have to be protected, but that is a price that we have to pay in a difficult environment to ensure that justice is done in the way that we think is right. Adducing that argument is completely different from saying that it is impossible to protect juries, and it is the mixing of those two things that I find so worrying in the Home Secretary's approach, because there have been a series of propaganda utterances, rather than a rational discussion of the issues.
I do not want to take up too much of the House's time—I am aware that other hon. Members wish to speak—so I shall turn to the next issue in which the Government wish to fetter the right to trial by jury: certain complex or lengthy trials. I was somewhat charmed—I suppose that is how I should describe it—to hear that the Home Secretary felt that the original Government text had to be amended at this late stage, given the risk that the scope of those trials might go well beyond fraud to other types of case. I remember pointing out that risk very gently in Committee. I said that the only area in which I practise—health and safety at work—would fall squarely within those provisions, and the Minister told me that I was completely wrong. That does not exactly raise my confidence in the Government's competence.
The other point that the House must consider very carefully is that, even by the Government's standards of drafting, clause 42, whatever flaws it may have contained, previously provided a measure of judicial discretion. As I understand it, however, under the new proposal, by having trial on the back of a notice under section 51B of the Crime and Disorder Act 1998—which I had considerable difficulty finding until I realised that it is inserted by the Bill and exists only as a figment of the drafter's imagination—there will be no discretion. If I am wrong, I hope that the Home Secretary will correct me. The question of judicial discretion runs right through these proposals. The Home Secretary might recall that when this matter was debated on Second Reading, Lord Woolf, the Lord Chief Justice, forcefully expressed the most grave concern about the totality of these proposals:
"I recognise that many strong and sincere opposing views will undoubtedly be advanced to your Lordships. In those circumstances, instead of becoming involved in the matters which will be well ventilated before your Lordships, I propose merely to stress that if these powers remain part of the Bill, it should be made clear that they can be exercised only when it is in the interests of justice for this to happen. That should ensure that there is the minimum risk of the exercise of those powers resulting in injustice."—[Hansard, House of Lords, 16 June 2003; Vol. 649, c. 573.]
If this measure fetters judicial discretion, it runs contrary to the tenor of that argument.
I want to make it absolutely clear that I agree entirely with the Lord Chief Justice's comments. As far as I am aware, the new clause's provisions on discretion reflect the tenor of the hon. Gentleman's amendment—that, taking clauses 43 and 45 together, the discretion would be removed because there would be no power for a judge to decide to continue to sit in prolonged trials; there would have to be a fresh trial and a jury reconvened.
If the Home Secretary will allow me, I shall return to that point when I come to clauses 43 and 45, because I think that he is wrong on that issue, and I shall explain why.
The Opposition do not believe that the proposals on complex or lengthy trials are necessary. In the current year, the Serious Fraud Office, which deals with the most complex cases, has achieved a conviction rate of 92 per cent. Since it was set up, it has achieved a conviction rate of 84 per cent. That simply does not support the Home Secretary's view that juries are unable to deal with long and complex trials.
The Home Secretary knows of the Law Commission's recent proposals on multiple offending, which is closely linked to fraud. In many instances, a trial for fraud will involve specimen counts, with many other offences being taken into consideration. I fully accept that the mischief at the moment is that, short of having a lengthy trial, it is difficult to deal with those offences if a defendant who has been convicted does not accept them. That is why I was delighted when the Government suggested that they intended to incorporate the proposals on multiple offending in this Bill. I believe that such a proposal would be given a fair wind were it ever to come before this House. It is precisely because such procedures may exist that the House should be so cautious about, in the same breath, getting rid of juries for lengthy and complex trials. I do not believe that is necessary. The need will certainly be reduced, and, as I asked the Home Secretary, where is the evidence that juries cannot deal with such cases? If the evidence is that they can do so, what possible good reason exists to fetter their right to hear those cases in exactly the same way as they deal with any other criminal who is alleged to have committed an indictable offence?
Does my hon. Friend also agree that a jury is much more likely to be able properly to consider a case if substantive offences are charged rather than the Crown coming forward with a charge of conspiracy?
Speaking from personal experience, my right hon. and learned Friend is absolutely right on that point. Keeping matters simple is in the interests of justice and of achieving the conviction of the guilty, and my experience is that fraud trials tend to go wrong when the prosecutor overloads the indictment and fails to keep matters simple. Oddly enough, when matters become muddled for the jury, they also become muddled for the public, so the risk with trial by judge alone in long and complex fraud trials is that matters will appear so esoteric that, even if a conviction is recorded by the judge, the public will fail to understand the full extent of the criminality of the person concerned, which we should avoid.
Is the hon. Gentleman's proposition that it is more important that the public should understand what went on, even if a guilty man is found innocent, than it is to get a conviction, even if the public were not absolutely clear about the exact nature of a trial that lasted for 18 months or more? Does not that fly in the face of the Roskill report of 1986, with which he will be familiar as a lawyer?
Justice must be done and be seen to be done. It is desirable that both those things should happen, and I believe that both those things can happen. In the light of the Serious Fraud Office's excellent work in simplifying fraud trials and bringing them to a conclusion, and of the Government's proposals on multiple offending, which could be of great benefit, I do not believe that the proposed measure is necessary. If necessity could be made out, I am sufficiently pragmatic to listen carefully to what the Home Secretary has to say. Where is the necessity for this measure?
I want to deal finally with the issue of jury tampering, on which there are two distinct clauses. One provides a mechanism by which a judge may try a case without a jury when he considers that there is a risk of jury tampering but none has occurred. The second deals with instances in which jury tampering has taken place, such that a jury must be discharged in the course of a trial. If I may say so to the Home Secretary, those are two very different concepts. There is, however, one thing on which he and I can entirely agree: it would be a disaster if a state of affairs were ever to exist in this country whereby trials could not take place at all because of jury tampering, and justice could not be done. That was what underpinned the decision to set up Diplock courts in Northern Ireland, and I fully understand the rationale, even if I regret that a state of affairs arose that made that necessary.
Clause 45 deals with jury tampering. I say to the Home Secretary, as I said in Committee—and, heaven knows, as I said to the Prime Minister one day in Prime Minister's Question Time—that I understand what the Government are trying to achieve. If, as the Home Secretary says, the evidence is such that this is a deteriorating situation that is gravely inhibiting the processes of justice, we are prepared to co-operate with the Government to try to arrive at a formula that would allow for trial without a jury in those exceptional circumstances. The Home Secretary told me earlier that the amendment that I tabled to tempt the Government into dialogue was flawed because it did not envisage the judge continuing with the trial on his own. If he cannot understand why it would be impossible for a judge to continue with a trial on his own after the discharge of a jury, he does not understand some of the basic and elementary features of the criminal justice system. That situation might cause the utmost unfairness. It could not rationally be done, so there would have to be a retrial in front of a judge, if that was the exceptional course that had to be adopted.
May I reinforce my hon. Friend's point by putting an example to him? In the first trial, there could have been a whole class of evidence that is not used in the second trial. In such circumstances, the trial judge would inevitably have in mind material that was adduced in the first trial, but not in the second one.
My right hon. and learned Friend is absolutely right. It would be impossible and undesirable for a judge to continue in such a situation. We would need a fresh trial with a fresh judge.
I hope that this will be my final intervention on the hon. Gentleman's speech. Does he therefore agree, in the same vein, that where a jury had been intimidated it would be difficult for witnesses who had already given evidence to be called in the second trial? That situation is not impossible, but it would be difficult, as Mr. Hogg pointed out. One must compare witnesses who put their necks on the block with judges making judgments or the need for a jury to hear evidence presented in a new way.
The Home Secretary says "threat", and there are occasions when witnesses are threatened. Equally, however, it is not possible to hold a fair trial if the procedure shifts from trial by jury to trial by judge alone halfway through a case. It is as simple as that—it is not procedurally possible.
I agree with the hon. Gentleman. Would the provision not be in breach of article 6 of the European convention on human rights, because there could not be a fair trial in such circumstances?
I agree with the hon. Gentleman. The provision would be in breach of article 6. It is a non-starter. Leaving aside everyone else's views about the Bill, all the lawyers who practise in the courts to whom I have spoken regard the measure as nonsense and completely unworkable.
May I give my hon. Friend a further example to help him to destroy the Home Secretary's non-argument? No one in their right mind would think it right to allow a retrial to take place in front of the original jury who had heard prejudicial evidence against the defendant. Simply transferring the tribunal of fact from the jury to the original judge would not cure the position. I would have thought that Ministers might have got their heads around that much.
I agree with my hon. and learned Friend, although part of the Government's idea is that the judge continues seamlessly, which is equally impossible.
I hope that the Home Secretary will consider our amendment to clause 45. Of course, it is drafted using tighter language than his provision because I want the courts to make examinations in minute detail if applications are made for a retrial without a jury, because juries can often consider cases after jury nobbling has occurred. I hope that the way in which we have drafted the amendment—it includes the word "sure" and relates to a great risk—would help to achieve that.
I turn to applications by the prosecution for a trial to be conducted without a jury if there is a danger of jury tampering. The Home Secretary expressed surprise that our amendments were differently worded, but that is because they address two completely different situations. [Interruption.] The amendments are not contradictory, and if the Home Secretary wishes to intervene, I shall give way. There is no contradiction because we say that before a jury is empanelled, there must be an overwhelming risk of jury tampering in order to show that a fair trial could not take place. A court should not consider how long a trial will last or issues of protecting juries at that time. It should decide on a simple question: if a jury were given protection in the usual way, would there be such an overwhelming risk that jury tampering would take place that it would justify an exception to the rule that there should be a trial by jury? I hope that the Home Secretary will think about that further.
Will the hon. Gentleman put his mind to one thing that relates to both his amendment and the Government text, because it appears to many Labour Members that they suffer from the same danger of causing an injustice? If one defendant, however minor, in a case with, say, five, six, seven, eight, nine or 10 defendants is, or may be, guilty of jury nobbling, all defendants would lose their right to jury trial. Furthermore, under the Government's proposed subsection (7) to clause 43, which gives examples, all defendants would lose their right to jury trial in any future trial, as would anyone they were tried with in that future trial. I welcome the hon. Gentleman's views on that because I agree with much of what he says.
I have no difficulty agreeing with the hon. and learned Gentleman. That said, in a spirit of constructive dialogue with the Home Secretary, I am prepared to work my mind around to the possibility that one could end up with a case, although I find such examples far-fetched, in which it was apparent from preceding events that the ability of a jury to try the case without being tampered with, intimidated or prevented from returning a true verdict was such that it would be proper to adopt a Diplock court approach. The hon. and learned Gentleman is right that that would raise a concern about future trials. A fresh look should be taken at future cases and they should not be tainted by what happened before. That is undoubtedly one problem with the Government's proposals.
I do not want to take up more of the House's time. Others wish to speak. I simply say to the Home Secretary that I hope he understands how the Opposition see the problem. We want a constructive engagement on jury tampering, if that is possible. Beyond that, however, I had hoped that the Government would adopt a more flexible approach to the issues, which have caused great anxiety across parties, but I regret to say that they have not done so. Even at this late stage, I hope that the Home Secretary will revise his approach.
I want to make an observation on the amendments and to put them in the context of debates in and outside the House on the development of the criminal justice system. It is striking how often we are told that we face an unstoppable rise in crime, with criminal gangsters dominating the country and our communities and acting with impunity. Yet whenever there is an attempt in legislation to focus on the shortcomings of a part of the criminal justice system, we almost always end up in a debate like this one, which suggests that not much is wrong with it and little needs to be fixed.
Buck-passing is common when it comes to the failings of the criminal justice system, by which I mean the failure to deliver a system in which the public have confidence that those who are guilty will be caught, convicted and dealt with appropriately, and those who are innocent will go free. The police often blame the Crown Prosecution Service and the courts; the courts often blame the police and the CPS; and the CPS often feels like the meat in the sandwich between the two.
Throughout the criminal justice system, there is an unwillingness to recognise that there are flaws in each part of the system that have to be dealt with proportionately and appropriately. The Government are not claiming that everything that is wrong in the criminal justice system lies within the courts, but that, as part of the overall reform of the system, appropriate adjustments need to be made to the way in which the courts operate.
There is a problem with the line that the right hon. Gentleman is taking. Nobody suggests that the entire criminal justice system is perfect; plenty of it could do with reform. However, if parts A, B and C need reform, the answer is to amend them, not to reform parts G, H and J. Yet the Government are lumping together in the jury system all their prejudices and anxieties about the failure to produce enough convictions when there may be other matters that require consideration.
I am tempted to say, "I rest my case." The hon. and learned Gentleman has made precisely the sort of intervention about which I complain. People in all branches of the criminal justice system say, "It's not my bit that causes the problem." However, there are problems in all parts of the system. Police performance is not as good as it should be; the CPS does not always get it right; and parts of our court procedure are wrong. We need to tackle each part of the system. It is too easy for the police to say that the CPS and the courts are the problem, and that they are let down by them. We have all had that conversation with some part of the police service. It is also not right to claim that the courts are fine and that everything goes wrong in the process that leads up to court proceedings.
Does my right hon. Friend accept that those of us who are uneasy about the changes are motivated not by any worry about lawyers' views but by something more fundamental? If one changes in law a right that has existed for a long time for men and women in this country, one has to be certain that the change is not only justifiable but needed, and that it cannot be achieved in any other way. If I am worried about the amendments, I emphasise that it is precisely for those reasons.
I accept that hon. Members might be worried about the changes for those reasons. However, in the past, I have had some opportunity to examine the criminal justice system and I am sufficiently convinced that there are enough problems, especially intimidation of juries, to warrant changes in the limited cases that will, I hope, result from the Bill. Every hon. Member must make that judgment.
The right hon. Gentleman enjoys considerable respect in the House. Will he be specific about his criticisms relating to the three matters that are under discussion—lengthy trials, defendants' rights to opt for jury trial and jury tampering?
I did not intend to speak about those three points at great length. Intimidating juries and jury nobbling or tampering causes me the greatest anxiety because of the impact on the public's confidence in the criminal justice system in communities where those who are involved in organised crime believe that they are invulnerable to the law and where that belief is shared by others who live there. We all know that such communities exist. My right hon. Friend the Home Secretary has set out concerns about jurors in complex fraud cases, and the case, which seems to me arguable, for allowing individuals to choose mode of trial. My greatest personal concern is the danger of intimidation.
I ask, in the friendliest possible way, what my right hon. Friend would say if we were the Opposition and a Conservative Government were making such proposals. I listened carefully to Opposition speeches, and I fear that a future Conservative Government, however distant that prospect may be, could build on these proposals, and that we, as the Opposition, would be all the more determined to oppose them. That is an irony of the proposals.
I am pleased that my hon. Friend is a fellow member of the Select Committee on Home Affairs, partly because we share an interest in strengthening the House's ability to scrutinise legislation properly on the basis of the facts rather than having everything automatically polarised on party political lines. He may be right that some of us would in the past have reacted to the proposals purely on an oppositionalist, party political basis. I believe, however, that we should consider these matters on the strength of the arguments, and that the case should not be taken forward on the basis of the slippery slope argument, or of the argument that the other party might do something different. I shall take one more intervention, then I must finish; other hon. Members wish to speak.
Despite the hon. Gentleman's contention, such statistics are obviously not collected by the Home Office. However, I was convinced of the extent of problems in specific areas of the country involving jury nobbling and—a separate issue—tampering with witnesses.
My right hon. Friend has rightly identified this as a crucial area, and one that is important to him. Surely, however, the system cannot be brought into disrepute because of a problem of intimidation. The problem that needs to be tackled is the intimidation. The system, which is so good, is threatened by that. Surely he must see that he is putting the cart before the horse, and that we should tackle the underlying cause of the problem. The threat to a jury cannot be accepted, and we have to deal with that.
I agree that every effort must be made to protect a jury from intimidation, but my hon. Friend puts forward another example of the argument that says, "If only we did something else, we would not have to tackle this problem." I believe that changes are needed throughout the criminal justice system. Now, having taken more interventions than I ever did when I was a Minister, I shall sit down.
This is a really important debate, and we are not going to have enough time for it today, so I shall try to describe briefly why the Liberal Democrats seek to uphold what the House of Lords did in relation to clauses 41, 42, 43 and 45, albeit for different reasons, but while following the same basic principle. I want to reinforce a point that has been raised on both sides of the House, including by Mrs. Dunwoody. I would say to Mr. Denham that we are talking about an element of the criminal justice system that commands great respect and has been seen to do a very good job for 800 years. We are talking about a mini-democracy, a mini-Parliament. The fact that the public come into the criminal justice system as lay magistrates and jurors from all walks of life means that their decisions about guilt and innocence are taken far more representatively than they would ever be by a single judge. That is the fundamental principle.
As Mr. Robinson intimated, a second principle is that, while we should of course look at the criminal justice process and at whether the courts do their job properly, there is no significant evidence that the element of the system that fails most—or even comes close to doing so—is trial by jury. In fact, the parts of the system involving catching and deterring criminals, bringing them to court and ensuring that the trial starts all have flaws, as does the prison system, which does not rehabilitate properly. The part that stands up to the greatest test in terms of its success is the jury trial system. There is no suggestion that lots of guilty people are always getting off—that is not a criticism that is being made. There is also no suggestion in any part of the country that women, men, old people, young people, black people, Asian people or white people think that the system does not work for them; they all have confidence in it, more than in any other part of the criminal justice system. That is the strongest reason for not changing it unless there is overwhelming evidence to suggest that, for a particular reason, we should do so.
Having made the general proposition, I appreciate that there are four different proposals before us that we have to consider separately. First, should we allow people the right to choose to do without juries? Secondly, should we do away with juries in long and complex fraud cases? Thirdly, should a person be deprived of the right to a jury trial halfway through a case in which there has been jury tampering, or, fourthly, in a prospective case, where there is a prospect of jury tampering? I am not naive about the fact that there are different cases, and we must examine each of them on its merits.
We know, do we not—the hon. Gentleman might agree—the statistic that upwards of 90 per cent. of all recorded crime is never prosecuted in any court of law? If he is looking for a solution to the problems of crime and criminality, that is the first aspect to which we need to address our attention.
I agree absolutely. Most cases that go to the magistrates court result in a guilty plea, and a conviction is therefore secured.
May I deal with a second set of paradoxes about the Government's position that I find confusing? I do not blame the Home Secretary for the first of them. In the first term of the Labour Government, there were proposals, as he has referred to them, to restrict people's right to choose jury trial. They were put forward twice and defeated twice. Now we are being presented with the tempting proposition that we should allow people to choose to do away with jury trial. Although that is superficially appealing, may I put one argument as to why it would be a dangerous road to go down?
The argument was most effectively put by Vera Baird—I pay tribute to her—when she said, "Take a white defendant on a racial attack charge. Would he not find it a better prospect to appear before a white judge than a mixed jury? Take a male defendant on a sexual assault charge. Would he not perhaps choose to appear before a male judge rather than a mixed male and female jury?" Juries do not have reputations—they cannot, by definition—but judges do. If we go down this road, the choice of whether to elect for a judge will often be made by someone saying, "I'm going for the judge because they are thought to be soft and lenient." Those things cannot be predicted in a jury. Juries are much more uncertain. They do not have a reputation, and they have none of the disadvantages of a single judge who comes to every case with a reputation.
The hon. Gentleman has given examples of individuals who might wish to be tried before a judge rather than by a jury, but classes of case are also relevant here. For example, one can imagine that when railway crashes are dealt with under health and safety legislation, the defendants—directors of a large company—might prefer to be tried by a judge alone, not by a jury. Is that in the public interest?
That is one of the strongest arguments against giving serious fraud cases to the judge alone. It would look much more often as though the white-collar defendant was getting the white-collar judge—the single judge—whereas the blue-collar defendant, who represents the much more common non-fraud case defendant, would get the jury. These are really important matters.
I get confused about another thing. In the Bill, the Home Secretary is saying, "Trust the judges," but I have heard him say—or I and a lot of other people think that we have heard him say in other cases—that we should not give such great trust to judges. If there is a choice, although I trust them both, I believe that juries receive more trust from the public than judges do. Juries are not paid by the state. Even though they are independent, they are not seen to be part of the establishment. They are real people doing a voluntary service as part of their civic duty, and they do it very honourably.
Furthermore, the Government appear to be a bit confused because later in the Bill, in relation to previous bad character, they say, "Trust the jury. Put the evidence before them, and they can decide." We say in this context, "Put the evidence before the jury—they are well equipped to decide." I also wonder whether we are considering these proposals because juries are more unpredictable than judges and more out of the Government's control.
The hon. Gentleman is moving on to pastures new, but is he seriously suggesting that any Government, not just this Government, or any Executive, not just this Cabinet, control judges and their decision making in court?
Of course not, which is why I have never taken the view that the Home Secretary appears sometimes to have taken, which is that the judges should not be allowed to get on with their job and be properly independent. I have always taken the view that they should be allowed to do that. The great thing about juries is that they are far less predictable and manageable because they are far more independent. They are 12 people who have come together to form a collective view. That is bound to be more persuasive than any other method of deciding right and wrong, and guilt and innocence.
Would it be fair to add to that list of advantages of the jury system the incorruptibility of the system? Talk of nobbling, threatening or corrupting juries reveals one of the strengths of the system, not a weakness in it. It is almost impossible to subvert a jury of 12: in a lifetime of crime, I have never known it to happen. The placing of one judge in the firing line, who could be either bribed or nobbled, is surely much greater cause for concern.
I agree—although I suspect that the hon. and learned Gentleman meant "in a lifetime of dealing with crime".
If something works, we should not try to replace it unless there is an overwhelming argument for doing so. Secondly, the public are involved to an extent that we reduce at our peril. Thirdly, a jury contains people who do not arrive with a reputation and can therefore be entirely impartial. Fourthly, the jury system requires cases to be outlined in language that the public understand. There is no elite performance by lawyers for lawyers; this is publicly accessible justice, and we really ought to defend it.
May I respectfully add to the hon. Gentleman's list the fact that it is always preferable to have 12 judges of fact, rather than one?
That must be true, and any dogged and obstreperous individual can be dealt with now that majority verdicts are permitted, and frequently used.
In the other place, my noble Friend Lord Dholakia pointed out that minority communities in particular—black and Asian communities—have great confidence in the jury system. They believe, as all the research and other evidence shows, that they will be given a much fairer trial by a mixed-race jury than by a single, normally white, judge. The Commission for Racial Equality has advanced strong arguments in favour of the jury system, on the grounds that it is race-proof and much more equitable.
Many others argued points of principle in the House of Lords. Probably the strongest speech was made by a Government supporter, although she did not support the Government in this instance. On
Let me deal with the four propositions in turn. The first I have already dealt with: although, superficially, the amendment constitutes an appeal for people to be allowed the right to opt out of jury trial, it is likely to give the impression of creating a two-tier system, and a system in which people tend to use their own judge. A case in which a terrible sex offender, for instance, ought to be tried by his or her—normally his—peers might turn out to be the case that cannot be considered by a jury.
Secondly, there is the issue of serious fraud cases and very lengthy cases. I accept that the Home Secretary has made a concession in limiting his proposals to fraud cases, but my colleagues and I have not remained static. We have suggested an arrangement that would allow juries to be representative, but to be selected in a way that would make it practical to ensure that their members could remain on duty for a year, or for nine or six months. The Government rejected our suggestion.
Our view is simple. We do not think there should be a two-tier justice system, in which what happens depends on the nature of the charge and the offence being considered by the court. The fact that a case is long and complex in terms of paperwork need not mean that the issue is difficult for a jury to deal with. As Mr. Grieve reminded us, all the evidence suggests that there are much higher conviction rates in such cases than in the other cases with which courts must deal.
Finally, there is the question of jury tampering. I understand the arguments, and the most appealing are those in favour of a system allowing the courts, if necessary, to take steps to deal with such tampering. Mr. Marshall-Andrews said that we must not allow that part of the system to be put at risk. The hon. Member for Coventry, North-West referred to all the other measures that must be taken to show that we will not allow people to interfere with the criminal justice system, and that those who do so will experience the most extreme punishment.
My colleagues and I prefer to take the road embarked on by the hon. Member for Beaconsfield and his hon. Friends. We are willing to work with the Government to ensure that we do not have half a trial with a jury and half a trial without, as that is a ludicrous proposition. We are also, in serious cases of jury tampering, in which the defendant could not have a fair trial in any circumstances, willing to look at alternatives, but only if there is a high threshold. However, we are not considering that this afternoon. If we have time in the following days and weeks, we may reach an agreement. We are willing in the next 48 hours to work to come to an agreement, but we are not willing to compromise on the principle, against a guillotine and a deadline in the House that are not of our making.
I agree with much of what the hon. Gentleman has said, but on jury tampering, if there is a retrial or further trial after the discharge of the jury, does he agree that the second judge—a judge of fact in a judge-only trial—must be different from the judge in the first trial, because otherwise there is a danger that the judge in the second trial will have heard evidence not adduced in that trial.
In a matter of hours, the President of the United States will make a state visit to this country. The constitutional settlement of the United States of America includes many good things. In the Declaration of Independence, one of the objections to the King concerned the fact that he was
"depriving us in many cases, of the benefits of Trial by Jury".
That concern resulted in the right to trial by jury being protected in article III.2 of the United States constitution. I am not aware of any circumstances in any of the jurisdictions in the United States in which defendants in serious cases can be denied the opportunity to trial by jury—[Interruption.] The Home Secretary has rightly mentioned Guantanamo Bay, and he knows that Members on both sides of the House believe strongly that it is a no-go area, which is entirely unacceptable. There is also the issue of military tribunals, but on the US mainland, the jurisdictions have upheld the right to jury trial.
The right to jury trial is precious, and it works well. Parliament will not give up without a fight the right for it to be used as the usual and regular course of action for most defendants. If we have to fight the Government, we will.
Many speeches have been made during the passage of the Bill about the importance of jury trial as a principle. My right hon. Friend the Home Secretary has always said that he values jury trial in principle. It is hugely important in a democracy that the fresh air of public scrutiny is applied to decisions about the guilt or innocence of our fellow citizens.
My concern is primarily about clause 41, which may result in the end of jury trial as we know it. If my right hon. Friend does value that precious right, as he says, will he think further about that provision, which may undermine it? It could also be undermined by people who do not value it as he does or by sheer force of circumstance if clause 41 is brought into force. The new right for the defendant to opt for trial either by jury or by judge will inevitably be abused. For instance, in the north-east, it is well known that some judges are liberal and soft and that others are harsh. I have said so many times before, but if anybody asked me whether I would be tried by judge alone, I would say, "Which judge?" There will be forum shopping by defendants of the worst imaginable kind. Local witnesses waiting to go to court to give evidence will know that a defendant has opted at the last minute for judge X because he is soft, or has opted for a jury trial because judge Y, who is on the list of judges, is hard. That will rightly scandalise the public, victims and witnesses.
The Bill includes a provision specifying that there must be early exercise of the option, but it is unenforceable. Common sense dictates that if someone says that they want a jury trial, but the case comes to court and he decides that he is fine without a jury trial, nobody is going to compel him to go through the lengthier, more complicated and expensive process of empanelling a jury just because he asked for that at an earlier stage.
I am very sympathetic to my hon. and learned Friend. I understand from the previous contribution that she rightly made in the House, how strongly she feels. However, is it her proposition now that that is not possible when people are faced with a magistrates court or being able to opt for jury trial—that at that point that option is fixed and is the one that prevails, whether they want to go back to a magistrates court or not?
It is very difficult to envisage a situation such as the one that I set out. The defendant may say, "All right, six months ago, I thought I needed a jury to try my case. I now realise that the judges here are all absolutely fine and fair and I do not need to put you through the extra expense, the extra complexity and a lengthier trial, so I do not want a jury trial." Is it seriously suggested that the judge should force him against his will to have a jury trial, when it will take a good deal longer and cost a good deal more? Of course not. The judge will say, "All right, if no one wants a jury trial here, no one need have one here."
In practice, therefore, the right will be capable of being exercised at the end. Of course, if it is going to be exercised that way at the end, it is going to be exercised the other way at the end, if it is wanted, as well. There will be no possibility of excluding forum shopping. It is an appalling prospect and will bring the criminal justice system into disrepute. The jury system will be a tool to be used by clever criminals. Very soon, not only the Home Secretary but I and many others will say, "This has to stop. The system cannot be abused like that."
What will happen then? Will we go back to everyone having a compulsory jury trial? Of course not. By then, it will be clear that trial by judge alone can be quicker, slicker, more efficient and cheaper, so why wipe out the right to trial by judge alone? What will happen is that the right to decide whether a trial is by judge alone or by jury will be moved to the judge, and that will be a nail in the coffin of the right to jury trial. It will be at the judge's discretion.
Of course, the point I have just made—that non-jury trial is bound to be cheaper, quicker and more efficient than jury trial— will in itself be a nail in the coffin of jury trial. A robbery trial in court one at the Old Bailey will be carried out in two weeks by a judge, whereas, a robbery trial involving a very similar case in court two at the Old Bailey will be carried out over six weeks by a jury. Perhaps the man who had the two-week jury trial will be acquitted. The argument will be obvious. Why on earth should we allow defendants to have six weeks' worth of legal aid for these dreadful lawyers when they could perfectly fairly be tried in two weeks by a judge? Again, that argument will start to militate against jury trial.
May I reinforce the hon. and learned Lady's point about judicial pressure in due course to encourage judge-alone criminal trials? In the civil field in which I work, defamation, there is still a right to jury trial, but the judge is given discretion to take it out of the hands of the jury and to try it himself, if he thinks—the wording almost reflects the wording in the Bill—that the case is going to be very complicated or take too long. However, increasingly, judges will begin proceedings by saying, "Do you not think that it would be better for all concerned if we just dispensed with the jury?" That is before we have even got into deciding whether it will be a complicated trial. The pressure will be on the parties to the trial to accede to the judicial request, because the judge will be under pressure from the management—that is to say, the Lord Chancellor's Department—to keep the through-put of trials going at a speedy rate. The Treasury pressure on the judge will be to keep the process going as quickly as possible. That is why the hon. and learned Lady is right to highlight that point.
I am grateful for that intervention. If somebody is acquitted in a couple of weeks, instead of being convicted after spending six weeks in front of a jury, people will start to say, "What's good enough for defendant X—being tried and acquitted by a judge—must be good enough for defendant Y. Why should we allow them that option?" As has just been said, judges are under pressure in terms of turnover and disposal rates. They are almost certain to think that they can try cases just as well as a jury, so why should they not exercise their right to decide that they will do so?
And what about the little cases—those that are just a few pounds' worth—that find their way to the Crown court, in which the defendant wants to opt for trial by jury? They will—[Interruption.] Does my right hon. Friend the Home Secretary want to intervene, or just get in the way? [Interruption.] He is muttering into his beard—he does so, I am sure, with great charm—about district judges already trying without juries, but there is a principle in this country that serious cases go before juries. Although I am talking about the less serious cases that a judge will consider as not meriting jury trial, it is obvious that they constitute the bottom end of the serious stuff that the Crown court deals with. There will be pressure for smaller cases at the bottom end of the Crown court's tariff to be tried by judge alone, and for the option of trial by jury not to exist.
I foresee that, for those two reasons, we shall soon have the forum shopping and abuse that none of us wants, and the obvious cheapness, slickness and efficiency of trial by judge alone. The defendant's right to opt for trial by judge alone will go and will be passed into the hands of the judge, which will be the end of any kind of right to trial by jury. Here, I am expressing a very real fear. I do not intend that my comments should have a querulous sound; rather, they are expressing a serious concern. My right hon. Friend the Home Secretary says that he, too, is concerned about safeguarding the principle of jury trial, but if he wants to do so, he cannot allow it to become optional. Once it becomes optional, the reasons why the option is exercised will bring the principle into disrepute. That is the slippery slope on which we are starting today with clause 41.
It is fanciful for my hon. and learned Friend to suggest that if some accused can choose a judge-only trial, all of them will. So that we can see whose opinion is right, I should point out that Lord Justice Auld's report commented on the widespread use in other common-law jurisdictions of what he called the "jury waiver"—in other words, the giving up of the right to trial by jury. Is it not true that the jury trial is still strong in all those jurisdictions?
I do not seem to have made myself clear—at least to my hon. Friend. In no way did I say that if we give everybody the right to non-jury trial, all will opt for it. I said that the way in which that option is exercised will be subject to criticism, and people will say, "If they're going to exercise the right to jury trial in that way, we will take it away from them and let somebody sensible decide what mode of trial should follow." If my right hon. Friend the Home Secretary is concerned about jury trial, I ask him to consider that that process will inevitably follow from what happens today. I seriously invite him to consider that that is not what he wants. Please reconsider clause 41.
I have just two minutes, so I shall be extraordinarily brief. I want to begin by telling the Home Secretary something that is not palatable to many Members of this House: that we should listen with respect to what is being said in the other place about part 7. The plain truth is that we in this House will be having whipped votes on this issue, and that what we are hearing today is the Home Office's view. What we heard in the other place was a largely free and unconstrained debate, with views being expressed by people who have a great deal of knowledge on the subject—we should therefore listen with respect to what they say.
Like Vera Baird, I start from the presumption that jury trials are desirable: they have, as my hon. Friend Mr. Grieve said, very wide public acceptability, and they tend to give a more just result—partly because jurors are better judges of fact than are judges, many of whom have spent too long in the criminal courts hearing too many lies.
On clause 41, I absolutely agree with the hon. and learned Member for Redcar that we are creating a presumption against jury trials. That will be the thin end of the wedge, and ultimately they will be discontinued on that basis alone. As Simon Hughes said, many individuals will try to get a judge-only trial because they think that it suits them. Moreover, certain classes of trial will come before judges only, and that will displease the public at large.
As regards long and complex trials—this relates to clause 42—the single issue is normally one of dishonesty—