Fraud (Trials without a Jury) Bill

Part of Orders of the Day – in the House of Commons at 3:25 pm on 29 November 2006.

Alert me about debates like this

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham 3:25, 29 November 2006

I would give that proposal serious consideration, but in the end, my answer would be no. I am in favour of jury trials, and I shall come to my reasons for that later. I begin by defining the questions that I shall ask of myself and the House. My first question is whether there is anything inherent in jury trials that makes that form of trial inappropriate for complex and lengthy fraud cases. I wish to find out both whether such cases cannot be tried by a jury, and whether juries cannot try such cases. My second question is quite different: are there arguments of principle that should cause us to say that jury trial should be retained? If the answer to that is yes, I shall ask a third question: are there any practical arguments that reinforce the view that jury trials should be retained? Those are the three questions that I wish to put before the House.

First, I wish to consider whether or not a jury is capable of properly trying a complicated fraud case or, to put it differently, whether a complicated and lengthy fraud case should not be put before a jury. I have some personal experience of the matter, although not as much as Mr. Marshall-Andrews. He is modest about his achievements, but there are few barristers with his experience in this field—I certainly do not presume to claim for one moment that I have such experience. His views are the fruit of years of trial practice, and they deserve serious attention. I have less experience but, in the past few years, I have taken part in two long fraud cases, both of which lasted more than 40 days, so I am familiar with the matter. In the other place, there are many Members who have much greater experience than me, and the majority of criminal practitioners, both solicitors and barristers, share my conclusions.

Is there anything about fraud trials which means that they are not a proper subject for jury trial? The Bill asks us to consider the proposition that fraud cases are too burdensome for juries, because they are too complicated and sometimes long, so jury trials are inappropriate. The Solicitor-General shifted his ground on some issues, but he told us that he does not seek to assert that fraud trials are too complicated for juries, because they cannot manage the evidence. I share that view. Having dealt with fraud cases, I have come to the positive conclusion that juries understand full well the nature of the evidence. As my hon. Friend Mr. Grieve pointed out, in the Jubilee line case, members of the jury went out of their way in interviews to stress the fact that they were fully conversant with the evidence, notwithstanding the fact that many months had elapsed since the evidence was given.

We can therefore start from the robust assumption that juries are perfectly capable of understanding complicated evidence. That is jolly lucky, because many other trials involve complicated evidence. Trying to understand DNA evidence is not easy. Understanding lengthy phone schedules is not easy, and neither is understanding ballistics. Studying some blood samples is not easy, yet those are things that, time and again, juries are called on to resolve. I therefore have no time for the argument that such things are too difficult for jurors. As for the length of trial, it is perfectly true that it can be a problem, but I remind the House that jurors can be excused if they can provide a good reason. In the Jubilee line trial, the jurors were ready to sign up for a six to 12-month stint. I do not accept that it is impossible to empanel a jury, or that it is too burdensome to do so.

Questions of complexity and length are not confined to fraud cases—an issue to which I shall return. Time and again, they arise in serious crime. Terrorism and conspiracy are a case in point, as are multi-handed murders, to which the hon. and learned Member for Medway referred, and affrays. Such trials can go on for months and months. Once we accept the proposition that an excessively long trial cannot be heard by a jury, we assert a principle that will destroy our civil rights.

Secondly, are there issues of principles that should lead us to conclude that jury trials should be retained? I am in no doubt about the matter, as I am wholly persuaded that major issues of principle are at stake. I am quite certain that public respect for law is based on the belief that at the end of the day serious trials are resolved by juries. If our liberties are taken away, we do not want them to be taken away by a single man or woman sitting alone. For many people, there is a huge gap between the defendant and the judge, who often appears to be part of the establishment or an instrument of the state who does not sympathise with ordinary people's lives. If we allow judge-only trial, a gap will open up between the citizen and the judiciary, and between the citizen and the state.

A further unusual consideration is the perverse verdict. There are cases in which the guilt of the defendant is established beyond doubt by the overwhelming weight of evidence, yet the jury chooses to acquit. It can exercise that important safeguard for various reasons. For example, it may consider that the state is acting oppressively, as in the Ponting case. It may consider that a conviction would be wholly unfair, as in cases of mercy killing. It may consider that a trial and its consequences are disproportionate—I draw attention to road traffic legislation, and the fact that death by careless driving attracts a maximum penalty of five years. The possibility of a jury making what is technically known as a perverse verdict and refusing to convict in such cases is an important safeguard that defends the liberties of all. Arguments of principle are therefore in play.

We should consider pragmatic arguments, too. The hon. and learned Member for Medway asked some important questions that were not resolved by the Solicitor-General. The points that he made about public interest immunity were quite correct, and there is no sensible answer to his anxieties. If he will forgive me, I will develop his argument. At the moment, in a trial by judge and jury, the judge judges the law and the jury judges the facts. In long cases, when points of admissibility arise, submissions are made to the trial judge on previous convictions, hearsay evidence, alleged confessions and so on. The judges makes a ruling on the admissibility of those issues. If he decides in favour of the defendant, the jury will never know of the previous convictions, the alleged confessions or the hearsay evidence. Once a judge sits alone, he is called on first to make that ruling. If it is adverse for the defendant, the information is taken into account. If he makes a ruling, which he may be driven to, favourable to the defendant, he still knows the previous convictions. He still knows the hearsay evidence. He still knows the alleged admissions. The trial judge will say, of course, "It will be put out of my mind", but how reassuring is that in any real sense to a defendant facing a serious charge?

I know full well that that situation arises in tribunals. My hon. Friend Mr. Malins sits as a deputy district judge and he has to come to exactly such a decision. He will forgive me if I say that the cases in which he presides do not attract very long prison sentences. It is a problem, it has always been a problem, but it is mitigated partly because the sentences are not so long, with a right of appeal to the Crown court, and partly because in many cases there is more than one judge sitting on the tribunal—for example, lay justices. It is an inherent problem. Whether or not it infringes the European convention, now incorporated into domestic law, is a matter for another discussion, but it goes to the quality of the justice that will be administered.

I shall make one final point and then my conclusion. Case management powers were again touched upon by the hon. and learned Member for Medway and referred to by his hon. Friend—if that is not an inappropriate word in the circumstances—the hon. Member for Wirral, West. There has been a huge change in recent years in the judicial powers of the court to regulate what can be done in trials. It is now much easier for the judge, especially when working in association with a co-operative prosecution, to ensure that indictments are not too long, that counts are carefully focused, and that the evidence is confined to that which is truly relevant. These considerations and the case management powers will help over time to deliver the objectives that many on the Government Benches seek to advance in support of the Bill.

To conclude, I feel very strongly about the Bill. I believe that it is part of a campaign by the Government systematically to undermine the protection which the law of England has afforded its citizens for hundreds of years. When they come forward and say that it is not part of an attack on jury trial, I recall the Criminal Justice (Mode of Trial Bill and the Criminal Justice (Mode of Trial) (No. 2) Bill, which we have had cause to consider. When I consider their protestations that they wish to rebalance the criminal law as between victim and defendant, I bear it in mind that many defendants are innocent people, or at least persons against whom there is not sufficient evidence. I call to mind the Criminal Justice Act 2003, many parts of which are a serious infringement of civil liberties.

I am extremely hostile to any attempt by the Government to diminish civil and legal rights, so I am against the Bill in principle. It is not necessary, for the reasons advanced by my hon. and learned Friend the Member for Medway. Juries are perfectly capable of dealing with both complexity and length. There are issues of principle here engaged. There are arguments of pragmatism here engaged. Collectively the House should give a resounding no to the Bill. If it is forced through, as I have no doubt it will be—on a three-line Whip—by people who have not attended the arguments on the matter, the other House must stand firm. If the Government want to use the Parliament Act to pass through an authoritarian and disgraceful measure, so be it. That will be in keeping with this Government.