'In section 43 of the Criminal Justice Act 2003 (c. 44), for subsection (5) substitute—

"(5) The condition is the complexity of the trial or the length of the trial (or both) would be likely to make the trial so burdensome to the members of a jury hearing the trial that the interests of justice required that the trial should be conducted without a jury.".'.— [Simon Hughes.]

Brought up, and read the First time.

I beg to move, That the Clause be read a Second time.

With this it will be convenient to discuss new Clause 5— Conditions to be satisfied (No. 2)—

'In section 43 of the Criminal Justice Act 2003 (c. 44), for subsection (5) substitute—

"(5) The condition is that by reason of the complexity or length of the trial, or both, and their likely impact on the safety of the verdict, the interests of justice require that serious consideration should be given to the question of whether the trial should be conducted without a jury.".'.

As you indicated, Mr. Deputy Speaker, I will also speak to new Clause 5, which, with your agreement, I shall seek leave to put to a vote at the end of the debate, rather than new clause 4.

The new clauses would amend the Criminal Justice Act 2003, which was the last substantive piece of legislation that this House passed in relation to the issues under discussion. In the principal legislation, the House debated whether there might be exceptions to the rule that serious criminal cases should have a jury trial. Parliament agreed—this has been enacted—that in certain cases that can now happen. The most obvious case that has been agreed is where there has been tampering with the jury. There is a procedure that allows an application for a non-jury trial in that exceptional circumstance. It was acknowledged that that should be allowed.

There was another Government proposition—which had been raised and debated before—that there should be a trial without a jury in serious fraud cases. As Members will recall, that was extremely controversial. Because it was controversial and was raised at the end of the parliamentary Session, it put at risk the Government's ability to secure the agreement of both Houses of Parliament to that Criminal Justice Bill. The outcome of the ensuing negotiations between the then Home Secretary, Mr. Blunkett, and Baroness Scotland and Opposition spokespeople in both Houses was that that part of the Bill would be implemented only if an affirmative order were subsequently passed by both Houses. Effectively, it was put on hold except in cases when Parliament agrees to its implementation. Since then, the Government have sought on one occasion to implement it by using that process. They managed to get the order passed in this House, but it was made clear to them that it was unlikely that the order would be passed in the House of Lords, so they did not proceed down that route. The Bill provides a mechanism for returning to that issue, but by way of a new and substantive piece of primary legislation.

One of the elements of that Criminal Justice Act 2003 regime—were it implemented—was to impose necessary preconditions before a trial without a jury could take place in serious fraud cases. Section 43(5) of that Act states:

"The condition is that the complexity of the trial or the length of the trial (or both) is likely to make the trial so burdensome to the members of a jury hearing the trial that the interests of justice require that serious consideration should be given to the question of whether the trial should be conducted without a jury."

The key passage is from "so burdensome" onward. New clause 4, which was tabled by my hon. Friend Mr. Heath and I on behalf of the Liberal Democrats, and new clause 5, tabled on a cross-party basis by Conservatives and Liberal Democrats, are two changes that would toughen up those conditions.

As the Solicitor-General and the Minister well know, my party and I—and, as I understand it, the Conservative party—remain clearly of the view that we will not support the Bill. That is our clear and unchanged position, which we adopted in 1998 and maintained in 2003, 2005 and throughout 2006. We continue to defend jury trial in 2007, because it is the best form of trial for serious criminal cases.

I am very glad to hear that the hon. Gentleman will ask his right hon. and hon. Friends to vote in favour of his new clauses, but will he forgive my saying that I do hope that those of them who represent Scottish constituencies will not be voting, because the Bill refers and relates exclusively to England, Wales and Northern Ireland?

The right hon. and learned Gentleman is perfectly entitled to ask that, but he is being slightly mischievous. Let me deal with his point briefly. My right hon. and hon. Friends from Scotland who are here will indeed vote because, so far, the constitutional position is that all Members can vote on all legislation. Obviously, many matters have been devolved, and we supported that, but we still vote on legislation relevant to Scotland, Northern Ireland and Wales, Mr. Deputy Speaker, as you well know. A great deal of Northern Ireland legislation is considered in the House, and in fact much more Welsh than Scottish legislation is considered here.

We support the view that there ought to be further and better devolution to Scotland, Wales and Northern Ireland—and to England—and we want to persuade other parties in the House, particularly the Government, that we should have proper devolution. Under such a settlement, it might well be the case that the outcome that the right hon. and learned Gentleman encourages me to persuade my colleagues to bring about might happen. However, that will not happen today. All my colleagues from all three parts of Great Britain will vote, because they are as committed as I am to retaining jury trial for all serious cases in England. I should say in passing that people from Scotland and Wales often appear before the courts in England and Wales—more from Scotland, by definition—and they might well hold the same strong views in that regard. The Scots are wonderful people, but they are not less likely to be defendants before the courts in England and Wales. I will stop there, before I get into trouble.

I hear what the hon. Gentleman says about the way that his colleagues from England, Wales and Scotland intend to vote. However, given that this measure touches on the constitutional position and the liberties of English men and women, does he not feel that it would be a somewhat unhappy outcome if it were carried on the back of votes from Scottish Members?

Order. I sensed that the hon. Gentleman was about to conclude his remarks on this point. I do not think that we want a debate on devolution and its side effects. Perhaps we could deal with the new Clause before the House.

I am very happy to have that debate on appropriate occasions, Mr. Deputy Speaker, and there will doubtless be many. The important point is that although this measure relates to courts in England and Wales, people from all over the world—not just all over the UK—appear before those courts, and we want jury trial for those who appear before them on serious charges, including serious fraud charges. So our position is absolutely clear. This is about the safeguards that we put in place and what conditions will be satisfied if, against our will and our votes in both Houses, such a proposal were to pass through Parliament.

New Clause 4 would insert the following alternative wording:

"The condition is the complexity of the trial or the length of the trial (or both) would be likely to make the trial so burdensome to the members of a jury hearing the trial that the interests of justice required that the trial should be conducted without a jury."

The current law says that

"serious consideration should be given to the question of whether the trial should be conducted without a jury".

We say that the test needs to be firmer than that, and as new clause 4 states, the law should state that the

"interests of justice required that the trial should be conducted without a jury."

The burden of making the case must fall on the Government. They are seeking to persuade us that there will be circumstances in which the interests of justice require that a trial be conducted without a jury, but so far we have not heard a strong argument from them in that regard.

If I may, Mr. Deputy Speaker, I will reserve until we move on to the next group of amendments, because it will be more appropriate then, discussion of the strong evidence that makes it clear that all that we know about jurors serving on serious fraud trials supports the argument that they do understand the complexities of such cases and want to continue to do that job. There is no evidence to suggest that jurors find such trials a problem. If that is indeed so—if there is not an interests of justice case that one can argue from the point of view of the juror—only one of two counter-arguments can be advanced.

The Minister and the Solicitor-General have advanced one of them in previous debates, but they have not advanced the second, which I will explain in due course. The first argument, to repeat phrases used by the Solicitor-General and others, is that the full culpability of the case—in other words, the full range of the offence—would be better available to the courts in trials without a jury. The Solicitor-General will make his own speech in his own way, but the argument throughout the debate has been that one flaw of the present system is that one has to cut down a case, as it were, to put it to the jury, because it would otherwise become too long and complex—in other words, too risky in terms of the jury's comprehension. As a result, not all the defendants who might be charged in a given case are charged, or not all the charges that might be put on the indictment are put.

Interestingly, the only jury who have recently spoken on this issue did not say that the prosecution had confused them, although they did point out that the defence was sometimes not as clear as it might have been. Our view is that, in the interests of justice, we should always make sure that everybody who should be charged is charged, but the interests of justice are not necessarily served by having 24 or 48 counts on an indictment if six will do. The House will be aware that because the maximum sentence for one count is the same as for another, similar count, a court's ability to punish someone with imprisonment—actual and immediate, or suspended—or a fine, for example, is not changed simply by the addition of counts. Of course, if there were 10 counts, for example, a judge could say that they must be served consecutively, but 12 or 24 counts are not needed to achieve the justice that a smaller number of counts can achieve.

May I reinforce the point that the hon. Gentleman is making? If one puts 21 counts on the indictment, one then has to adduce evidence as to those 21 counts. That is likely to be extremely confusing for a jury, who will face an inordinate and quite unnecessary amount of evidence.

That is absolutely right, and the principle applies to the whole tribunal and courts system. The other day, a constituent came to me to discuss a parent's allegation of discrimination in a school against their child. In the end, the case brought was based on a specimen count—that on a particular day, the child was treated in a particular way. Bluntly, if the case were won on that basis, the same argument could apply in respect of the preceding and subsequent days and months, because the same treatment occurred then. So it is absolutely in the interests of justice that we do not have extra and unnecessary counts.

Of course, if there are different types of offences, one puts them on the charge sheet and into the indictment. Or if there was a pattern of behaviour five years ago, then a break, and another pattern a year ago, that might be reflected in the charges. However, the criminal justice system has never sought to put everything before a jury. Indeed, many cases would be much slower and more confusing and the chances of successful conviction would be smaller. If someone is convicted, they have the opportunity to ask for other offences to be taken into consideration so that they are not left on the file.

I have listened with great interest to what the hon. Gentleman has said, and his speech could—with some reservations—have been made just as easily by the Solicitor-General. That is one of the reasons why I wish to ask him this question. I will not support his new Clause, although it is not so bad that I will support the Government, because if he takes the view—as I do—that in serious cases with serious implications it is never in the interests of justice in our adversarial system for them to be tried without a jury, how can it be right to table a new clause that by implication, as he has been arguing, suggests that on occasion it can be in the interests of justice for such cases to be heard without a jury?

1 pm

Let me make it clear that we do not believe that the move from jury trial to non-jury trial is in the interests of justice. All we have sought to do is to improve the Bill for fear that we will lose the battle on it. We are fighting on two fronts. We will vote against Third Reading and we will seek to defeat the Bill in the House of Lords, which I suspect we will do because the combined numbers of my party, the Conservative party, Labour peers who oppose the Bill and Cross Benchers will, happily, be enough to do so. The Government will then have the option of revisiting the issue. However, if the Government eventually win the day—in theory, by using the Parliament Acts—we seek to protect people from the excesses of injustice that we see in the Bill. We have a principled position and a fall-back, compromise position—

An unprincipled position.

Well, shall we say that it is a less principled position? I would understand it if Mr. Marshall-Andrews does not agree with our less principled and more compromised position.

My hon. Friend knows that I agree with him on this issue, but is not there another important distinction to be made in the context of this new Clause? By introducing the phrase "in the interests of justice", we move away from the position that the Solicitor-General approached in Committee—without quite reaching it, although he came perilously close—of saying that one of his prime objectives was conviction, not justice. If it comes to a choice between the interests of justice and of conviction, I know where my sympathies lie and, I suspect, those of Mr. Marshall-Andrews.

I hope that my hon. Friend has drawn the hon. and learned Member for Medway back towards us with that Intervention. It was a serious concern to my hon. Friend and me in Committee that the Solicitor-General, whom we like and respect, veered towards saying that his proposal would increase conviction rates. We could certainly quote phrases back at him. However, a conviction—a finding of guilt—does not necessarily mean a just result. There are still too many people unjustly convicted by our system.

I looked back through the annual reports of the Serious Fraud Office, which has existed since 1998 principally to deal with such cases, and one of the arguments that it has never used—I stand to be corrected—is that non-jury trials should be introduced because they would increase conviction rates. The SFO makes many arguments in its annual reports on how to improve the process, how more cases could be brought to court and how conviction rates could be improved, but they are not to do with the difference between jury trials and non-jury trials.

One instance in which the interests of justice might be better served by a non-jury trial than a jury trial might be if such publicity had been given to a case or the defendants—we have had some examples recently, although not in serious fraud cases. Before any charges have been laid, people have appeared in the press and on the radio and television as the likely defendants. One could argue that the interests of justice would dictate that the members of a jury would not be able to disregard what they had heard, read or seen to enable them to reach a correct judgment. My experience of the courts is that in every case where that is an issue—perhaps there has been widespread national or regional publicity—the judge has gone out of his or her way to make it clear that the members of the jury have to put what they have heard or read about the case out their minds. My understanding is that they appreciate the need to do that. So I dismiss the argument that non-jury trials are necessary in such cases.

May I suggest another class of case to which it might apply? It clearly exercised the mind of the coroner in the application to hear the inquest into the death of Princess Diana before a jury that the case was likely to include evidence from many people who, because they were foreign, would need interpreters. That might be difficult for a jury to handle.

Yes, that is a possible example. We need to be honest if we think that cases could fall into that category, and share what we think about them. I had not thought about that example, but it could be included. Indeed, serious fraud is one of the offences that often has international aspects, such as carousel fraud, and might therefore involve defendants who are non-British or do not have English as their first language.

New Clause 5 would insert a second, separate, protection into the Bill. It is subject to the same criticism as the right hon. and learned Gentleman made a moment ago in that it is not a substitute for a jury trial. However, it would add to the Bill a further test that serious consideration should be given to conducting the trial without a jury if the interests of justice require it

"by reason of the complexity or length of the trial, or both, and their likely impact on the safety of the verdict".

It is possible that a verdict might be thought to be less safe because of the mental or emotional state of the defendant or some of the witnesses or where the recollection was of events that happened a very long time ago. I am thinking of cases of which I or others have had experience.

Usually, the safety of the verdict consideration is adequately answered by the judge's regular admonition to the members of the jury that they cannot convict until they are sure beyond any reasonable doubt. That is a high barrier. It is a hurdle that the English legal system has insisted on so that people are not convicted if there is a serious or reasonable doubt. I do not claim that there are many such cases, but the burden should lie on the Solicitor-General or other Ministers to explain why cases need to be taken away from juries and given to individual judges in the interests of justice. The Solicitor-General gave one example to do with the fullness of the evil of the activity, and we may hear that again in a moment, but if he wants to add further examples, the burden of explaining his reasoning lies with him.

The essence of yesterday's debate on foreign policy and defence in respect of Iraq was about how we establish the rule of law and democracy in other countries, and about our obligation to those countries in which Britain has had an interest historically. There was no vote at the end to decide the law of the land. Although this debate does not have the same parliamentary magnitude, we believe that juries should continue to be used in as many cases that come before the higher courts as possible, for three fundamental reasons.

First, the system has worked very well historically. Secondly, it has the confidence of the public, as people trust lay magistrates and juries far more than they do professional lawyers and judges. Thirdly, there is no evidence that a two-tier justice system would not be regarded as one that did not give equal justice to everyone. Courts convict people and send them to prison, so they must be able to be relied on to reach the proper verdict for every defendant.

We spend many days in the House talking about victims and about how we can make sure that the guilty are convicted more securely and effectively, but we must also make sure that our system has the confidence of the public and is fair to defendants. Our new clauses are designed to improve the Bill, although I hope that it does not become law. If we have to have a Bill like this, it needs to be made tougher, and that is what these new clauses aim to do.

I rise to support what Simon Hughes has said, and to speak more specifically to new Clause 5. Like the hon. Gentleman, and like my hon. Friend Mr. Grieve on the Opposition front bench, I am very much against this Bill. On the other hand, it will be carried through this House, and possibly through the House of Lords, although that may be unlikely. Our business, therefore, is to try and improve the Bill, even though we do not want it to make progress. It is in that spirit that I shall make my remarks.

The Criminal Justice Act 2003 stipulates that the consideration that applies when determining whether a trial should be heard without a jury is whether its complexity and length would be burdensome to a jury, but the length and complexity of fraud cases are not peculiar to them. Cases involving terrorism and conspiracies, for example, or ones with many people accused of drugs offences, are also long and complex. We are setting a dangerous precedent if we accept that it is only length or complexity that justifies a non-jury trial, because that is to create an argument—irresistible in logic—that the same conditions should be applied to non-fraud cases.

I can foresee Ministers saying, "Parliament has decided that this is appropriate in fraud cases, so why should we not apply that precedent to other cases?" The Government have a track record of doing that, and they have tried many times to dilute the classes of case in respect of which a jury is required to be empanelled. I refuse to grant Ministers that precedent, because I object fundamentally to these proposals.

I propose, however, to adopt an approach that earlier I characterised rather kindly as the less principled one. Given that the Bill is going to progress through this House, surely we are obliged to try and improve it. Is it possible that there might be occasions when the interests of justice might require a non-jury trial? I find that difficult to contemplate, for the sort of reasons that Mr. Marshall-Andrews always advances so eloquently, but I do not exclude the possibility.

Certainly, I can contemplate a test that is much more satisfactory than the one proposed by the Solicitor-General. Two options are presented in the new clauses—the Liberal Democrat version in new clause 4, and the version in new clause 5 that is supported by hon. Members from both main Opposition parties.

The test that we propose would determine whether the interests of justice might require a non-jury trial. As I said, I can conceive of circumstances when that might be so. For example, I noted earlier—and the hon. Member for North Southwark and Bermondsey acknowledged my point—that the coroner in the Princess Diana inquest held that it was right to for that inquest not to have a jury. I am not in any sense questioning the merits of that decision, but I believe that she came to that conclusion because the fact that a lot of evidence would come from abroad, either through interpreters or in translation, could cause difficulties for a jury.

I can see that juries might find it difficult fully to handle evidence in deeply complicated cases that comes from abroad. To put it differently, it is possible that a defendant might apply for non-jury trial for those reasons, and I emphasise that I support a defendant's right to make such an application.

If defendants are allowed to apply for non-jury trial, they may decide to do so for reasons of cost. That means that another class of case will become increasingly common. With more defendants funding their own defence, they might well think that their trial would be abbreviated if no jury were involved—clearly an attractive proposition. Moreover, even when a defendant is not providing the funding, long trials can be enormously costly, and that would be another reason to opt for the possible brevity of a non-jury trial.

For those reasons, I do not want to exclude the possibility that there are a few classes of case in which a non-jury trial could be authorised, especially when the defendant make that application. However, I do not think that that should happen on grounds of complexity or length—simpliciter.

I do not want to be tiresome, as the right hon. and learned Gentleman is making a persuasive point about the need to mitigate a thoroughly bad Bill. He said that he does not want Ministers to say that Parliament's acceptance of the argument about length and complexity allows them to apply such conditions more widely, but how would mitigation help to prevent that? The Government have form in such matters, and will use any argument that comes to hand. Would not matters be made worse if they were able to say that the House of Commons had decided that jury trial might be abrogated for reasons of the interests of justice, and not just length and complexity?

No, I do not think so. The Government's proposals rest exclusively on a trial's length and complexity—difficulties that arise in many non-fraud cases. Making a concession on those grounds would be to drive a coach and horses though the principle that trials should be held before a jury. The problem that we are wrestling with is that the Bill will make progress: it will leave this House, and go before the House of Lords. Are we therefore in the business of trying to improve a bad Bill, or should we simply assert that it is bad and not try to improve it?

The choice is not an ideal one. The hon. and learned Member for Medway disagrees, but I have concluded that I am in the business of improving a bad Bill. However, I accept that it is perfectly respectable to argue that this is such a bad Bill that we should spit on it, throw it out and have no more to do with it. If we believe that, we might as well not debate the new clauses before us: we should just accept that the Bill is bad, go straight to Third Reading and find ourselves beaten in the vote at the end of that. That is not what I want to do.

I could go on at length, but I shall not do so. The condition in section 43(5) of the 2003 Act is a jolly bad one. We can improve it to make it slightly less objectionable, and I commend that approach to the House.

I am delighted to hear the comments of my right hon. and learned Friend Mr. Hogg. Like him, I face a dilemma. The Bill is a bad piece of legislation. I explained that on Second Reading and in Committee. On occasion I have made some attempts to see if there is any way forward to a compromise in respect of how the trial process takes place and whether it can be independent of the judge's decision. I have not been successful. In this Bill it is particularly difficult. Any attempt, for example, to argue that we should have a special jury has been ruled out of order because on Second Reading we decided to dispense with juries. There is an "all or nothing" quality about the Bill.

I agree with my right hon. and learned Friend that it is important, notwithstanding the distaste with which we view the legislation, to consider the situation if and when the Bill reaches the statute book and seek to mitigate as far as possible its worst effects. In Committee we discussed whether there should be an interests of justice test. Notwithstanding what I heard from Mr. Marshall-Andrews, I think that that takes the matter a little further in providing some guidance to the judiciary on how they should approach the matter—not just the question of burdensomeness or length, but also that of the interests of justice— widening the criteria a little and, I hope, as a result restricting a little more the circumstances in which the court would grant trial by judge alone. I accept that there are difficulties and for that reason I am supportive of new Clause 5. My name does not appear at the top of the list of promoters, although I rather thought that I drafted it. It may turn out that somebody else had the same idea.

I did.

My right hon. and learned Friend says that he drafted the new Clause, in which case I am rather perplexed because his name does not appear at the top of the list either.

I think the Liberal Democrats nicked it. [Laughter.]

All I can say is that when I went to the Table Office to table my Amendment I do not remember seeing any amendment in the name of the Liberal Democrats along the lines of new Clause 5. In a conciliatory spirit I shall return to the main issue, which is the contents of the new clause.

The key issue will turn on the likely impact of the safety of the verdict. That has a particular merit. To understand it, one must return to the Government's stated position. The Government have gone out of their way—they have no option but to—to insist that juries are capable of returning true verdicts. If they were to depart from that principle, they would announce their complete lack of confidence in the entirety of the jury trial system. Indeed, we know from the Wooler inquiry into the collapse of the Jubilee line case—one of the very few pieces of evidence that we have about how juries function—and from the supporting research documents that went with it, which I conveniently obtained the day before Second Reading, that in that trial, which meandered on for 18 months before it collapsed, the jury had a very good grasp of the issues in the case. There is every reason to suppose, when one considers the responses that the jury gave to those who investigated the matter, that had they had an opportunity of returning the verdict, no one could suggest from the evidence that the verdict would have been unsafe or unsatisfactory, because after 18 months they had preserved a complete grip on the issues that they were having to consider.

If we were to adopt new clause 5, it would have the merit that it would be rather difficult ever to have a trial without a jury, because it would have to be argued before a judge that there was something about the complexity or length of the trial which made it likely that the safety of the verdict might be impaired. In such circumstances no trial without a jury, on the existing evidence that we have, would ever take place. That is why I commend the new clause.

The hon. Gentleman makes a good point about one effect of new Clause 5. Does he agree that it has a further merit over and above new clause 4, which is that by removing any mention of the burdensomeness of the trial to the jury, it removes from the prosecution an incentive to increase the complexity in order to remove the trial from a jury?

I agree entirely with the hon. Gentleman that that is an important consideration.

We must be realistic about this. In our daily lives most of us have had the opportunity to meet people, not necessarily in a professional context, but neighbours or friends, who have served on juries. Some people find doing two weeks' jury service, which probably includes four or five days sitting and the rest of the time being sent home, to be burdensome. I would not wish to say that they were being lily-livered. It may well be that the impact on their own lives has been considerable. Equally, I have done long trials lasting many months when it seemed to me that the jurors were deriving considerable enjoyment from the work that they were being called on to do. Friendships are made. Indeed, in some cases marriages have followed. Many, particularly those who may be retired or are not in full employment, have found it an extremely fulfilling and important experience in their lives. That is a reason why we have jury trials. Simply to imply that length leads to burdensomeness seems to be mistaken.

I have retained the issue of complexity. We know that many extremely complex trials that take place will not fall into the category of being capable of being assigned to a judge alone. For example, the Crevice trial which is taking place has lasted many months. We do not know when the verdict will be returned. It is an ordinary criminal case being tried by a jury. It is a matter of great importance involving scientific evidence, and the jury is thought to be capable. My practice included health and safety work. The cases which are contested are often extremely technical in their nature. Jurors arrive in the jury box and are presented with three or four lever arch files to share between two of them, including documents, background material and the business documents of the company concerned and other contractors. During the course of the trial they have to consider expert evidence and sometimes look at models which have been made and brought into the court. All such trials are as complex, or as likely to be as complex, as any fraud trial that I can imagine, and sometimes they last many weeks and months. Yet in those circumstances the Government at the moment—I am mindful of what the hon. and learned Member for Medway says about the risks of the wedge in the door—have not considered suggesting to the House that those trials should be removed from jurors.

Although I will be giving the Government the benefit of the doubt, which I know is disappointing to the hon. Gentleman, I take seriously his point about the wedge in the door. As I have mentioned to my hon. and learned Friend the Solicitor-General, I am concerned about the possibility that if this goes through, the Government might be encouraged to go further. I have had an assurance from my hon. and learned Friend that that will not be the position, but I am concerned. Is the hon. Gentleman aware that the question of the wedge is not lost on a number of Labour Members?

I am pleased to hear the hon. Gentleman's comments, but sorry that I may not be able to persuade him to join us in the Division Lobby on Third Reading and elsewhere during the afternoon, because I fear the wedge. Realistically, the measure is a wedge and the hon. Gentleman should remember what happened during proceedings on the Criminal Justice Act 2003, when the Government were considering much bigger wedges that had to be fiercely resisted.

I am interested in the hon. Gentleman's arguments, with which I sympathise, like my hon. Friend Mr. Winnick. Is the suspicion that the Government have looked for the aspect of law where it might be easiest to argue for the wedge, or are they primarily concerned about fraud? Is the most important thing the wedge or the fraud aspect?

As the hon. Gentleman knows, the Government whom he supports are greatly driven by opinion polls. Indeed, I have come to the conclusion that they frequently take opinion poll soundings. We know a little bit about such soundings, although things may have changed. I once saw an interesting internal document that the Government produced a couple years ago—I am not sure that I should have seen it, but it seemed to land on my desk. It explained some of the Government's background motivation on the issue of fraud trials. It recognised that support for the principle of jury trial was extremely high. Equally, the Government's soundings showed that the public were disquieted by occasional examples of fraud trials that cost huge sums, ran for many months and then collapsed. On the back of those findings, the Government seemed to adopt the approach that they should apply their mind to the issue of long and complex fraud trials, because the findings were a justification that juries should be dispensed with in such cases.

That point is germane to the Amendment because as I was trying to explain, I find it difficult to follow the intellectual argument, since there are plenty of other examples of long and complex trials. Another important point is that the evidence suggests that long and complex fraud trials that collapse do so for reasons that have nothing whatever to do with juries. That is the evidence that came out of Mr. Wooler's report on the Jubilee line case, although at first sight, when his findings were splashed all over the papers, a bad impression was created of a trial with a jury that had lasted 18 months and had collapsed. The trial had cost millions of pounds—I cannot even remember the sums involved, but they were colossal—so it appeared to have a somewhat scandalous quality. However, when one reads Mr. Wooler's report, it turns out that the problems lay with the Crown Prosecution Service's approach to the matter. There may also have been other factors on which Mr. Wooler was not in a position to comment, but one thing is certain: the collapse had nothing to do with the jury. The supporting documentation went quite the other way and showed clearly that the jury was working well in that case.

Is not my hon. Friend's point reinforced, and our concerns about the Government's motivation and the risk of a wedge made even greater, by the fact that in the preface to the report the Attorney-General attempted to fly wholly in the face of the evidence Mr. Wooler had collected? The Attorney-General attempted to whitewash his position by suggesting that the evidence did not justify Mr. Wooler's view that the jury was capable of carrying on with the trial, whereas in fact the detailed evidence and the best research on the attitudes of juries demonstrates clearly that my hon. Friend's position is right. Why did the Attorney-General feel constrained to make such a wildly inaccurate comment—on the face of it—in the preface to the report?

I agree: that point very much troubles me. Furthermore, at the time of the news of the collapse of the Jubilee line case, spin doctors somewhere in Government were hard at work saying that it was a classic illustration of why juries should be got rid of in fraud trials. I certainly do not blame Law Officers for that, but that is what appeared in the newspapers and it came from Government sources. It is apparent that the propaganda machine was well tuned up and that case was seen as a particular opportunity. I cannot help but think that one of the reasons why we have returned to the matter is the stand-off, and the problems, that took place in 2003.

I concur with my hon. Friend about the importance of maintaining the principle of jury trials. Should not Members on both sides of the House who support that principle support the new Clause, too? However imperfectly it may mitigate the breaching of that fundamental principle, it would at least keep the wedge as thin as possible. Those who do not support the new clause, but support the principle, will have to explain why they cannot support a thin wedge. Why are they going along with the fundamentally flawed rationale behind the Bill?

I am grateful to my hon. Friend. I agree. I encourage Members of the House who are concerned about what the Government propose to consider carefully new Clause 5, which is the proposal I am talking about. If we succeeded in incorporating it, the Government would probably still have their Bill—unless we can defeat them on Third Reading, which is inherently unlikely—but it would include a protection that would make it unlikely that a trial without a jury could ever be ordered.

The hon. Gentleman has covered some of the points that I wanted to make. It is an extraordinarily naïve view to suggest that the measure is not the wedge to which he refers. Even if we were to accept the argument that juries have difficulties with such trials, which is not supported by the evidence, the best argument was put forcibly by his right hon. and learned Friend Mr. Hogg: no argument with any intellectual integrity can distinguish between the circumstances of a complex fraud trial and other long and complex trials. Any argument that the Government use, therefore, to support this measure can equally be applied, and sure as eggs is eggs, will be applied, to other trials in the future, which is why it is so imperative that we defeat it either here or in Another place.

I agree. That is what we must all try to do.

I want to bring my remarks to a close. I commend new Clause 5. Although the Bill is a bad one, it will be slightly—very marginally—better if it includes the new clause, because it will be much harder for a prosecutor, in making his application, to succeed in persuading any judge who applies himself rationally to the issue that trial without a jury can be ordered. To succeed in showing that complexity and length will have an impact on the safety of the verdict when all available evidence is to the contrary will be a high hurdle, which is precisely what I want to create.

I shall deal first with the detail of the new clauses before considering the more general arguments made by Opposition Members.

New clauses 4 and 5 would both alter the conditions in subsection 43(5) of the Criminal Justice Act 2003. New Clause 5, on which I understand that Simon Hughes wants to divide the House, would require the legislation to be changed so that it no longer referred to the effect of the length and complexity of the trial in terms of the burden imposed on the jury and the interests of justice, but to the effect on the safety of the verdict. To some extent, we have dealt with those arguments because, as I observed in Committee, the Government do not accept that there will be any effect on the safety of the verdict. We think that judges are able to reach verdicts and that they are able to reach verdicts that are safe. Indeed, every day in this country, district judges do that in magistrates courts and nobody complains about that.

rose—

Let me deal with this issue. I will then give way.

What I have just said is not the reason why section 43 is needed. It is not part of our case to suggest that juries or judges in such cases bring in verdicts that are unsafe. The presence or absence of the jury will not have an effect on the fairness of the trial itself.

In his closing remarks, Mr. Grieve seemed to reveal what the new Clause is really about. He said that if it were passed, it would be very unlikely that there would ever be a non-jury trial. In other words, it is a wrecking Amendment. It seeks to wreck the intention behind the Bill. I therefore inform Opposition Members that the Government will oppose it.

rose—

I will certainly give way to the hon. Gentleman, but I have agreed to give way to David Howarth.

I thank the Solicitor-General for giving way, but he has got the argument the wrong way round. The new Clause is not about the safety of the verdict if there is a judge-only trial; it is about the safety of the verdict if there is a jury trial. The new clause attempts to put into place a rule that says that only if the safety of the verdict would be endangered in a jury trial should a jury trial be excluded. The Solicitor-General might be right to say that that would fundamentally change how the Bill works, but that is the intention behind the new clause.

The hon. Gentleman is right that that is the intention, but I was trying to deal with both sides of the argument: what if there is a jury, and what if a judge makes the decision? In our view, the safety of the verdicts will be there in any event. We are looking at what the best conditions will be for the judge to decide whether it should be a jury or non-jury trial. We therefore need to look at both sides of the argument and our view is that it will be a safe verdict either way.

If it is a safe verdict either way, why are we passing this Bill? That is the question that needs to be addressed. The new Clause is not a wrecking Amendment. I reassure the Solicitor-General that it is designed to go to the very heart of the Government's concerns. In doing so, and if the Government realise that their concerns are misplaced, at this late hour I urge him to tell his colleagues to drop the Bill.

As the hon. Gentleman knows very well, he has misinterpreted what I have just said. We were talking about the safety of the verdict and the verdict would be, no doubt, safe whether it was decided by a jury or a judge. The problem or mischief that we are addressing is how, over a considerable time, the process in serious and complex fraud trials has resulted in the courts and the prosecution, in particular, having to adopt a number of stratagems that have meant that the full culpability of the crime committed by particular individuals has not been exposed in court. That has been done by reducing the number of counts on the indictment so that all the counts that could have been put are not put, by dropping some of the less serious defendants out of the indictment so they never get punished, and by severing indictments so that we get two trials rather than one.

rose—

I am dealing with an Intervention; I will happily give way in due course.

What I have described means that the full culpability of a particular defendant does not get exposed in a particular trial. It may get exposed in a couple or maybe even three trials on occasions, but the case is not properly set out in a trial before the public and before a particular court. That all happens not because that is the way in which the courts want to do things, but because the requirements of oral presentation of documents and evidence to a jury mean that the process that takes place is lengthy and puts a substantial and undue pressure on certain juries.

The hon. Member for Beaconsfield mentioned the report on the Jubilee line case, so let me refer him to that report because it is important that we look at it. Some of the points that he made were accurate; the jury in the Jubilee line case said that it understood the evidence. That was not the dispute that we had in Committee. We take the view that juries are certainly capable of understanding the evidence. Our point is that there is a burden on them.

rose—

Let me deal with the Intervention and then I will give way.

The report on the Jubilee line case gives us evidence of the burden on juries. If the hon. Member for Beaconsfield looks at page 7 and the interviews with jurors in that case, he will see that the report says:

"Some jurors had serious difficulties with their employers, including attempts to dismiss them, and would have liked more concrete help.

There are several quotes from jurors. One said:

"They told me to sign or I would have no job to go back to."

Another said:

"He sent me a P45"

The report adds:

"Unco-operative employers could also cause problems over claims for allowances."

It quotes a juror as saying:

"As a juror it is your responsibility to get the stuff off your work, so if your work is being funny about it, if they don't want to fill in the form...it's a bit of a joke."

There is a whole series of such quotes.

The report goes further on page 13. The hon. Member for Beaconsfield mentioned the report, so let me draw his attention to some of the points on the other side of the argument. The report deals with the jurors' return to work and says:

"Return to work for seven of the 11 interviewed presented continuing problems nearly five months on. These include one who has been made redundant, one in an employment dispute, one required to undertake extensive re-training who has missed a definite and much desired promotion, and one signed off by his doctor as suffering from stress as a result of the work situation."

It goes on.

My point is about the burden being imposed on juries as a result of very lengthy and complex fraud trials, and the House should take cognisance of that. Given those points, we need to ensure that we have legislation that allows the full culpability of a defendant in a complex and serious fraud trial to be exposed before the court without placing such undue burdens on jurors.

As Mr. Hogg said, problems can arise in a range of other lengthy trials. That is certainly the case, but no other area of law or type of criminal case has the history of serious and complex fraud cases. That has been made clear by Roskill and Auld; I do not need to go into the history of this. The House has debated the issues on many occasions.

I can say to my hon. Friend Mr. Winnick that we do not have plans to go further. There is no wedge. This is about a particular area of criminal law that has a long history.

rose—

rose—

I promised to give way, but I then intend to make progress. I give way first to my hon. Friend the Member for Walsall, North and then I will give way to the right hon. and learned Gentleman.

The Government are having a relatively easy time from Labour Members because we recognise many of the arguments that the Solicitor-General he has put forward. But—and there is a "but"—there is the concern that he has just mentioned that the Bill could lead to what the Opposition call a "wedge". The argument is that some other cases go on for a long time and when jurors in them return to work, they could face some of the problems that he has just mentioned. I want to make it absolutely clear that I go as far as what is being proposed, but I would be very much opposed—I believe that quite a number of other Labour Members would be too—if further measures were brought in at some stage that would escalate the pace of change. I am very much an upholder of the jury system

I hear what my hon. Friend says. We have been careful in relation to the Bill. We brought forward, as we promised, a stand-alone Bill. In Committee, there were suggestions from the Opposition that we should go further and extend the opportunities for non-jury trials. It was proposed that there should be so-called equality of arms and that the defence should also have the opportunity to ask for a non-jury trial. We took the view that we have indicated to Members such as my hon. Friend, who have said that they want us to go so far but no further, that that is our view, and so we do not propose to go further in the Bill and extend the provisions to the defence. By its nature, that would mean that there would be more non-jury trials, or at least the opportunity for more non-jury trials. We have therefore taken the view that we will not extend the provisions to the defence.

On the narrow issue of the Jubilee line case and the inquiry, it needs to be placed on the record that the overwhelming burden of the report was that the case was an aberration, because of the way in which it was presented and run, largely by the prosecution. Of course, that put a burden on the jury. However, it also needs to be on the record that in September of the year before the March in which the case was stopped, and also in February, defence counsel wrote to the Attorney-General and told him in terms that the case was an aberration and was heading for the rocks. I am sorry to say that, in September, the Attorney-General, having looked at that correspondence, did not intervene in the case. Had he done so, many of the problems that people are now canvassing would have been avoided.

I hear what my hon. and learned Friend says. I have recently written to him to set out in some detail some of the issues in relation to the Jubilee line case, because he has raised that matter with me on previous occasions, and I thank him for doing so. The report makes it clear that it may well not have been appropriate, in any event, for the Jubilee line case to have been a non-jury trial. To some extent, in dealing with the whole issue of the Jubilee line case, there is a certain amount of academic interest, rather than practical interest, in the sense that the trial probably would not have been suitable under section 43 of the Criminal Justice Act. None the less, the case is of academic interest, and perhaps even practical interest, for this reason: it exposes to some extent some of the issues in relation to burdens on juries and—in terms of the point of view of Opposition Members—the ability of juries to understand cases. Both those issues are exposed in ways that we might not normally get the opportunity to see, because such research is not usually carried out.

rose—

rose—

I promised to give way to the right hon. and learned Member for Sleaford and North Hykeham.

The Solicitor-General really must address the central issue in the debate, which is whether or not the provisions are a wedge. He has quoted from pages 7 and 13 of the report, on the reaction of the jurors and the damage that the case caused to their employment. Those are points that could be made of and in any long case. He has to tell us where the distinction of principle lies between a fraud case and any other long case.

The distinction is quite clear. There is no other area of criminal law that has had the history that complex and serious fraud cases have had. We have had the Auld report and the Roskill report. There has been legislation. We have had many meetings and discussions about this matter. No other area of the law has been subject to such lengthy debate over decades. The issue has a level of uniqueness that enables us to proceed with it. I can say clearly to the right hon. and learned Gentleman and others who may have concerns that we see this as a unique issue. We do not see it as setting a general precedent. We believe that the Bill deals with a particular, unique problem to which attention has been drawn for a considerable time.

Several hon. Members:

rose—

I will give way to the hon. Member for Beaconsfield and then I must make some progress.

My right hon. and learned Friend Mr. Hogg touched on the point that I want to raise. I do not see how the Bill cannot raise general issues of principle. If any trial overruns its estimated time or date—I am afraid that that happens; there are a number of major criminal trials that are nothing to do with fraud that have done so—that will place burdens on the jury. The argument that the Solicitor-General is putting forward could equally well be advanced for those trials. That is why it makes me anxious that that is the point on which the Government seem to have latched. If it is the Government's position that any burden on jurors is unacceptable because it may be disruptive to their lives, the whole jury system is going to collapse.

The hon. Gentleman is not normally accused of hyperbole, but on this occasion such an accusation can fairly be made. The jury system is not in a position where it is likely to collapse. We have nearly 30,000 jury trials in this country. We estimate that the Bill will affect some half a dozen of them. The idea that the jury system is about to collapse as a result of the Bill is ridiculous. We are dealing with a particular area in which there is a unique and long history of reports of a serious nature that have affected reforms across the criminal justice system. There has been a clear indication that the issue needs to be addressed. Some have felt that we can deal with it by means of procedure, but we have tried that repeatedly and we have found that it does not adequately address the problem. The length of some of the trials has been quite great and the way in which evidence has been dealt with in those trials has raised quite serious questions.

Several hon. Members:

rose—

I will give way to the hon. Member for Cambridge and then I really must make progress.

Perhaps I can ask the question slightly differently, and without hyperbole: what difference does it make that the subject matter of the trial was fraud, as opposed to anything else, when it comes to the difficulties that jurors have suffered? If the Solicitor-General cannot explain that to the House, the point made by Mr. Hogg still stands.

Over a long time, we have had a series of reports in relation to the criminal justice system, by serious and eminent lawyers, that have identified serious and complex fraud cases as a particular problem in relation to the way in which evidence needs to be presented orally to a jury. That has produced a series of problems of manageability in those kinds of cases. The issue is the combination of the complex nature of fraud, quite complex areas of law, and quite lengthy documentation—thousands of pages of documents. That means that there can be substantial legal arguments, which means that the jury will be out. We all know the problems that have arisen in serious and complex fraud cases and we all know that they have not arisen in the same way in many other cases. The Government see such cases as a unique issue, which has a long history that other areas of law do not have. We can say with absolutely firmness that there is no wedge. I cannot put it more clearly than that.

I have to make some progress and deal with new Clause 4. I think that the hon. Member for North Southwark and Bermondsey is going to have some problems with new clause 4. It would make another change to the condition in section 43(5) of the Criminal Justice Act. The present subsection states that the judge has to be satisfied that the trial is likely to be so burdensome to a jury that

"the interests of justice require that serious consideration" be given to conducting it without a jury. At first sight, one might be tempted to ask whether it would not be logical to say, as the new clause does,

"so burdensome.. that the interests of justice required that the trial should be conducted without a jury."

The purpose of the condition, however, is not to state the consequence of a finding that the trial is likely to impose a heavy burden, but merely to define the degree of burdensomeness that must be present before use of the power is considered. If the judge finds that a trial is likely to be burdensome to the required degree, it does not follow that he must make an order under section 43 of the Criminal Justice Act 2003. There may be other considerations that prompt him not to do so.

Let me give an example: under section 43(5), defendants are entitled to make representations, and those representations need not be confined to the likely length or complexity of the trial, or the burden it would impose on the jury. A judge might be satisfied that the trial would be burdensome, but might nevertheless find the defendant's representations so persuasive that he decides against making a section 43 order. That is not a problem under the current subsection (5), but the formula in new clause 4, tabled by the hon. Member for North Southwark and Bermondsey, unhelpfully suggests that in such circumstances the interests of justice would require a juryless trial to be ordered. The new clause that he proposes would therefore pose a serious problem, as it would prejudice the rights of defendants and would invalidate their representations.

The other reason why new clause 4 would not be appropriate is that the ultimate decision on whether a juryless trial should be held does not rest solely with the judge hearing the application. The approval of the Lord Chief Justice is also required, under subsection (4). The "serious consideration" referred to in section 43(5) relates not only to the trial judge's consideration in light of representations from both parties—defence and prosecution—but to consideration by a more senior judge of whether a juryless trial is desirable and practicable in all the circumstances. On that basis, I think that the hon. Gentleman is entirely wrong on both new clauses, and I invite hon. Members to reject them.

This debate has been more interesting than I anticipated it would be. We have heard about three different types of argument—my hon. Friends have counted them—for why we should move in the direction proposed by the Government.

I shall concentrate on new Clause 5. The fundamental flaw now revealed in the Government's argument—it has been cited by Liberal Democrat Members—is that they are praying in aid an argument that could apply to any long trial. I should like to discuss the evidence in the Jubilee line case. To those who read our proceedings later, I commend the full, officially commissioned report, "Report on Interviews with Jurors in the Jubilee Line Case", by Professor Sally Lloyd-Bostock of Birmingham university. A section entitled "Effects on employment and careers", from which the Solicitor-General took examples and read excerpts, does indeed say that a long trial could impact adversely on the individuals concerned, but it goes on to address, in greater detail, the issue of fraud trials and the type of trials that we are discussing.

The only substantive addition that I want to make to the debate is to put on record what the report said on that subject, because this debate is not about long trials, but about fraud trials, and uniquely and unusually, we have clear evidence on fraud trials. A section headed "Portrayal in the media" said:

"Jurors felt unfairly portrayed as the cause of the collapse of the trial. They particularly objected to the portrayal of them in the press as unable to understand evidence or remember evidence and reach a fair verdict. Some were not particularly concerned, but others were very upset."

Then there is a quote from someone:

"I was just so angry—to blame us when it was not managed properly, it was a farce."

There is a whole section dealing with jurors' responses to cases such as the Jubilee line case. Bearing in mind that that was one of the longest trials ever and that it was later aborted, it is interesting that under the heading, "The jurors' attitude to their jury service at the start of the trial and as it progressed", the report says:

"All but one juror still definitely support the principle of jury service. There was considerable concern...expressed about the removal of the right to jury trial, including for long trials."

That is the jurors, and not the politicians, speaking. The report quotes a juror:

"on any trial, [trial by jury] is a fundamental right of any British person. If you start bringing in judges, or financial wizards or whatever you are not being judged by your peers."

The professor's report goes on to say, in a section called "The jury's understanding of the case—overview", that

"There are obvious limitations to assessing the extent to which the jury in fact understood the evidence and the issues in the case on the basis of the interviews. Because a juror says he or she understands, we cannot be sure he or she really did. Moreover, the jurors were interviewed almost five months after the...trial...Within those limitations, it did appear that when the case collapsed this jury, taken as a group, had a good understanding of the case, the issues and the evidence so far, as presented to them... The interviews show the importance of considering the jury as a whole."

The report continues:

"The jurors' assessments of their own and others' understanding produced a consistent, generally optimistic picture."

In that same section, following paragraphs show that even though the jurors were interviewed five months later, without their notebooks and their notes, they were not thrown by the fact that the trial was a fraud trial. That is the fundamental point.

The Solicitor-General is wrong when he says, "We've tried everything else," because we have not yet done so. In the past two years, there has been the Lord Chief Justice's protocol of 2005, the changes brought about as a result of the Jubilee line case, the inspector's report and the Law Officers' recommendations, the Fraud Act 2006, and the testing of the domestic violence, Crime and Victims Act 2004. In addition, there is a cross-governmental review that has not yet produced its final report and recommendations. All that has meant that there have been practical changes in the way in which prosecution and defence manage their cases.

The point of new clause 5 is that if we lose the argument on the principle, we at least want some reserve positions or fall-backs. The best fall-back position would be to ensure that burdensomeness and length of trial were not sufficient of themselves; there must be an "interests of justice" case and a "safety of the verdict" case, too. That is why we would include the backstop positions set out in the new clauses.

I ask the House to support new clause 5—if you allow us to vote on it, Mr. Deputy Speaker—not because it would be good to have a Bill that included the Amendment, but because if, in the end, we have to accept a Bill that takes such a nonsensical and illogical route, it is better to make that slight improvement to the conditions that must be met if there is to be a non-jury trial. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.