New Clause 15 — Expert panel

Orders of the Day – in the House of Commons at 3:00 pm on 25th January 2007.

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'(1) Section 43 of the Criminal Justice Act 2003 (c. 44) is amended as follows.

(2) In the headnote at the end insert "but with a panel of experts".

(3) In subsection (2) after "jury", insert "but with a panel of experts".

(4) In subsection (3) after "jury", insert "but with a panel of experts".

(5) In subsection (5) at end insert "but with a panel of experts".

(6) After section 43 insert—

"43A Expert Panel for Fraud Cases

(1) The Lord Chief Justice shall nominate eight experts drawn from—

(a) The Royal Institute of Chartered Accountants,

(b) The Society of Actuaries, or

(c) other persons prescribed by regulations made by the Lord Chancellor

to determine the facts of fraud cases conducted without a jury by virtue of section 43 of this Act.

(2) The judge shall retire with the experts to assist them but shall not determine any question of fact.".'.— [Mr. Grieve.]

Brought up, and read the First time.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

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

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

With this it will be convenient to discuss the following: Government amendments Nos. 1 and 2.

Amendment No. 15, in clause 2, page 1, line 16, at end insert

'or a judge of the Crown Court who shall have been designated by the Lord Chief Justice or by a judge nominated by him to try the case.'.

Government amendments Nos. 3 to 6.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

This is my last attempt in what has been a long process to tempt the Government to take an alternative course of action in the Bill. New clause 15 is drafted simply, and it provides a mechanism so that the prosecution can apply for trials to take place without a jury. The Solicitor-General will know that since the matter first arose in 2003 I have suggested that the Government consider the alternative of special juries if they are worried that the burden would be too great for people summoned off the street to serve on a jury panel, and if they fear that those jurors would not be able to cope with a lengthy trial.

I suggested that a panel might be set up, drawn from organisations such as the Institute of Chartered Accountants, the Society of Actuaries and other persons who clearly had a knowledge of financial documents. The panel could be called upon to form special juries when they were necessary in long and complex fraud cases. The scheme would have the added advantage that those who served on such a panel might well have taken early retirement, would have the sagacity, wisdom and time to do the work, and would be willing to do it. The task would be a public service that offered them fulfilment and interest. I never succeeded in selling the idea to the Attorney-General or the Solicitor-General, which I regret.

The problem that I face with the Bill as it stands is that the title states in rather redolent terms and, I am sure, quite deliberately, "Fraud (Trials without a Jury) Bill", with the consequence that any attempt to introduce in the Bill a special jury is immediately met with the argument that it is out of order because on Second Reading we decided not to have juries.

Photo of Keith Vaz Keith Vaz Labour, Leicester East 3:45 pm, 25th January 2007

The hon. Gentleman spoke of selling his idea to the Attorney-General and the Solicitor-General. Has he had any meetings with the Government to discuss the proposals in the spirit of compromise?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

Let me briefly recap what has happened since 2003. I shall try not to take too long. An assurance was given in 2003, as the right hon. Gentleman will recollect, that the provisions of section 43 of the Criminal Justice Act 2003, which could not be implemented without a resolution of both Houses of Parliament, would not be brought in, and that the Government would look to bring in further primary legislation and would carry out consultations before they did so.

The right hon. Gentleman may also be aware that there is considerable disagreement between the Opposition and the Government as to whether consultation ever took place. The Government's understanding of the consultation was a one morning-long seminar to which people were invited without appreciating that that was the only formal consultation that would take place. I was unable to attend. My noble Friend Lord Kingsland attended and was not aware when he was there that that was the consultation. Other people also attended, I think.

That was not a productive process. The Government then announced that they would proceed by trying to get the affirmative resolutions on section 43. When they tried to do that, the Lords indicated that it was in breach of the undertakings given in 2003 and that they would not go along with it. Following that, negotiations took place. I put it on record that the Attorney-General held meetings on two occasions with myself and other hon. Members, and that we had the opportunity to discuss in his chambers in Buckingham Gate the issues surrounding the options, but without the wider consultation that I expected as a result of the assurances given in 2003 by the then Home Secretary, Mr. Blunkett.

I suggested at that stage that one possible way forward was the special jury system. Although there are drawbacks, I would find that an acceptable solution if it met the Government's anxieties. I regret the fact that the Government have never been able to be tempted, so all I can do at this stage of the Bill is to see whether there are any other solutions that might tempt them.

That is what new clause 15 seeks to do. It would provide for a panel of experts drawn from the Institute of Chartered Accountants, the Society of Actuaries or

"other persons prescribed by regulations made by the Lord Chancellor".

The measure's title would be changed to "Fraud (Trials without a Jury but with a Panel of Experts) Bill."

There is a difference between a panel of experts and a jury. The panel of experts would have exclusive right to determine the facts. To get round the problem that if it retires without the judge it becomes a jury, I included the concession that the judge should retire with it. I am not sure what the judge will do when he retires with the experts, but he could advise them on the law, which would be practical, and remind them of any salient facts. However, he could not determine any factual matter in the case of a disagreement.

That gives me an opportunity to resurrect, even at the eleventh hour, the principle of not following the route that the Government have chosen. If the Government gave even the smallest positive sign that the alternative that I have suggested would commend itself, we might make some progress rather than reaching the position whereby the Bill does not get through the upper House and may have to be pushed through under the Parliament Act. That is undesirable on a matter about which we should attempt to achieve some consensus.

Photo of Robert Marshall-Andrews Robert Marshall-Andrews Labour, Medway

The new clause might help to solve what appears to be the insoluble problem of public interest immunity applications. Will the hon. Gentleman tell me whether that was considered in Committee? If another tribunal will not deal with PII, how is it to be tackled?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

We considered the matter in Committee. Indeed, we discussed the problem that would arise with trial by judge alone if various applications were made to the judge on matters of law, which might mean his being told facts that would not otherwise be placed before him. The Government's attitude was fairly dismissive. They claimed that trained judges can put out of their mind what is irrelevant to their determination of matters of fact. The Government are satisfied that that will happen. I do not have that confidence. I profoundly believe that the system whereby judge and jury have separate roles in criminal justice in the Crown court is important. New clause 15 would go some way towards solving the problem, because the judge could still deal with points of law but have no role in determining questions of fact.

Photo of Robert Marshall-Andrews Robert Marshall-Andrews Labour, Medway

I appreciate that this question would be better directed to the Solicitor-General and I shall attempt to do that in due course. However, given that I did not serve on the Committee, I should be grateful for some guidance. How can the measure deal with articles 6 and 12 of the European convention on human rights? When a case goes to Europe, how could the measure deal with the defence argument of, "I was addressing a judge when he, with the prosecution, was privy to factual matters and allegations of which I had no knowledge"? The Bill would not have a prayer in a European court. How did the Committee consider that?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The matter was discussed in Committee, but the hon. and learned Gentleman would do better to direct his questions to the Solicitor-General. Anxiety was expressed about mixing the role of the judge as guardian of the process with his having to make findings of fact. We went into the process whereby judgments would be given in detail. However, much remained obscure to me. If the Solicitor-General can respond to the matters that the hon. and learned Gentleman has raised, I should be grateful. We did not consider the minutiae of some of the issues that were likely to arise, although my right hon. and learned Friend Mr. Hogg, among others, referred to them.

I do not want to take up more of the House's time on new clause 15. It is an alternative that, I am sure, contains many flaws, but I have to say that if I were offered the choice between the new clause and the Government's preferred option—and they were the only two options available—I would opt for the new clause. It would preserve public confidence in the idea that the decision of innocence or guilt should be made by an independent group of people and not by a judge. I have always believed that that is one of the most profoundly important aspects of the criminal justice system that we possess today. I do not wish to see it eroded.

Briefly, Government amendment No. 1 is designed to provide that a trial by judge alone can be conducted by

"a judge of the Crown Court nominated for the purposes of that section by the Head of Criminal Justice".

Because I have had an opportunity to talk to the Solicitor-General about it previously, I understand the reasons why the Government amendment was tabled. The straightforward argument is that there are not enough High Court judges to do this work, which will be long and onerous, and that some Crown court judges might be capable of sitting alone as judges in long trials.

I have two objections to that. First, my experience suggests that few Crown court judges are capable of sitting as judges alone—certainly not without extensive training. The vast majority of Crown court judges, particularly those with the heaviest work load, tend to come from a background of criminal advocacy—and very good at it they have become, too—and will not have had the experience of collating, marshalling and assembling factual material so as to be able to deliver judgments and manage the trial process. There may be exceptions—I am always prepared to accept that—but I do not think that there will be very many. Oddly enough, the exceptions are most likely to come—certainly in my experience of long fraud trials—from judges who also do civil work. Increasingly in my experience, however, that particular mix has become rarer rather than more common on the circuit benches. For those reasons, I have serious reservations about the proposal.

Secondly, my reservations extend to a matter of principle. I found it slightly curious that in the course of our previous debate, the Solicitor-General said that any suggestion that the defence should be allowed to make an application for trial without a jury

"could increase the number of non-jury trials and might leave us open to accusations of acting in bad faith."

That is what he said in his letter to me. In actual fact, my recollection is that the assurance that a High Court judge would conduct the trial was one of the assurances given by the Government when they were trying to persuade both Houses of Parliament to accept their previous proposals—I see the Solicitor-General nodding—and for that reason alone, I would not be disposed to accept the Government amendment. I am conscious that it will be seen—particularly in the other place, I fear—as a breach of a previous undertaking. I am not quite sure how the Solicitor-General can reconcile this issue with what he said in respect of defendants applying for the right to trial without a jury.

Photo of Mike O'Brien Mike O'Brien Solicitor General, Law Officers' Department

Let me be very clear that it was Opposition Members who raised the issue with us in Committee and we agreed to go away and consider it. It was not an extension of non-jury trials—we had said that we would not do that. I consulted the senior judiciary on the matter and they were very strongly in favour of making the change. In those circumstances, we felt that it was right and proper to bring the change before the House. I do not think that there is any breach of faith. Indeed, during the course of the Committee stage, we listened to Opposition Members, took up a proposition, consulted the judiciary and came back with an amendment. I think that that is acting in good faith.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 4:00 pm, 25th January 2007

That is not the most persuasive argument that the Solicitor-General has ever put forward. He is absolutely right to say that the possibility was raised by the Opposition in Committee. It was debated and we tried to look objectively at its pros and cons. I also said in Committee that, while I appreciated that there was an argument in favour, it was a matter on which I wished to go away and reflect. The Solicitor-General will remember that he and I subsequently had a conversation, during which I explained that, having discussed the matter with my colleagues, particularly those in another place, I had come to the conclusion that I could not support the Government's course of action. As a result of that conversation, I was left with the distinct impression—I do not mean to suggest any kind of breach of good faith here—that the Solicitor-General would proceed with this measure only if there were agreement on all sides that it was the course of action to take.

I was therefore slightly surprised, when I saw the Government amendments, that the matter on which I had suggested that we would support the Government—the right of a defendant to apply for a trial without a jury—had not been proceeded with, and that the Solicitor-General had decided to go ahead with the matter on which I had said that we could not support them—that of allowing Crown court judges to be nominated to hear the cases. I do not take issue with him on this; it is a decision for him, for the Law Officers and for the Government. It is clear, however, that the amendments represent a change from the previous assurance to try to bring people round to the Government's way of thinking. In that sense, what I said earlier was absolutely correct, as I am sure the Solicitor-General will agree.

Photo of Mike O'Brien Mike O'Brien Solicitor General, Law Officers' Department

I do not dispute the history as the hon. Gentleman outlines it. However, as the matter was raised in Committee, the Government took further soundings from the senior judiciary. Having done that, and having received an enthusiastic reaction to the proposal, I believe it was right and proper to respond by bringing the measure back before the House. During our conversations, the hon. Gentleman said that the Opposition—the Conservative Opposition, at least—in another place would not support this change. It was our initial wish that Crown court judges be allowed to carry out the trials. We listened to early representations from the Opposition on the matter back in July, and agreed to change the proposal. However, when the issue was again raised by the Opposition, we took the opportunity to take further soundings from the judiciary, and now we are back here where we are. This has been a fairly straightforward approach. I do not think that my integrity or that of hon. Gentleman is at stake over this, but the Government do wish to proceed with the amendment.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I have no doubt that this exchange will be read with interest in another place. My personal view remains that High Court judges would be better placed to hear such cases, if we are to move to a system of trial by judge alone. The Solicitor-General has said that we are talking about only a handful of cases a year. In those circumstances, while it might prove burdensome for the High Court judges—I am sure that that is why they would like gently to get someone else to do the work—I am afraid that that is a burden that we shall have to impose on them. The Government have in the past recognised people's anxiety that, if such trials were to take place before a judge alone, they should be heard by judges of the highest calibre. In those circumstances, it remains my view that it would be much better for High Court judges to remain the only judges who can try those cases.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I wish to say a few words about amendment No. 15, which stands in my name. It is similar in terms to Government amendment No. 1. I find myself very much in agreement with my hon. Friend Mr. Grieve on new clause 15, which makes me yet more regretful that I do not agree with him on the status of the judge.

I entirely understand the arguments for confining these trials to a judge of the High Court; there is merit in that. It is true, however, that many Crown court judges have extensive experience in fraud cases. I do not have the experience of fraud cases that Mr. Marshall-Andrews has, but I have been involved in two long fraud cases in recent years, both of which were conducted before a Crown court judge. One has only to keep in mind the nature of the cases going through the Old Bailey to recognise that many of its judges have substantial experience in long fraud cases. Some, of course, do not, and that is why a procedure for designation by the Lord Chief Justice or a High Court judge nominated by him as the designating judge should be allowed. I therefore conclude that we should not confine such trials to a High Court judge but should extend the right to Crown court judges who are designated by the Lord Chief Justice.

Photo of Robert Marshall-Andrews Robert Marshall-Andrews Labour, Medway

May I say how much I agree with the right hon. and learned Gentleman's comments and, in this case, with what the Government are trying to do? Does not he share my sadness, however, that amendment No. 13, which he and I tabled jointly, has failed to make the cut? It would have ensured that the case would be tried by the same judge who decided whether it would be judge-alone. First, that is sensible, as the same judge would be reading the papers. Secondly, it would prevent the danger, which I am afraid exists, that one judge will dump on another judge the responsibility of trying a case on his own. If judges are going to make such an onerous order, they should make it for themselves, not for somebody else.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

That is a very sound observation, and I was pleased to add my name to that amendment drafted by the hon. and learned Gentleman.

I shall not oppose Government amendment No. 1, but I shall certainly not go into the Lobby in support of it. I am against the Bill, and I do not wish to be associated with it in a positive way in any Division connected with enacting it.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

All Opposition Members, and many Labour Members, are totally against the Bill. That is our great problem in debating the amendments, because even if every amendment that we supported were passed, we would still be against the Bill on Third Reading. All we are trying to do is make an awful Bill slightly less awful.

Photo of Greg Knight Greg Knight Chair, Procedure Committee

Is not it virtually without precedent that not a single Labour Back Bencher has stood up in support of the measure today?

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

I am not sure that it is without precedent, as I seem to have stood here on many occasions and heard not a single argument in favour of the Government, other than from their Front Bench. That is more a reflection of the quality of the legislation put before us than of the assiduity or otherwise of Labour Back Benchers. It is often difficult for them to support what Ministers would ask us to accept.

We must make a judgment as to whether the amendments would marginally improve an otherwise appalling Bill and should therefore be supported, or whether they cross a narrow line whereby, were they passed, the provisions would still be so abhorrent as to be unacceptable. I have difficulties with the amendments in this group.

I listened carefully to the comments of Mr. Grieve, as I always do, and I know that he is trying to find some escape clause for the Government—some way that they can retreat while retaining some degree of face. He knows that we have all tried to find ways in which some of the arguments used can be accommodated. One of the difficulties is that the argument for the Bill changes almost every time that it is put—sometimes within the space of 10 minutes. The Solicitor-General can veer from one argument in support of the Bill to a totally different one when stymied by an intervention from the Opposition. It is therefore difficult to work out what the Government are trying to achieve. In good faith, however, we have asked whether there are better ways of managing such complex and lengthy trials and of protecting jurors from the difficulties that they might face.

We have always maintained the absolute position that the jury element—not necessarily the 12 good men and true of the present structure, for there are other ways of empanelling a jury, but lay finders of fact—is the essential element. We have to consider whether the panel of experts proposed by the hon. Member for Beaconsfield constitutes a jury. Is he suggesting a form of judging panel, not consisting of lay members of the public who are the peers of the accused? Is he suggesting a different way of setting up a panel of judges? Our view is that the hon. Gentleman's proposal falls on the wrong side of the line.

New clause 15 deals with one of the Solicitor-General's arguments, which is that cases of this kind are terribly difficult and that it is sometimes extremely onerous for juries to comprehend them and assimilate large volumes of material. The professionals suggested by the hon. Gentleman would presumably be better placed to do that than a person drawn at random from the population. The new clause does not, however, pass the other tests that the Government occasionally adduce as reasons for the Bill, and, as I have said, it loses an important ingredient in not retaining the nature of a lay jury. That is why my hon. Friends and I will not be able to support the panel idea, although we applaud the hon. Gentleman for trying to find ways of dissuading the Government from their ultimate course of action, even at this late hour.

Mr. Marshall-Andrews has been very clever in smuggling his amendments, which were not selected, into the debate. I agree with some of the important points that he made, but I cannot agree with him, or with the right hon. and learned Member for—

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

I ought to know that by now.

I cannot agree with the right hon. and learned Gentleman on the issue of the Crown court judge, for a number of reasons. First, these are by definition the most difficult cases, the most complex cases, the cases that may have important implications for other cases or involve careful legal judgments. It seems perverse, therefore, to use a different tier of judges from High Court judges to hear cases ascertained to be the most difficult.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

Does the hon. Gentleman not accept that many cases that are tried before Crown court judges are immensely difficult? I am thinking of long terrorist trials, difficult murder cases and rape cases that depend on complicated DNA evidence. It is wrong, is it not, to suggest that fraud cases are particularly and peculiarly difficult?

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

We are returning, in a circular fashion, to the earlier argument. No, there is nothing particularly different about the length or complexity of fraud cases in comparison with some other classes of case, which is why we are so concerned about the Government's proposals. Given, however, that the Government have decided that these are the most difficult, complex and lengthy fraud cases—so much so that they must remove a key safeguard in our judicial system, and make a judge become a finder of fact as well as assessing the law—it strikes me as perverse that they should be heard by not a High Court but a Crown court judge.

Of course, not every Crown court judge will be involved; the judges will be specially selected. The implication of that is that a couple of Crown court judges will become the specialists in this field. Great dossiers will be plonked on their desks and they will be told, "Here you are; here is a complex fraud case for you to conduct. Goodbye, and see you again in six months." Therefore, there will be a specialist cadre of judges who will look at such cases week in, week out, month in, month out and year in, year out. That raises another important issue in relation to serving the interests of justice—case-hardening for judges, particularly if they are finders of fact as well.

Photo of Robert Marshall-Andrews Robert Marshall-Andrews Labour, Medway 4:15 pm, 25th January 2007

May I profoundly disagree? High Court judges are a brainy lot, but one of the problems in our system is that they often come from a background in which they deal with no crime at all. Our system is unique: we elevate people who are experts in trusts, codicils and wills to the rank of High Court judge and then expect them to deal with murder, mayhem and crime. We have very good Crown court judges, and they understand the problems that the Bill will cause. They will have a far better understanding of the matters we are discussing than High Court judges, and in truth they will be far less likely to grant applications.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

It seems that the hon. and learned Gentleman might be arguing for the recruitment of new High Court judges who are better able to hear such cases, and saying that the current mix in the High Court is inappropriate. I cannot accept that it is right to take Crown court judges away from their duties in order to sequester them for a long time in examining such complex cases without giving them the status or tenure of a High Court judge—especially as by so doing the circuit will be impoverished.

That leads me to my last point. We make huge demands on Crown court judges. There are enormous amounts of work for them to do. They not only have to hear cases involving the huge panoply of new offences that the Government daily create, but now even have to consider carefully whether there are any prisons with free places to which to send the accused person at the end of the case if they are convicted. Our Crown court judges need to be on the circuit where they can do their valuable work. It is worrying that the Government's proposal might have a diluting effect on the judiciary at Crown court level.

Photo of David Howarth David Howarth Shadow Minister (Energy), Trade & Industry

Is not the answer to the point made by Mr. Marshall-Andrews provided by a point that was made by Mr. Grieve? Crown court judges are experienced in fraud trials, but only in fraud trials with juries, and they are not experienced in bench trials. In our system, such trials happen on the civil side but not on the criminal side. Also, High Court judges have experience as fact finders in complex civil trials.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

That is a valid point—and as my hon. Friend said, it was made by the hon. Member for Beaconsfield. The number of judges who are used to trying both criminal and civil cases in Crown court is now extremely limited, so the argument that there is familiarity falls on that basis.

We will oppose the Government's proposals on the extension of the use of Crown court judges. We also cannot accept the new clause tabled by the hon. Member for Beaconsfield, with its panel and, particularly, its curious arrangement that the judge will go into the jury room.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

The hon. Gentleman wishes to tell me that that is perfectly familiar in Napoleonic law.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

It is indeed perfectly familiar in Napoleonic law, so there is a precedent. Whether it is a commendable precedent is an open question.

Photo of David Heath David Heath Shadow Leader of the House of Commons, Shadow Spokesperson (Cabinet Office)

I am not sure that it is an open question; some of us will defend English legal process. The only advantage that I can see of the judge's going into the retiring chamber and acting as some sort of back-seat driver is that it gives new grounds for appeal, which might be a very good thing in this instance. On that basis, we will oppose new clause 15, if it is pressed to a Division, and we will certainly oppose Government amendment No. 1.

Photo of Mike O'Brien Mike O'Brien Solicitor General, Law Officers' Department

Mr. Grieve was not convincing in his efforts to tempt me down the road of accepting new clause 15. He pointed out that he did not really think that it was the right thing to do, that he did not really agree with it fully, and that he was not sure what on earth the panel would do with the judge if they got together. He has therefore made my job of dealing with it rather easy.

New clause 15 would give rise to a number of difficulties. The role of the expert members is uncertain, and there is a risk that their private views about the expert evidence that had appeared before the court would find their way into private discussions with the judge and influence matters in a way that the defence or prosecution might not have had an opportunity to comment on. It is also unclear whether suitable members could be found, how they would be paid, and so on. However, the hon. Gentleman was good enough to say that although he has tabled the new clause, it is not really the way that he wants to approach matters. He wants a special panel that sits separately from the judge.

Our view throughout has been that a key issue is the need to manage such trials in a way that enables a judge to prevent procrastination by defence lawyers. That issue emerged from the report on discussions with the jurors in the Jubilee line case, who were concerned about defence procrastination. Moreover, there is the question of the ability to let lawyers know during the course of proceedings that the judge did understand the nature of the documentation before him, and of the ability to ensure that the case proceeds with much more care and skill and reaches an appropriate and just verdict. In our view, that means that in certain cases, particularly very lengthy and complex ones, there need not always be a jury, and that there would be many cases—at least half a dozen a year—that would benefit from a judge-only trial.

Photo of Robert Marshall-Andrews Robert Marshall-Andrews Labour, Medway

May I take up my hon. and learned Friend on that point? He has said again that there will be about six such cases a year. On what basis has he come up with that figure? I understand that it comes from the Serious Fraud Office, and that the presupposition is that all such cases will be mounted by it. In fact, the vast majority of cases in which such applications are likely to be made are those mounted by Customs and Excise, particularly missing trader intra-Community fraud cases. It seems to many of us who practise in that area that the likelihood is that those applications will be made in far more than six cases.

Photo of Mike O'Brien Mike O'Brien Solicitor General, Law Officers' Department

Let me be clear about this. When we introduced the Bill, it was our view that the figure could be up to 20. However, on looking at the number of cases that, in practice, lasted more than six months in the past four or five years—some lasted more than a year—the figure worked out at about half a dozen. I do not envisage that there will be any great wish to have non-jury trials unless necessary, so it is my view that the likely number is about half a dozen. My hon. and learned Friend is right to say that Her Majesty's Revenue and Customs is one prosecutor that would be likely to make such an application. We have engaged with HMRC and the SFO and talked to them about the sorts of cases in which they might seek a non-jury trial. Our judgment remains that it would be about half a dozen a year. It could be up to 20, but it is very unlikely to be in that range. We are looking at a much lower figure, and certainly in the next two or three years it may be even fewer than six. I cannot give my hon. and learned Friend a cast-iron figure. We do not have anything in statute and we are to some extent relying on the way in which the prosecutors and courts proceed. In due course, we will be able to consider the situation and evaluate how many cases end in non-jury trials in practice.

Photo of Keith Vaz Keith Vaz Labour, Leicester East

In response to an intervention by Mr. Grieve, my hon. and learned Friend the Solicitor-General mentioned that he had had conversations with senior judiciary about the amendment. Is he telling the House that they now support the Bill?

Photo of Mike O'Brien Mike O'Brien Solicitor General, Law Officers' Department

I do not think that the senior judiciary should be involved in a controversial political debate about a Bill. It is not their role to take sides on a controversial political issue like this. I can say that we have discussed the issues. My right hon. Friend knows, because it is a matter of public record, that Lord Justice Auld—and before him, the Roskill report—set out a view, having considered in detail the concerns expressed about serious and complex fraud cases over several years by many sources, including judges and lawyers. Therefore, I shall openly avoid my right hon. Friend's question by saying that I do not want to put the senior judiciary into the position of taking a side on a controversial political issue like this. That is our job.

However, it is appropriate for the senior judiciary to say that they would like to be able to manage in a particular way an issue on which this House has decided. I sought express consent from the president of the Queen's bench division and head of criminal justice, Lord Justice Sir Igor Judge, to indicate his view on the subject and he agreed that I could say that it was his wish that Government amendment No. 1 should form part of the Bill to enable the courts better to manage the process of dealing with non-jury trials.

New clause 15, tabled by Mr. Hogg, would have a similar effect to Government amendment No. 2, the main difference being that our amendment gives to the head of criminal justice a power to nominate or designate a Crown court judge. The new clause would confer the power on the Lord Chief Justice with a specific power of nomination. We consider, and the senior judiciary are confident, that the power is one that it is appropriate to give to the head of criminal justice. Therefore, our view is that the president of the Queen's bench division, the head of the criminal justice system—at present, Lord Justice Sir Igor Judge, and I take this opportunity to congratulate him on confirmation of his position as head of criminal justice yesterday—is the appropriate person to make this decision. It does not have to be the Lord Chief Justice, and indeed his view is that he would prefer it to be the head of criminal justice, who is the president of the Queen's bench division.

The Government amendments were prompted by concern that clause 2 of the Bill might, in its present form, be too inflexible. Opposition Members spoke in Committee of the potential difficulty of finding High Court judges to deal with what, by definition, would be extremely long trials. They argued passionately that I should look at the matter, and I agreed to do so. Government amendment No. 1 is the result. I have spoken to the senior judiciary, who said that they were in favour of it.

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As I said, the number of possible candidates for non-jury trial under section 43 is small, at about half a dozen a year—an estimate based on the number of fraud trials in recent years that have lasted six months or more. Some of the cases in which a section 43 order is made would no doubt be assigned to a High Court judge in any event, but we believe that it makes sense, where possible, to assign very long and complex trials to judges of exceptional ability and appropriate experience. That is why we took up the proposal for a requirement that section 43 applications, and any ensuing trials, should be assigned to High Court judges. However, while some circuit judges are more than capable of dealing with such matters, others are not, and we believe that it is appropriate for the Lord Chief Justice and the head of criminal justice, the head of the Queen's bench division, to take a view as to which judges are suitable.

My hon. and learned Friend Mr. Marshall-Andrews asked whether the same judge who decided that a case should be dealt with under section 43 should be allowed to try that case. We envisage that the head of criminal justice would identify a judge to hear an application, and that if he decided that section 43 applied, that same judge would normally take the case through. However, circumstances might intervene—for example, the judge involved might die, fall ill, or be tied up in another case for a long time.

Although I take the reasonable point put forward by my hon. and learned Friend that it would be better if the judge who makes the initial decision were to take the trial through, I do not want to include in the Bill restrictions on the discretion of the president of the Queen's bench division, who is the head of criminal justice. He ought to be the person to make the judgments involved.

Photo of Robert Marshall-Andrews Robert Marshall-Andrews Labour, Medway

I do not want to embark on an amendment that did not make the cut, but it is obviously desirable that the judge who decides that a trial should be judge-only should be the one to hear it. I can tell my hon. and learned Friend that a great deal of trouble would be caused if judges, and especially High Court judges, were to decide that a trial should be judge-only and then left it to be heard by a Crown court judge who was not involved in the decision. Moreover, if the case changes and a defendant decides to plead guilty after previously pleading not guilty—and if that plea had been part of the original judge's contemplation when making the judge-only ruling—another judge will have a great deal of difficulty in unravelling the original judge's thinking.

If the House of Lords can find a form of words that accommodates my hon. and learned Friend's natural wish not to trammel the discretion of the Lord Chief Justice, but which none the less provides for the exceptional circumstances that he has described, will he look on it with a certain amount of kindness, if not approbation?

Photo of Mike O'Brien Mike O'Brien Solicitor General, Law Officers' Department

I would prefer not to put in the Bill a restriction on the discretion of the president of the Queen's bench division, the head of criminal justice. However, he will be able to look at Hansard and read the arguments advanced by my hon. and learned Friend and me, and we should leave it to him to determine which judge should handle any given case. In some circumstances, he may decide that the judge who heard the initial section 43 application is not the right one to deal with the trial as a whole. It is, however, the case that the way in which the whole process will evolve is one in which hon. Members would prefer the same judge to deal with the case, where that is possible and practicable. That is as far as I want to go. I would rather leave the discretion in the hands of the head of criminal justice. I cannot give an undertaking in relation to any amendment from the Lords.

A number of circuit judges are amply qualified to handle these cases. People like Sir Geoffrey Rivlin and others spring to mind. They could deal with the serious cases if they were disposed to do so. It is not intended that any old circuit judge, to put it carefully, should deal with them. The head of criminal justice will take a view on who would be the appropriate judge to deal with these issues and will ensure that the appropriate judge can handle the array of evidence put before him. Many judges in their careers as barristers will have handled masses of complex material and had to form an opinion on it. I do not see the difficulty with that.

The point made by Mr. Heath completely defeated me. He seemed to suggest that circuit judges ought to be on their circuit and that we could not spare them to deal with complex, serious, fraud cases which took too long, so we had to use High Court judges, who are more senior judges and often deal with more serious cases. That argument does not stack up. We need to ensure that we have the right judge for the right case. We can do that with the Government amendments, and I hope that the House will support them.

I have not dealt with a point raised by my hon. and learned Friend the Member for Medway. Does he wish me to deal with public interest immunity, or is he satisfied at this point?

Photo of Robert Marshall-Andrews Robert Marshall-Andrews Labour, Medway

It would be helpful if my hon. and learned Friend would deal with PII. It causes great concern. How can it possibly be brought within the European convention that a judge sitting as judge of fact and law hears matter from the prosecution to which the defence is not privy and thereafter becomes a judge of fact? I am trying to be helpful, but I would have thought that a case in those circumstances would not have a prayer within the European Court.

Photo of Mike O'Brien Mike O'Brien Solicitor General, Law Officers' Department

I know that this concerns my hon. and learned Friend, so I shall deal with it at some length. The issue requires careful analysis. In much of Europe, single judges or a tribunal will deal with cases. Indeed, in Northern Ireland we have Diplock courts.

The Government are confident that existing public interest immunity procedures are fair and effective and do not in any way endanger the rights of defendants. Currently, both lay magistrates and district judges hear public interest immunity applications and go on to find on the facts. The same is true of Crown court judges, dealing with confiscation proceedings. We are confident that these procedures will work equally well when used in the course of an application under section 43.

Doubts have been expressed about the impartiality of a judge who, having heard information prejudicial to the defendant, goes on to hear the facts. However, having detailed knowledge of this sort of information does not necessarily mean that the judge will automatically be considered prejudiced, as some of those raising objections seem to imply. Rather, the key question must be whether there are any ascertainable facts which would raise legitimate and objectively justified doubts about a judge's impartiality. I am not convinced in general that there are.

The first point to note is that information prejudicial to the defendant is not likely to be the subject of a PII application in any event, but it is possible. Secondly, the judge is perfectly able to disregard any irrelevant information and may indeed be well used to doing so. In the case of R v. H and C, the House of Lords made the following relevant observations:

"If PII applications are confined, as they should be, to material which undermines the prosecution case or strengthens that of the defence, the bench will not be alerted to material damaging to the defendant. If it is, the principles which should govern the court's decision whether to recuse itself are the same as in the case of any other tribunal of fact, but the court's duty of continuing review ordinarily militates in favour of continuing the proceedings before the court which determines the PII application."

In the recent—2005—case of R. v. May and others, which involved carousel fraud, the Court of Appeal considered the fairness of proceedings where the same judge had dealt with PII applications in proceedings for conspiracy to cheat the Revenue and in later confiscation proceedings. The judge stated that in reaching his decisions in the confiscation proceedings, he had ignored any material that he had earlier decided attracted public interest immunity and should not be disclosed. The appellants argued that that was unfair and that the judge should have "recused" himself.

The Court of Appeal rejected that argument and emphasised that it was perfectly possible for a judge in such a position to put prejudicial material out of his mind. As the Court of Appeal said:

"That is a familiar process in judicial decision-making in this country. It is, to take only one example, a process which has to be gone through whenever this court has to consider an appeal both against conviction and against sentence: the court in preparing for the hearing may have seen material relevant to the sentence appeal which it must ignore for the purpose of the conviction appeal. It does so conscientiously."

The Government do not accept that anything in the Bill will prevent defendants from getting a fair trial or lead to any breach of defendants' rights under the European convention. Indeed, I am pleased to note that when the Joint Committee on Human Rights considered those issues, it came down firmly on the Government's side.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

Despite the comments that the Solicitor-General has just made, I do not entirely share his confidence about dealing with either the difficulties that will be faced in respect of public interest immunity applications, or those that will be perceived in respect of judges trying issues of law and fact together in serious criminal cases.

I want to return to new clause 15. The Solicitor-General will not be surprised to learn that I shall seek leave to withdraw it. I fully accept that the new clause and the concept of an expert panel have many shortcomings, but I regret that the Government are so implacably opposed to special juries, because although they, too, have drawbacks, they would be infinitely better than the course on which the Government are embarking, which is to get rid of juries altogether in select cases. For that reason I thought it right to find any creative means of bringing the argument back to the House at a time when the procedures of the House made it extremely difficult to do so.

On the Government's position on trial by Crown court judges, some Crown court judges may be found suitable for such work—I shall forbear to list those who would be wholly unsuitable.

I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.