Clause 3 — Section 43 of the Criminal Justice Act 2003: Northern Ireland

Orders of the Day – in the House of Commons at 4:45 pm on 25th January 2007.

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Amendments proposed: Government No. 3, in page 2, line 6, after 'cases)."', insert—

'(2B) In section 43(2) for "the Head of Criminal Justice" substitute "the Lord Chief Justice of Northern Ireland".'

No. 4, in page 2, line 6, after 'cases)."', insert—

'(2C) In section 43(4) for "the Lord Chief Justice" substitute "the Lord Chief Justice of Northern Ireland".'

No. 5, in page 2, line 6, after 'cases)."', insert—

'(2D) Omit section 43(8).'.

No. 6, in page 2, line 6, at end insert—

'( ) After subsection (10) of that section insert—

"(10A) In section 48(1) for "the Head of Criminal Justice" substitute "the Lord Chief Justice of Northern Ireland".".'.— [Mr. Mike O'Brien.]

Question put, That the amendments be made:—

The House divided: Ayes 283, Noes 184.

Division number 35

See full list of votes (From The Public Whip)

Question accordingly agreed to.

Order for Third Reading read.

Photo of Mike O'Brien Mike O'Brien Solicitor General, Law Officers' Department 5:26 pm, 25th January 2007

I beg to move, That the Bill be now read the Third time.

The Government are committed to rebalancing the criminal justice system in favour of the law-abiding majority. The Bill enables the most serious and complex fraud trials to be heard by a judge alone to ensure that justice is done in those sorts of cases. A trial by a judge sitting alone will be appropriate for only a small number of cases—our estimate is about half a dozen cases each year. The maximum would be about 20, but we do not anticipate that we are likely to get close to that figure. To give us plenty of margin, and so as not to mislead anyone, that is the figure that we have considered. If we are able to have such trials, it will be possible to expose the full criminality of complex and serious fraud cases in court, and our criminal justice system will have the tools that it needs to deal properly with such major crime.

The Bill is not a general attack on jurors. There is no wedge—this is not the thin end of any size of wedge. We are discussing a particular policy to deal with a particular issue. About 30,000 contested trials take place each year. The Bill is likely to affect half a dozen of them. In the magistrates court each day in our country, a district judge often decides verdicts, so no fundamental principle is being breached in the Bill.

What is unique in this case is that there is a long history of reports by Lord Roskill, Lord Justice Auld and others calling for a new way of dealing with complex and serious fraud cases. No such reports have been produced about other areas of criminal law. The Bill is not a general attack on jurors; it deals with a specific issue in a way that is manageable for the courts and that ensures that justice is delivered.

Photo of Bob Spink Bob Spink Conservative, Castle Point

As fraud trials often pivot on whether the defendant has acted dishonestly, and the legal test of dishonesty is what an ordinary citizen perceives to be dishonest, how will excluding the ordinary citizen improve the process?

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

The hon. Gentleman should have listened to what I said. He need only walk down the road and around the corner to what was Horseferry Road magistrates court to see district judges sitting alone and deciding on issues of guilt or innocence in trials. No one has suggested that justice is not done in those cases. No one has suggested that we must have a jury in those cases. No one has suggested that a judge deciding a civil case involving millions of pounds somehow does an injustice. That is complete nonsense.

Juries are important because they involve the citizen in the legal process. They are a safeguard, but they are not infallible, and they are not always, in every single circumstance, the only way in which to decide matters. Indeed, 90 per cent. of cases are not decided before a jury.

I want to ensure that justice is properly done, and particular problems have arisen in complex and serious fraud cases. Roskill outlined them, as did Auld. There has been discussion about this issue for decades. No other area of criminal law prompts the same level of concern. That is why I can say that the issue is unique, and that there is no wedge for the hon. Gentleman to worry about.

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

I will give way to Robert Neill, but then I must make some progress, as other Members may well wish to speak.

Photo of Bob Neill Bob Neill Conservative, Bromley and Chislehurst

Will the Solicitor-General confirm that in the circumstances to which he has referred—summary trial by a district judge or magistrate—there is a limit on sentencing? Sentences of five, six, seven, eight, nine or 10 years cannot be passed as a result of trial by one person alone acting as a tribunal.

If there is a problem with jury trials, why was it possible to deal with Enron, which was an unusually long and complex fraud trial, before a jury in the United States? Is the Solicitor-General saying that British juries cannot get it right but American juries can?

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

The hon. Gentleman has made two points. Neither of them was particularly good, but I will deal with them.

The issue that we were considering was whether justice would be done without a jury. Whatever the sentence that can be imposed by a particular court, the question put to me was whether justice would be done in the deciding of guilt or innocence, and that was the question with which I dealt.

Judges must often deal with issues of sentencing when someone has pleaded guilty, and there is then no issue relating to their sentencing restriction. If someone pleads guilty to fraud, the judge will have to decide the sentence. I am not sure whether the hon. Gentleman was implying that justice would not be done. I was not sure what his argument was; in any event, it was not a good one. As for the American criminal justice system, it is very different from ours. We have our own traditions and processes. One of the key ways in which the Americans deal with cases involves an element of plea bargaining. We are considering all those issues in connection with the fraud review, and in due course we will be able to say how we expect to proceed.

These are interesting issues. As I said, the American system is very different from ours, and in many respects I do not think we want to emulate it, but there are elements of other systems that make it possible for cases of complexity and seriousness to be dealt with in ways that ensure both that justice is done and that we can improve and modernise our own procedures. I am glad to note that we will have the support of the hon. Gentleman in doing so.

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

I will not give way, because many Members will probably wish to speak. Perhaps the hon. Gentleman will catch your eye later, Madam Deputy Speaker.

Our argument has not been that the jury does not understand the process of a complex and serious fraud trial. I have emphasised that it is no part of our argument that jurors do not understand the evidence before them, but that has not prevented some Members from making exactly that claim. That has never been our argument, but it is extraordinary how many times it is necessary to deny having relied on a line of argument that we have made clear we do not advance. Our argument has always been about the burden on the jury, not about lack of understanding.

Our trial system requires oral explanation of documents, and in many complex fraud cases there can be thousands of pages of documents and trials can last for many months, or even for a year or more. Although jurors usually understand the cases before them, the huge burden that the system places on them is, in many ways, intolerable; the Jubilee line case illustrates some of those burdens—it illustrates other issues, too, but I will not rehearse the arguments in respect of them. Despite attempts to use procedural changes to keep trials within reasonable bounds, complex and serious cases can drag on for a year or more. Few people can afford to give up their normal lives for so long, so those who remain on juries are sometimes not entirely representative.

Prosecutors attempt to deal with that problem by reducing the burden on the jury. They adopt stratagems, such as reducing the number of charges on the indictment before the court, dropping the less serious defendants from the entire case so that they might never be brought to justice, and severing the indictments thereby splitting the trial so that there is more than one of them. Each of those stratagems prevents the full culpability of the criminal from being exposed in court. Judges sitting alone will be able to avoid those problems and can hear a large number of charges, look at all the evidence and restrict long-winded speeches by lawyers—which I hope to avoid today.

The Government have carefully considered how to introduce the Bill and we have tried to keep faith with the principles behind it. I have considered Opposition arguments that we should extend some of the provisions for non-jury trials, so that the defence can elect to have such a trial—I explain for the benefit of Members who were not in the Chamber earlier when those arguments were made. We have decided not to do that, although there are arguments for doing it, because we said as a matter of faith that we will stick with what we have proposed, which is that the prosecution will be able to ask the court for non-jury trials and that we will restrict the numbers of such trials.

We have decided to allow, by way of amendment, certain circuit judges as well as High Court judges to hear such cases. That is the right approach. It has the support of the senior judiciary, and I am pleased that Members agreed to our amendment.

We wish to create a mechanism whereby the full culpability of defendants facing some of the most serious charges that can be brought before our courts can be properly dealt with. We want to ensure that the case as a whole is put before the court, that the public know what that case is, and that justice is done.

Photo of Edward Leigh Edward Leigh Chair, Public Accounts Committee

I served on a jury before Christmas, and I was extraordinarily impressed by how dedicated ordinary people were in listening to the evidence and by how much more intelligent they are than we in the establishment think they are. Leaving that point aside, I want to ask the Solicitor-General a question: would he like to be a judge sitting in trial over someone with the individual responsibility both for determining whether that person is guilty and for sending them to prison for many years?

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

Judges in our country often have enormous responsibilities and have over centuries taken on the burden of delivering justice, so I think that they are well capable of doing what we would ask them to do. They already do it in some of the most difficult civil cases. They often have to make decisions in respect of confiscation orders and a range of cases where they sit alone. Our judges are capable of making those judgments, and of making them well. They have a track record in terms of other sorts of cases that they have dealt with that shows that they can do that.

There are about 30,000 jury trials in this country, and our proposals will affect a tiny number—about half a dozen. Also, if we are able to make a move in relation to Diplock courts, in due course the number of jury trials might well increase. Therefore, there is no justification in Opposition Members' claims that this is a general attack on juries. It is my personal view that juries provide one of the best ways of deciding justice, particularly in serious cases, but they are not the only way of delivering justice. I believe that justice is also delivered well in our magistrates courts. When the Bill is enacted—I hope that it will be—we will ensure that we deal with justice in our Crown courts in a very effective way.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General 5:40 pm, 25th January 2007

Every time that I hear the Solicitor-General or another Minister talking about rebalancing the criminal justice system, my heart sinks. It is always the prelude to announcing legislation or a policy that will undermine the principles and practices that are of value to our freedoms and the way that our civil society operates, and which will do absolutely nothing whatsoever in the interests of justice or of reducing crime. This Bill, presented to the House virtually unchanged now that it has gone through on Report, has all the hallmarks of doing the same thing.

It was quite clear during today's debate that when the Solicitor-General said that the Bill was not a wedge, that was a pious aspiration. In logic, it is impossible to differentiate between the complexity and burdensomeness of trials in fraud cases, and of trials that take place regularly in major criminal cases, such as the terrorist trial going on in London at the moment. Once the Government establish the principle in the Bill, they will inexorably move toward arguing that other long and complicated trials are also burdensome and that, as a result, they, too, should be tried by a judge alone.

Photo of Philip Davies Philip Davies Conservative, Shipley

Does my hon. Friend agree that the Bill is typical of what we get from this Government, who take the view that the public are too thick to take their own decisions on anything, and that the state must therefore step in and take the decisions for them? Does he further agree that the Bill should be called the "Government think the public are too thick" Bill?

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

My hon. Friend makes a very good point. There are strong indications that this Government do not like juries and lay magistrates and believe that the expert in the Government ultimately knows best. It is precisely because I disagree profoundly with that idea in matters of the administration of justice that I do not want the Bill to get on the statute book.

The Government's arguments concerning the burdens on juries just do not hold up. The Jubilee line report and the interviews with jurors show clearly that, whatever those burdens may be—they are burdens that jurors have to carry in any major criminal trial—jurors are capable of doing the work. In so far as there may be a problem in that area, one of my regrets is that during the Bill's passage, we have been unable to look at any alternatives because its terms have been so tightly drawn. From Second Reading on, we had to consider only trials without juries. The jury system can be made to work, yet the Government constantly blinker themselves and ignore the improvements that can be made. They themselves have provided in future for the possibility of trial on specimen counts, with the judge determining the other counts thereafter, yet they totally failed to take that into account in bringing the Bill before the House.

Photo of Jeremy Wright Jeremy Wright Conservative, Rugby and Kenilworth

Does my hon. Friend agree that this is a bad Bill not only for the reasons that he is giving, but because it is aimed at entirely the wrong target? Many of the cases that the Government have relied on in support of their argument collapsed not because the jury was to blame, but because the prosecuting authorities were to blame. The cases were withdrawn from the jury by the judge before the jury had a chance to consider them. Nothing that the Government have put forward deals with that scenario.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

My hon. Friend is quite right. All the evidence points that way; indeed, the interviews with the jurors after the Jubilee line case highlighted that issue. Often, these inefficiencies lie with the Crown Prosecution Service, not with the juries. The Government particularly demeaned themselves at the end of the Jubilee line trial, when they put it about in the press that the jury was at fault—a point that emerged clearly during the interviews with the jurors.

There is no need for this legislation. We can continue with the present system, and if courts run themselves efficiently and there is proper trial management, jury trials can be made to work, as has already been shown by the Lord Chief Justice's protocols and guidelines on how such cases can be conducted. It simply is not good enough the Solicitor-General's saying that there are all sorts of cases that are never brought to court—cases that are never tried at all—because of the various difficulties and the burdens on the juries.

History shows that juries will rise to the occasion. Through this Bill, the Government are sending out a dreadful message about the way in which they view participatory democracy in this country. For that reason, if that reason alone, I ask the House to reject the Bill on Third Reading.

Several hon. Members:

rose—

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

Order. I remind all hon. Members that the debate on Third Reading concludes at 6 pm. Several hon. Members are seeking to catch my eye, so I ask for short contributions.

Photo of Keith Vaz Keith Vaz Labour, Leicester East 5:45 pm, 25th January 2007

May I first declare my interest as an employed barrister, although I have never practised in the area under discussion?

I am sorry to say that the reason why we do not have sufficient time is that my hon. and learned Friend the Solicitor-General spent 14 minutes of a 33-minute debate trying to justify a flawed Bill. I have sat through all the proceedings, but I have not heard a persuasive argument from him to justify what will happen if this Bill goes through. In reply to Mr. Grieve, my hon. and learned Friend mentioned the senior judiciary, but then he backtracked and said that he could not quote them. Other than Ministers and their Parliamentary Private Secretaries, I cannot find a single person who is in favour of the Bill. Certainly I am not surprised that so many of my colleagues on the Back Benches have not come in to support the Government on this occasion.

I shall not vote against the Government—[Hon. Members: "Go on."] No, but I will abstain. When removing the fundamental principle of trial by jury, which goes back to Magna Carta, one needs to be very careful. The Government need to reconsider the Bill. When it is defeated in the other place and comes back, they will have to think again.

My hon. and learned Friend the Solicitor-General has not persuaded me on the issue of purpose or of cost, although the Government keep denying that the aim is to save money. He has not persuaded me with the argument that the proposal will affect only a few cases. If only a few cases will be affected, why on earth are we proceeding with a measure that will have fundamental consequences for the way in which we deliver justice in this country? I have been proud of what the Government have done over the past 10 years in modernising the justice system, and we have had some reforming Lord Chancellors, but this is a bad Bill.

The Bill will make progress tonight, but I hope that in the time that it takes to go to the other place and come back my hon. and learned Friend will take the opportunity to reconsider it. I know that he is not driving it, because I did not see from him the passion that I have seen in his 15 years in the House on other issues, even other flawed Home Office Bills. He has pushed such Bills through the House with real passion, but he had no such passion for this Bill tonight.

My hon. and learned Friend tells us that the Bill will affect only six fraud cases, but it would be the start of a process that could see the jury removed from other cases.

Photo of David Winnick David Winnick Labour, Walsall North

Is my right hon. Friend aware that those of us who will support the Bill are giving the Government the benefit of the doubt, but we have many reservations? As I said a moment ago, there is a danger that use of non-jury trials could escalate, and if it did so I would not support it. I hope that the Government take the clear warning: this far and no further.

Photo of Keith Vaz Keith Vaz Labour, Leicester East

I agree with my hon. Friend. He will vote with the Government although he disagrees with the Bill, I will abstain and some will vote against. If that is a warning for my hon. and learned Friend, I hope that he will go back to the Attorney-General and tell him of the real concern in the House. The Bill will go through with the Government's big majority here, but he will have to take into consideration the concerns of hon. Members.

Photo of Simon Hughes Simon Hughes Shadow Attorney General, Shadow Lord Chancellor and Shadow Secretary of State for Justice, Party Chair, Liberal Democrats 5:49 pm, 25th January 2007

This is a four-clause Bill with one proposition. I hope that when the Division comes, colleagues will realise that one cannot object to it by voting for it or abstaining. One can object to it only by opposing it.

On 20 November 2003, the then Home Secretary said that, if this proposal did not achieve the agreement of both Houses, the process of finding an acceptable alternative that did not involve a single judge sitting alone would begin. However, this is not the Bill that the Government were looking for, because it does not contain that alternative mechanism.

Liberal Democrat Members, like our colleagues in the Conservative party and some Labour Back Benchers, oppose the Bill. We have tried to improve it, although our purpose was not to amend it but to bury it. Keith Vaz gave some of the reasons why this is a bad Bill.

First, given the argument about the burdensome nature of certain cases for juries, it cannot be claimed that the Bill will not be the thin of the wedge. Other long cases have just the same effect on jurors' lives. Secondly, although lawyers, judges, the police and the prosecuting authorities are entitled to support the Bill, this House has to balance other considerations. We are entitled to say that their case is not overwhelming. For example, the director of the Serious Fraud Office has said that prosecutions are sometimes not possible under the present jury system, but could be held before a single judge. That suggests that jurors are not able to reach the right answer, and that more convictions could be obtained in judge-only trials. That is an unacceptable proposition, as it undermines the entire case for jury trials.

Thirdly, the Solicitor-General keeps saying that the Government should not be misunderstood and that the Bill has been brought forward only because they want the full culpability and criminality of a case to be put before the court. If that is what we want, we must continue to improve the rules so that it can happen, and indeed many of the relevant rules have been changed in the past few months.

Fourthly, we believe that it is important for the criminal justice process that the roles of judge and jury be separated. In serious cases that come before the senior criminal courts, the jury decides the facts and the judge decides the sentence. The SFO, the Crown Prosecution Service and Her Majesty's Revenue and Customs have not said that they cannot do their work. In fact, they do it increasingly well, and we do not get huge numbers of failed prosecutions.

Fifthly, the Solicitor-General says that the Bill will apply to about six cases a year only but, if that is true, it is not worth making this nonsensical change, as so few cases cannot be a huge burden on the criminal justice system. Sixthly, our present jury arrangements involve lay people at the highest level of the criminal justice system, and that is the most important guarantee that it will retain public confidence. A move to having professionals alone deciding innocence and guilt will undermine that confidence. Moreover, successful appeals against judges' decisions will undermine the respectability of the judges' role.

Seventhly, the evidence from the Jubilee line case is not that the jurors complained about the procedure. They understood exactly what was going on, and what they complained about was the prosecution and the management of the case.

Finally, the Solicitor-General has said on previous occasions that lots of things have changed, with new orders introduced by the Lord Chief Justice, but they have been going for less than two years and are barely tried. In addition, the Fraud Act 2006 is still very new, as are some of the relevant recommendations that have been made. The system that is now in place is very new and untried; we should allow it to bed down properly.

The Government's case for getting rid of jury trials does not improve with serial repetition. Lay juries are a fundamental guarantee that the public play a crucial part in the criminal justice process. More than ever, we need lay people to have confidence in our institutions. They may not trust us, or even the judges, but they do trust the juries.

This Bill has no support among Labour Back Benchers and has secured no agreement across the House. It seeks to take away the right to jury trial, and it is being pushed through by a Labour Government who have been told no, no and no again.

Photo of Robert Marshall-Andrews Robert Marshall-Andrews Labour, Medway 5:54 pm, 25th January 2007

In the limited time available, I will start by giving the Government the benefit of the doubt. It hurts to do so, but I will. I accept for the purposes of argument, and these arguments only, what they say about the slippery slope, the wedge and creep. It is remarkable that when I mentioned that last word my hon. Friend Stephen Pound came into the Chamber. [Laughter.] I accept what the Government say about the dangers of creep.

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

My hon. Friend has got the point—very late. [Laughter.]

What depresses me and many others more than anything else in the Bill is the presupposition that jury service is an unaccountable burden on our fellow citizens. Jury service is not a burden; it is a privilege. It is a privilege which derives from the freedoms with which we were all born. We did not earn the privilege; it has been passed to us from generation to generation over 800 years. Like all privileges, it is not necessarily a pleasure. Often it is not, but as Mr. Grieve said earlier, jury service can be and often is a pleasure, particularly on long trials. He mentioned that long associations are made between jurors and that occasionally they marry. I recollect being invited to just such a wedding after my client, no doubt as a result of the representation that he received, was convicted by those jurors.

We live in an age when our fellow citizens are accused of hedonism, apathy and an indifference to social responsibilities and the way in which they live. Nobody who has sat through a long fraud case or a long trial and watched how jurors—our fellow countrymen—deal with these cases can agree. People come as jurors to trials believing that they will never understand them. After weeks, the fascination with the trial grows. The jurors learn; they bring concentration to the trial. All that gives the lie to the false psychology that tells us that our fellow countrymen have an attention span of three minutes.

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

No. If my hon. Friend had spent more than 10 minutes in this debate, I would give way to him immediately.

In the closing minutes of this debate I wish to point out that we have a right to be tried by jury in this country, but we also have a right to try. That is as much of a right. The Government are not simply giving up the right of people to be tried, but are conceding to professional judges a right to try our fellow citizens which has been with us for 800 years.

Having said that I would give the Government the benefit of the doubt on the question of creep, wedge and slippery slope, in truth I do not concede it. This Government have a rotten record. They have terrible form for attacks on jury trial. They started completely unprovoked in 1998 with murder trial Bills and have continued throughout. We have gone through a black period in the political history of civil liberties in this country. Many of us hope that that black period is rapidly coming to an end. [Hon. Members: "Hear, hear."] If the epitaph is to be forcing this piece of illiberal legislation through Westminster by the use of the Parliament Act and, as has been emphasised, by the use of Members whose constituents will never be affected by it and who will continue to enjoy the benefits of jury trial, that will not only cost Parliament dear, but when the Labour party goes again to the electorate, it will cost it dear.

It being Six o'clock, Madam Deputy Speaker, put forthwith the Question already proposed from the Chair, pursuant to Order [29 November 2006].

The House divided: Ayes 281, Noes 246.

Division number 36

See full list of votes (From The Public Whip)

Question accordingly agreed to.

Bill read the Third time, and passed.