Report received.

Clause 2 [Fraud by false representation]:

moved Amendment No. 1:

Page 2, line 6, leave out "by words or conduct"

My Lords, in moving Amendment No. 1, I shall speak also to Amendment No. 2. It has always been the Government's intention that the Clause 2 offence should apply to representations made to a machine just as it applies to representations made to a person. However, having reflected on the Bill since Committee, we have concluded that as the Bill stands, it is not entirely certain whether the Clause 2 offence would apply equally to representations made to a machine as it does to representations made to a person.

In a letter that I wrote on 15 October of last year I set out how these amendments will clarify the offence to make sure that false representations made to machines would be a crime under the new general offence of fraud. It is clear—and it is stated in the Explanatory Notes to the Bill—that the Clause 2 offence extends to false representations posted on a website. Even if the representation is not read by another person, the information, once transferred to a website, is open to be read and intended to be read by others. The position is not so clear for representations made to a machine, which in some cases may never be read by a person.

In its report, the Law Commission notes that it is arguable whether there is a false representation if data are inputted into a machine even if there is no deception of a person. So there is potentially an element of uncertainty here. The commission was naturally very conscious of the problem of representations to machines, but its view was that the problem would be resolved by Clause 11 as it arises only in relation to services; they are not property and hence cannot be the subject of a theft charge.

The Clause 11 offence should indeed be used in cases where services have been dishonestly obtained, but on one reading of Clause 2 as it stands, the prosecution might need to rely on a charge of theft where property has been obtained by inputting data into a machine. We consider that it would be undesirable to differentiate between cases where property is obtained fraudulently by a representation made to a machine, which in practice operates on behalf of a person, and where the representation is made directly to a person. For example, we see no need to distinguish between a credit or debit card tendered to a machine and cases where the card is tendered to a person. Indeed, in many everyday situations it is a combination of the two and, increasingly, the sales assistant takes a back seat while the customer inputs the PIN into the card machine.

The Law Commission said that its new offence would apply even if the person to whom the card is tendered is indifferent to whether the representation to him is false, but it may not always be clear in such cases whether the representation is actually made to an indifferent sales assistant or simply to the machine. For example, on occasions the sales assistant may not even look at the card as the card owner himself inserts the card into the machine and enters the PIN. The practical difference between a person misusing a credit card before a sales assistant indifferent to whether a representation is false and a representation being made without the presence of any assistants seems to us to be negligible.

We do not want law enforcers to face unreasonably technical choices in making charges and we consider therefore that the Bill should make it clear that a false representation should be an offence whether made to a machine or to a person. This is done by making amendments to provide expressly that representations may be implied and that a representation may be regarded as being made where it or anything implying it is submitted to any system or device, the aim being to clarify, for example, that the entering of a number into a chip-and-pin machine is a representation.

The Clause 2 offence, like the other limbs of the general offence of fraud, is offender-focused. It avoids the need to identify a victim who has been deceived by the actions of the offender. These amendments would ensure that the operation of the offence is properly aligned with this underlying principle. I beg to move.

On Question, amendment agreed to.

moved Amendment No. 2:

Page 2, line 9, at end insert—

"( ) A representation may be express or implied.

( ) For the purposes of this section a representation may be regarded as made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention)."

On Question, amendment agreed to.

moved Amendment No. 3:

After Clause 5, insert the following new clause—

"ABOLITION OF OFFENCE OF CONSPIRACY TO DEFRAUD

The common law offence of conspiracy to defraud is abolished."

My Lords, this amendment introduces into the Bill the abolition of the offence of conspiracy to defraud. In moving the amendment, I wish to speak also to Amendments Nos. 5 to 16 inclusive. Of those, Amendments Nos. 7 to 16 are purely consequential and I shall not mention them further. Amendments Nos. 5 and 6 create a sunrise clause which, for reasons I shall explain later, would delay the implementation of the abolition of the offence of conspiracy to defraud for a period of not less than three years.

The Bill creates a number of new offences and for the first time makes fraud a statutory offence and defines it. Whenever there is a statutory offence, conspiracy to commit that offence is itself an offence—and that is as true of the new offences in this Bill as it is of any other statutory offence. The amendment would not prevent the conviction of those charged with conspiracy to commit any of the statutory offences. It refers merely to the common law offence of conspiracy to defraud. It is said that, as regards conspiracy to commit a statutory offence, there are procedural problems, but these are being reviewed by the Law Commission in its current work on the laws relating to participation in crime, and it is to be hoped that we will have its recommendations quite soon.

The offence of conspiracy to defraud is a common law offence, which means that it has been created by the decisions of judges and not by an Act of Parliament. It is an offence that is anomalous because defendants can be convicted of conspiracy to defraud even if what they have done would not be an offence at all if it was done by one person alone. The Law Commission, in its 1976 report, said emphatically:

"The object of a conspiracy should be limited to the commission of a substantive effect, and there should be no place in a criminal code for a law of conspiracy extending beyond this ambit. An agreement should not be criminal where that which it was agreed should be done would not amount to a criminal offence if committed by one person".

In its latest report from 2002, which led to this Bill, the Law Commission said:

"This Commission has repeated its adherence to this principle in subsequent reports and we believe it commands very wide support. Either conspiracy to defraud is too wide in its scope (in that it catches agreements to do things that are rightly not criminal), or the statutory offences are too narrow (in that they fail to catch certain conduct which should be criminal), or—which is our view—the problem is a combination of the two. On any view, the present position is anomalous and has no place in a coherent criminal law".

Later in the 2002 report, the Law Commission said:

"If it is thought that certain torts, breaches of contract or equitable wrongs should be criminal, legislation can be framed with reference to the particular kinds of conduct involved. To retain conspiracy to defraud on the grounds that it might occasionally prove useful in certain cases would, in our view, be an excess of caution. Since it is not practicable to identify all such cases in advance, it would mean that we could never be in a position to abolish conspiracy to defraud, unless we were willing to replace it with a general dishonesty offence, an option that we rejected in Part 5, above. The advantages of abolishing it, in our view, greatly outweigh any possible advantage that might accrue from retaining it alongside the new offences we recommend. We believe that those offences cover enough of the ground presently covered by conspiracy to defraud to make it unnecessary to retain that offence any longer".

The offence of conspiracy to defraud may indeed have unexpected and unwelcome consequences. Let us take price fixing—a business cartel—as an example. Price fixing was not, I believe, an offence in the United Kingdom until 1998. However, the Americans have successfully argued in an extradition case that a price fixing agreement entered into before 1998 was a conspiracy to defraud in English law and therefore met the test of dual criminality necessary for extradition. This was totally unforeseen and shows the enormous degree of uncertainty that makes conspiracy to defraud an unsatisfactory offence. From the point of view of the prosecution, it may be that this very uncertainty makes it attractive, but this contravenes a basic principle: that the law—in particular, the criminal law—should be certain.

Until now there has been no statutory definition of fraud. We now have one in Clauses 1 to 4 of the Bill. That makes it plainly inappropriate to have an offence of conspiracy to defraud involving acts that do not amount to fraud under the statutory definition. It is possible that the courts might decide that it was no longer appropriate to charge people with common law conspiracy to defraud now that we have a statutory offence of fraud.

I am well aware that the views of the Law Commission have not met with unanimous approval. I have noted, in particular, the views of the Rose committee, chaired by Lord Justice Rose. I understand that and see that it has an arguable case. I believe that the Law Commission has made a convincing case for the abolition of the offence, but I would not object to a trial period to see whether the new offences are effective and whether there is still a need to make use of the common law offence.

The Government, indeed, have said that it is their aim to abolish the common law offence of conspiracy to defraud in the long term. The noble and learned Lord the Attorney-General said in Committee that,

"the Government commit to review the operation of the Act three years after its implementation".—[Hansard, 19/7/05; col. 1447.]

I am certainly happy to accept the three years as being a reasonable trial period. Therefore, our Amendments Nos. 5 and 6 would put on the face of the Bill a prohibition on bringing into force provisions which would abolish the offence of conspiracy to defraud within that three-year period. That does not, of course, mean that the provision will come into force at the end of that period; further time will be needed for review, for example. However, the inclusion of these provisions would, I believe, put some pressure on the Government—which, by that time, may not be the present Government—to proceed with a review soon after the three-year trial period has ended. It would also mean that if the review showed that the common law offence was not needed, provisions to abolish it could be brought into force by a simple commencement order. It would not be necessary to wait for an appropriate Bill and to tag these provisions on to it, which might take considerable time.

If the review showed that the common law offence was still needed, the Government could simply leave the provisions uncommenced and repeal them at a suitable moment. Enacting these provisions again is unlikely to be a priority and, if they are taken out of the Bill, I believe that there is a real risk that they will be ignored by future governments and we will be left for the foreseeable future with an anomalous and uncertain offence. I beg to move.

My Lords, I spoke on this matter, at inordinate length, on Second Reading on 22 June 2005 and in Committee on 19 July 2005.

As your Lordships are aware, under the offence of conspiracy to defraud, it can be a criminal offence for two people to agree to do something that would otherwise be lawful. That poses the following problem to our legal system. The jury's decision on dishonesty determines whether a particular set of facts is a crime. In more technical language, the decision on the mens rea of a crime in a court determines the constitution of the actus reus of a crime, so an activity can be made fraudulent simply because of the jury's decision on dishonesty.

The consequence of this is that it delegates to the jury the responsibility for defining what activity is fraudulent, and that is really the task of Parliament and not the jury. It also enables the prosecutor to prosecute in a criminal court for an activity which the prosecutor thinks ought to be a crime but is not defined as a crime on the statute book.

It is because of this underlying defect—I would say a constitutional defect—in the definition of conspiracy to defraud that the Law Commission in its latest report stated, unequivocally, that the offence ought to be abolished. It also established—in my view, beyond peradventure—that the new definition of fraud is so comprehensive that it covers all the circumstances in which, previously, the offence of conspiracy to defraud had been deployed.

There are, however, circumstances that the new offence might not cover, and the example given by the noble Lord, Lord Goodhart, is one of the more important ones. I submit, however, that if the Government want to make the offence raised by the noble Lord, Lord Goodhart, an offence in criminal law—which they ultimately did, in 1998—they should do so in terms and not retain an ill defined discretion to pick and choose what particular set of facts will be a crime in particular circumstances.

In principle, I would be for following the recommendation from the Law Commission today. However, I recognise—as did the noble Lord, Lord Goodhart—that a number of authoritative bodies have suggested that there may yet be a role for the offence of conspiracy to defraud. I have said, both openly and in private to the noble and learned Lord, Lord Goldsmith, that I have been particularly influenced by the views of the committee chaired by Lord Justice Rose—the finest criminal judge in the country. Therefore, the proposal made in the amendments gets the balance right. Let us see what happens—and whether there is still a need for the offence—then review the whole matter in three years' time. I hope that the noble and learned Lord the Attorney-General will respond constructively to the debate that has just taken place, as I would not want the Government and the Opposition to be confrontational on all this.

In my submission, the offence ought not to be on the statute book. If the Attorney-General still doubts that—since he is not only leader of the criminal Bar, but the Government's adviser on all these matters—then his views should be given real weight. Yet the Law Commission has looked into it in intimate detail and its view should equally be given great weight. In my view, it should prevail after a period of three years.

My Lords, I spoke at Second Reading in favour of abolishing conspiracy to defraud. In many ways, I still favour abolishing such a wide and amorphous way of prosecuting people. It seemed to me that we were missing an opportunity to be rid now of conspiracy to defraud, one which might not arise again. However, the noble and learned Lord the Attorney-General was good enough to send me the views of the Rose committee on this matter, and I have since had an opportunity to talk briefly with Lord Justice Rose. That leaves me in the awkward position of being in favour of both the Law Commission's strong recommendation and, at the same time, the views of Lord Justice Rose. At the moment I am wobbling down in favour of the latter, but I wait to hear how the noble and learned Lord the Attorney-General replies.

My Lords, we return to a topic which we have debated at some length, most recently—albeit some time ago—on 19 July 2005. The essential argument against prospective repeal is that we do not yet have a clear picture of whether repeal is possible and, if so, whether ancillary changes to the law are needed. Let me just make good that latter point: the noble Lord, Lord Kingsland, who has recently spoken, said, if I may paraphrase, that the Law Commission took the view that there was nothing that could not be prosecuted under the new offences that could not be prosecuted under conspiracy to defraud. The noble Lord shakes his head; rightly, if I misunderstood him, as that is not what the Law Commission said. It recognised that the new offences would not cover everything for which conspiracy to defraud could be used.

I am most grateful, my Lords, to the noble and learned Lord for giving way. I had thought that I had said in terms that the new offence of fraud did not cover all possible criminal offences. I had hoped to have made that clear, but if I did not then I would like to do so now.

My Lords, then we are in agreement on what the Law Commission said. The Law Commission recognised that some of the things that would not be covered were things that it accepted there was a good case for saying should be criminal. I make this point at this stage because I have said that we do not yet have a clear picture of whether repeal is possible, and if so whether ancillary changes to the law are needed. Despite the fact that this point has arisen at Second Reading and in Committee, no one has come forward with amendments proposing changes that would go along with the repeal of the common law offence of conspiracy to defraud so as to fit those gaps. I will come back to that—it is one of the disadvantages of a prospective repeal, because we have not identified those gaps perhaps with sufficient precision to be able to say what would need to be put in their place.

The most important point is that we are not yet in a position to draw conclusions from the operation of the new fraud offences. We intend and hope that when the Fraud Act is in force, it will be the primary tool used to prosecute fraudsters. The offences in the Bill, and the charge of conspiracy to commit them, should be flexible enough to cover a wide variety of fraudulent activities, some of which have until now been difficult to capture. Aside from the new general offence, the offences of possessing and making articles to commit fraud and of fraudulent trading applicable to businesses other than companies will assist law enforcers to tackle frauds that previously may have required to be dealt with under the common law.

I have said before that we need to retain common law conspiracy to defraud for two reasons. We have spent a lot of time looking at this. It has meant not just that noble Lords have focused more on this, but that we have focused more on this. I certainly have done so in detail. If anything, I am more persuaded at this point than I was before that we need to retain common law conspiracy to defraud for the time being. First, it has a broad practical application that the Bill's offences may not be able to reproduce in every case. The flexibility of the common law offence is most effective in containing the detail involved in very large and complex cases, where there may be many defendants and multiple counts on an indictment. The conspiracy to defraud offence provides the ability for the prosecution to reveal and for the court to see a fraudulent course of conduct from beginning to end.

On 19 July, I identified some of those people who had taken the view and responded to the Government's consultation by saying that the common law offence should not be repealed. They included, and that had been apparent from the start, those prosecutors who are charged with the responsibility of prosecuting these offences, the Crown Prosecution Service and the Serious Fraud Office. It went beyond that to the Association of Chief Police Officers; the Fraud Advisory Panel, which has a wide and experienced membership; the Law Society; the Confederation of British Industry; the NHS Counter Fraud and Security Management Service; the British Bankers' Association; the Association for Payment Clearing Services; and the British Retail Consortium. Quite a number of different bodies have supported it.

I referred also to the Rose committee in particular. The noble and learned Lord, Lord Lloyd of Berwick, asked me at that stage whether there was any record of what the Rose committee had said. I undertook to follow that up, and I sent to him and to others who took part in the debate the views of Lord Justice Rose and his committee in a letter dated 26 July 2005. As it has been referred to by all those who have spoken so far, it is right that I should put on the record what Lord Justice Rose wrote. He said:

"It would be risky to repeal common law conspiracy to defraud as it can be the most effective charge in a case where multiple defendants are engaged in a fraudulent course of conduct. There are limitations on the law of statutory conspiracy, which has had something of a chequered history. All the judges present at the meeting agreed the Bill should not repeal common law conspiracy to defraud".

I find that a very strong endorsement of where we stand at the moment and of the approach that we ought to adopt.

We will all recall the legislative solutions that we have proposed in the past to solve all problems, but which turned out, in the event, not to do so. This may have been in the mind of the Rose committee at the time. The Theft Acts themselves come into that category; they had to be amended several times and we are now making an even more radical change. It may therefore be cautious of us to want to retain the offence for the time being, but the caution is well supported by those who know what they are talking about. It is an appropriate caution in a serious matter.

The alternative—I used the word on the last occasion—would be irresponsible. In the face of prosecutors, police and senior judges saying that this is a risk, it is not a risk that I am prepared to take. Nobody who is serious about prosecuting fraud—as I hope the whole House is—would want to take that risk.

Nor do we want to add to the real problems we already face in the management of some trials of large or complex cases. We are grateful for the steps that the Lord Chief Justice has taken to address this issue in the protocol for the control and management of heavy fraud and other complex criminal cases. Yet it is too early to reach a conclusion on its effect. We will return to that in the course of this Bill. We also hope that the provisions on multiple offending in the Domestic Violence, Crime and Victims Act, which we plan to implement this year, will have an impact on the management of complex fraud trials. Yet we need experience of how that operates before we can conclude that it has had the affect that we hoped for.

The second reason not to repeal the common law is that there remain some specific forms of conduct that can be prosecuted only as conspiracy to defraud. One reason for that is the problem with statutory conspiracy, because of the limitations in that area of the law. In Committee, and in a letter sent out before that stage, I explained—probably at too much length—some of the problems. A particular problem is where the final offence is committed by somebody outside the conspiracy. A number of people can conspire together, the purpose of which is to ultimately enable someone else to commit an offence. If that person is outside the conspiracy, then they cannot all be charged as part of a statutory conspiracy. Statutory conspiracy also requires a degree of knowledge of the substantive offence to be committed. I have done my best to draw attention to what these problems are; I set it out in the letter, I explained it in the House, and I held an open meeting to which I invited all noble Lords who were interested to hear from technical experts so that we could go into these problems. Unfortunately, only the noble Baroness, Lady Anelay, was able to attend that meeting, but I have done my best to demonstrate the problems. I therefore strongly urge the House to recognise the undesirability of removing this offence for the time being.

The noble Lord, Lord Goodhart, would say that this is not what he is doing, because he leaves a minimum three-year period before the repeal would come into effect. That is not a satisfactory conclusion. It is not tidy, as far as legislation is concerned, to put prospective repeals on to the statute book. I certainly do not think that it is a good way of proceeding when one of the reasons for waiting is to see what gaps, if any, the new offences throw up. Surely the right way to proceed is to review the operation of the new offence, and see whether it establishes not only that the common law offence can after all be repealed, but also what changes may need to be made to go along with that, by bringing certain other offences into statute, and so forth.

I recognise two things: first, that it is necessary to review the operation of the act. I have made that clear, and that the act will be reviewed in three years' time, as the noble Lord, Lord Goodhart, says. That is where he gets his three years from. It will be reviewed. Secondly, I propose to recognise the concerns that some noble Lords have expressed about the overuse of conspiracy to defraud by giving guidance to prosecutors when the new Act comes into effect, outlining the criteria to be considered before they use the common law offence. It will ask prosecutors to consider first whether the behaviour could be prosecuted under statute, under the Fraud Act 2006, or under some other Act as a statutory conspiracy. It will also outline the cases in which the common law charge may be appropriate and—noble Lords may think this important—will ask prosecutors to record their reasons for using the common law charge in any case for which they do so. That will have two benefits: it will ensure that the reviewing prosecutor has focused his or her mind on why the common law offence is the right one to use in that case; but it will also provide us with a record which we can then use to inform our further deliberations in three years' time.

I am concerned that prospective repeal would create difficulties, leaving us with a degree of uncertainty in the law by having something on the statute book which might or might not come into effect. Prosecutors have to plan how they will deal with offences. These offences take time—quite some time, in some cases—to investigate. Knowing what charge you are going to be able to bring is important.

I will be happy to share with noble Lords a working draft of the guidance, if that will be helpful, but I urge noble Lords to see that my proposed review guidance, which will help to inform that review, ought to meet their concerns. It ought to be a happy compromise from our current position.

My Lords, I am grateful to the noble and learned Lord for giving way. Will this draft guidance be available before Third Reading?

My Lords, I do not know whether we have a date for Third Reading. If it will help noble Lords, I will make a draft available before Third Reading.

My Lords, the noble and learned Lord intends to give guidance to British prosecutors with the strong suggestion that they should not be too zealous in their use of the conspiracy offence. Does he agree that he has no influence over American prosecutors?

Little, my Lords. That is an advised remark, because we have quite significant contacts with US prosecutors. But it would be foolish of me to suggest that I can in any sense direct how they proceed in the way that I can give guidance to English and Welsh prosecutors. The noble Lord is absolutely right.

On the basis of what I have said, I invite the noble Lord, Lord Goodhart, not to press his amendment.

My Lords, I remain concerned about this matter. Perhaps the chief problem with the offence of conspiracy to defraud at common law is that it is extremely broad. I note what the noble and learned Lord has said about the Rose committee—Lord Justice Rose has said that it would be risky to repeal the matter. It is risky, although I am inclined to think that whether or not that risk will materialise will be known within the next three years.

The noble and learned Lord has come forward with one new suggestion: that he will give guidance to the prosecutors and produce a working draft of that guidance to be made available to us before Third Reading. I regard this as a finely balanced matter. I note with regret that the noble and learned Lord, Lord Lloyd of Berwick, has wobbled slightly on to the other side. I recognise that there are difficulties. In the circumstances, before I make a final decision, it is my intention that we should see the draft guidance that the noble and learned Lord, Lord Goldsmith, plans to produce. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 4:

After Clause 13, insert the following new clause—

"SUBSTITUTION OF SECTION 43 OF THE CRIMINAL JUSTICE ACT 2003

For section 43 of the Criminal Justice Act 2003 (c. 44) (applications by prosecution for certain fraud cases to be conducted without a jury) substitute—

"43 AMENDMENT OF THE COURTS ACT 2003

(1) The Courts Act 2003 (c. 39) is amended as follows.

(2) In section 69(1), at the beginning insert "Subject to section 69A,".

(3) After section 69, insert—

"69A CRIMINAL PROCEDURE RULES IN COMPLEX FRAUD CASES

(1) There are to be special rules of court (called the "Criminal Procedure Rules in Complex Fraud Cases") governing the practice and procedure to be followed in the Crown Court in complex fraud cases.

(2) Criminal Procedure Rules in complex fraud cases are to be made by the Criminal Procedure Rule Committee.

(3) The power to make Criminal Procedure Rules in Complex Fraud Cases includes power to make provision for—

(a) the determination of a case as a complex fraud case;

(b) management hearings for complex fraud case trials;

(c) prior to the commencement of the trial—

(i) delivery of statements of case by both prosecution and defence;

(ii) agreement of a schedule of relevant facts;

(iii) agreement of documents to be disclosed to the jury;

(iv) agreement of a list of issues;

(v) exchange of expert evidence;

(vi) the determination of preliminary issues, including applications to stay or dismiss for abuse of process;

(vii) on the application of the defendant, indications of sentence from the court.

(d) at trial—

(i) the composition, vetting and challenging of the jury panel;

(ii) the making of opening statements to the jury by both prosecution and defence;

(iii) an appropriate recess thereafter for consideration by the jury of the opening statements, the agreed facts and documents and agreed list of issues;

(iv) opportunities for clarification by the jury of the material and evidence before them at all stages of the trial;

(v) the electronic presentation of evidence;

(vi) the limitation of prolix cross-examination.

(4) The power to make or alter Criminal Procedure Rules in Complex Fraud Cases shall be exercised in accordance with the principles of section 69(4) and shall follow the process set out in section 72.

(5) The Lord Chancellor shall have the same power to amend, repeal or revoke any enactment contained in section 73 in order to facilitate the making of Criminal Procedure Rules in Complex Fraud Cases."

My Lords, I understand that it is the Home Secretary's intention to abolish jury trials in complex fraud cases through a stand-alone Bill, and not to proceed under Section 43 of the Criminal Justice Act 2003. Your Lordships will recall that the noble and learned Lord the Attorney-General announced in June last year that he would introduce measures in both Houses to activate Section 43. We started that process but it will not now be completed.

We on these Benches cannot agree that it is necessary or desirable to abolish juries in complex fraud cases. It is not thought to be in America. The trial of the two top people in Enron started in Houston, Texas at the end of January on 31 counts of conspiracy, fraud, insider trading and lying to auditors. In this country, counsel would then think that it would be a two-year case with, no doubt, return work for a considerable time. What is the estimate for the American case? Four months. A jury was chosen in a single day out of a jury panel of 100 and the case is now well under way.

That raises the question: why do trials in this country in this type of case take such a long time and cost so much? Your Lordships will recall the Jubilee Line trial with six defendants. It collapsed after 18 months—sickness and jury problems, lengthy delays and disruption dogged the proceedings so much that a fair trial became impossible.

I do not believe that it is the fault of the jury or the jury system. From experience, I know that if we were to maintain the same procedures as we had then in a trial before a single judge, not much would be gained. It is the procedures, which are hoary with age, that require to be looked at with a fresh eye. A criminal trial is deemed to commence when the jury is sworn and put in charge of the defendants. Everything that has gone before is regarded as a mere preliminary. In my view, a significant part of the trial should be completed before the jury is ever chosen and the calling of oral evidence begins. That is in accord with the Lord Chief Justice's introduction on 22 March last year of a protocol for the control and management of heavy fraud and other complex cases.

The noble and learned Lord referred to that in the debate on the previous amendment. From the point of view of this amendment, it was interesting to hear him say that it would be appropriate to have some time to see whether that protocol works. The proposal to abolish jury trials before the protocol has had the slightest chance of proving its worth is entirely premature. From what the noble and learned Lord said a moment ago, he might agree. The protocol gives guidance on case management, disclosure, abuse of process, and so on. It has the advantage of being flexible and can be changed from time to time as practice develops. However, the protocol does not have any statutory backing and cannot change the substantive law.

The purpose of my amendment is to create specific criminal procedure rules for complex fraud cases. It may be said by the noble and learned Lord that the Criminal Procedure Rules Committee already has power to make special provision in special types of cases. It seems to me that the complex fraud case requires rules of its own so that special procedures can be brought in. If those rules are brought into being, they will ensure that the issues are completely clear and open prior to the trial before the jury. No more would the defence hug to itself the nature of its defence and fail to disclose it. There should be a statement of case by both sides, agreement of facts and documents and disposal of all the issues which otherwise clutter up and delay the trial before the jury.

I consider it important that there should be a statutory framework for the indications of sentence by the trial judge on a plea of guilty. That is normally called plea bargaining. In no other case can there be so much saving of public money and court time than in these fraud cases which take so long. The process of plea bargaining has historically in this country been in disrepute on the basis that it places too much pressure on an innocent man to plead guilty and to settle for a lesser sentence. But there are, and always have been, considerable negotiations prior to trial between counsel on both sides as to the specific charges and the factual basis of a plea of guilty if one is tendered. So there is already a degree of plea bargaining in the system, and has been for as long as I can remember.

However, indications of sentence are not done openly. In my experience, indications of sentence have always been made. In the old days, the judge's clerk was the important conduit of information, but hints and winks give rise to misunderstanding. The climate has now changed completely. I look for a more open and transparent system. In the case of Goodyear in April of last year, a five-judge court of the Court of Appeal headed by the Lord Chief Justice and the Deputy Lord Chief Justice said:

"We cannot, and do not seek to, water down the essential principle that the defendant's plea must always be made voluntarily and free from any improper pressure. On closer analysis, however, we cannot discern any clash between this principle, and a process by which the defendant personally may instruct his counsel to seek an indication from the judge of his current view of the maximum sentence which will be imposed on the defendant. In effect, this simply substitutes the defendant's legitimate reliance on counsel's assessment of the likely sentence with the more accurate indication provided by the judge himself".

So the climate has changed dramatically and plea bargaining involving the judge is now countenanced by the Court of Appeal. It seems to me that it would be right and proper, particularly for this type of case, to introduce a statutory framework.

With regard to procedures at trial, the amendment sets out significant procedural reforms. Juries are vetted now for their criminal records and, in relation to terrorist offences, by the security services. Questions are asked frequently of jurors where there might be bias. I recall the case of Shankland and Hancock, miners in the miners' strike, and the death of a taxi driver as a result of a concrete block being thrown over a bridge. I recall the late and lamented Lord Williams of Mostyn on behalf of the defence asking the judge whether he could exclude anyone from the jury who was related to taxi drivers. For the prosecution, I said that I was not seeking to remove people who were related to miners, so we got on with it.

The point is that there always has been an attempt to see whether there is any inbuilt bias. I see no reason why in a fraud case inquiries cannot properly be made of the jury panel as to basic literacy, numeracy and familiarity with the English language, depending upon the nature of the case. Indeed, I note that the consultation paper put out by the Government in 1998 envisaged jury vetting in this type of case, to see whether the jury will understand. At the moment, the only check is if a juryman stumbles when he takes the oath—frequently, he will then be asked by the judge to excuse himself if the case involves a lot of documents. There is no other opportunity for testing the competence of the juror. Noble Lords will see that I have therefore included in this amendment a provision to consider the vetting of juries.

The order of speeches in a criminal trial dates back to Lord Denman's Act—to Section 2 of the Criminal Procedure Act 1865. If the jury would grasp a complicated case by hearing counsel from both sides set out their stall at the beginning, there is no reason why opening statements from both sides should not be made. That is thought to be heretical at the moment, but there is no reason why it should not happen, as it does in other common law countries. I also suggest in the amendment that there should be time for private consideration by the jury of all the documents, opening statements, agreed facts and so on. There is no reason why the jury should be plunged directly into the oral evidence.

I also refer to questioning by the jury. Questions can and frequently are asked by juries now, but they are in no way encouraged. There is almost no case law on this. I think that there is a brief reference in an 1896 case, but only in one modern case was it raised as a ground of appeal—the case of Barnes in 1991. In that case, the judge was dissatisfied with the cross-examination of the defendant by prosecuting counsel and invited the jury to formulate additional questions. Lord Justice Russell, in the Court of Appeal, said that the practice of inviting juries to ask questions was generally speaking to be deprecated, because they are not familiar with the rules about evidence and might ask questions which would be difficult to deal with. The appeal failed, but the case turned on its own facts. In a complex case, by contrast, surely it would be sensible to put aside time to answer queries raised formally by the jury at any stage of the trial. Communication is a good thing. Their questions might well throw up misunderstandings that can be quickly cleared up or points that can be answered by the evidence.

I do not suggest that this amendment contains an exhaustive list of procedural improvements. A significant shortening of trials might arise from another quarter—the Government's other proposals gradually to reduce refresher fees to counsel as the days draw on. Before Third Reading, the Government might like to take time to consider the existing protocol that has been issued by the Lord Chief Justice—bearing in mind, as the noble and learned Lord the Attorney-General said, that it has not had time to work—backed by procedural rules that can make substantive changes to current procedures. I suggest that that is a better way forward. Before this Government make another of their never-ending attempts to abolish the fundamental principle of jury trials, they should see whether these less drastic reforms will bring the improvements in time and cost that they want and that anyone who is concerned with the efficient and proper dispatch of the processes of the criminal justice system also requires. I beg to move.

My Lords, the noble Lord, Lord Thomas of Gresford, has said some constructive things. He introduces an important aspect, to which I am sure the noble and learned Lord the Attorney-General will give thought. The key to the solution to the problem of jury trials lies not in the jury but in the prosecution and the judge and in taking and keeping a firm grip on the case from start to finish.

We have had many debates on the jury system. The key points in favour of the jury are its independence, the care with which it considers such cases and the confidence that it carries with the public. It is perfectly clear—it could hardly be clearer than from the Jubilee Line case, which seems to have set this particular hare running—that the problem when major and complex cases collapse, as, from time to time, they do, lies not with the jury but with the judge or the prosecutor.

I grew up, in parliamentary terms, with the development of the Serious Fraud Office. I remember vividly the days when long and complex frauds were tried, even before the era of the fraud investigation groups which, for the first time, brought police, accountants and prosecutors—barristers—to work closely together. In the end, that was taken forward—very successfully, in my view—by the Serious Fraud Office. It is that fraud investigation group approach—that combination of professions—that is of the essence in successful prosecution of fraud. It was highly controversial from time to time during the late 1980s and early 1990s. There were one or two collapses and the unfortunate Serious Fraud Office was sometimes called the "serious farce office". That was mostly extremely unfair. It highlighted the fact that the kind of people whom you must prosecute are often very powerful people in their own right. They have made a great deal of money, often dishonestly, and they spend it fighting the case—as they are perfectly entitled to do—both in court and through the newspapers.

I invite the noble and learned Lord the Attorney-General to backtrack. If we actually analyse how serious fraud cases have been tried during the past 15 years, we find that the great majority have been effectively tried. Juries are in no sense reluctant to convict in cases of serious fraud. In fact, conviction levels—if one pays attention to them—are actually higher than in the ordinary run of criminal cases. The main theme of my speech is that, when a case has gone wrong, it is nearly always, in fact I think always, the fault either of the prosecution—I say that kindly, because these are difficult cases to prosecute—or of the judge, or both.

I saw a slight wrinkle on the brow of the noble and learned Lord the Attorney-General when I mentioned the Jubilee Line case, but I think that we are still waiting for the report—at least, the Library cannot find it—

My Lords, I am grateful to the noble and learned Lord for giving way. My brow did wrinkle—I apologise for wrinkling—simply because the noble and learned Lord suggested that it was the collapse of the Jubilee Line case that prompted the Government to implement Section 43 of the Criminal Justice Act 2003. I can assure him that it was not. It was passed in 2003 and the decision to implement it had been taken before the Jubilee Line case. I have never suggested, and I do not suggest, that the Jubilee Line case, which has particular features, is the reason or a justification for the measure. That is the reason for my wrinkle.

My Lords, I am most grateful to the noble and learned Lord. Wrinkles are helpful: one should be sensitive to every mark and move in a debate. The noble and learned Lord is absolutely right. Although there was a great deal of reference by government to that after the Jubilee Line case—it certainly came out in the newspapers that one solution was going to be to abolish the jury—I will rapidly accept if he tells me so that it did not come from the Attorney-General's chambers. However, it certainly figured in newspaper reports at the time and the Jubilee Line case is an exact example of a case where no one could have suggested that it was the fault of the jury.

The highest one could go—even this would be a bad point—would be to say that the fact that one has to explain things to the jury or that one has to argue things in the absence of the jury in some ways complicates the case, but I put it no higher than that. The Jubilee Line case, to have it on the record, was supposed to take 18 months. It was still going on after two years and the prosecution case had not even been concluded. In the last seven months of the case the jury got into court on only 13 out of 91 days. I take those figures from the Guardian newspaper and they may or may not be accurate, but that was what was stated in the public prints; it is quite instructive.

Again I have made efforts and I look to the noble and learned Lord the Attorney-General to tell us when we are going to see the CPS Inspectorate's report on the case. One of the things that the noble and learned Lord the Lord Chancellor said at that time was that he was determined to put an end to fraud cases that took 18 months or longer. Will he in his winding-up speech tell us whether we can have an end to 12-month inquiries into collapsed cases? We are coming up to the anniversary of the collapse of the Jubilee Line case and we are waiting to hear what the CPS Inspectorate thinks about it and to have the opportunity to reflect on its analysis. I close on the key point, to which I return: for 10 years, from 1987 to 1997, I looked at every serious complex fraud case that collapsed. In every case it was a combination of over-complexity, as it was with the Jubilee Line case. The word on the street among my friends at the criminal Bar is that the essence of the Jubilee Line case was corruption and it was complicated by a complex addition of fraud charges. It could probably have been dealt with a great deal more expeditiously and simply.

Mr Stephen Wooler and his colleagues will be reflecting on that matter and I am sure they will answer that point among others. The other point is that it is important to have a judge who is an expert in the field. The judge in that case was deeply respected and a fine ordinary criminal judge—by saying "ordinary criminal" I do not mean that that is any less clever-clever, or anything else, but it is different from having experience of long and complex fraud cases. She was invited to take on the case in her 69th year—her last case. In the management of such matters one has to be careful who one asks to do things and at what stage in their career, because the combination led to the problem. That is not new; it had happened before in one form or another in all of the serious complex cases that collapsed between 1987 and 1997. The blame should not be laid at the door of the juries, and our liberties, which depend so strongly on the jury, should not be swept aside.

My Lords, I have received—

My Lords, perhaps I may intervene before the noble Lord, Lord Kingsland, speaks. I have one or two random points to make in regard to jury trial and the present situation. First, it would be totally unrealistic if we did not recognise that there was a perception among the minorities that one obtained a better category of justice through trial by judge and jury than by judge alone. There is a basis to that perception. Some may have an inbuilt, albeit perhaps very rare, bias against the defence. The professional judge can become case-hardened as a result of hearing the same defence over and over again, whereas the jury has not heard it before or has come to it with a greater understanding. Certainly, the jury does not run the risk of missing a good case because of the very small incidence in which it has care. I think this perception is particularly strong among foreigners who come to this country and among the minorities who are convinced that they stand a much better chance of a sympathetic hearing before a jury than before a judge alone.

Another matter to which I wish to draw attention is the suggestion about plea bargaining. It is a long time since I was personally involved as chairman of the Bar Council, when I discussed this matter with the then Lord Chief Justice and the fact that the greatest degree to which a judge would permit a discussion was to say, "Win, lose or draw, the sentence is likely to be X", and that anything else ran the risk of putting pressure on the accused to accept what could so easily be put in front of him to speed up the process. It is highly dangerous—this has happened so frequently in other jurisdictions—to put too much weight on the sentence and the degree to which it can be reduced in order to speed up the process. It results in sloppy preparation and over-indictment, and it places the accused in a highly difficult position.

My Lords, I hope I have been forgiven for my impertinence in coming from Scotland and speaking in this debate, not having spoken earlier, although there might be advantages in coming from a different jurisdiction with quite different rules. I am emboldened to speak by an experience that I had some 30 years ago, when I prosecuted what was then the longest fraud trial in Scotland in 1964 or 1965; indeed, it was the longest trial of any kind in Scotland for more than 30 years—it lasted 18 days. That is a rather different type of trial from the Jubilee Line or others mentioned by the noble Lord, Lord Thomas of Gresford.

I looked with great care at Lord Roskill's report—I have no doubt that many of your Lordships are extremely familiar with it. According to my analysis of the perhaps 28 types of fraud that were specified and analysed in that report, almost all—I think 27 of them—depended on proving that someone had forged a signature, substituted a false document, destroyed documents or something of that kind. Ultimately, the point tends to be rather simple. For that type of reason, I support the principle behind this amendment proposed by the noble Lord, Lord Thomas.

Even complex fraud cases turn on one or two fairly simple points which can be demonstrated with appropriate skills to juries. In Scotland, we are so confident in the capacity of jurors to pick up the point that we do not have opening speeches in jury trials. I have always argued that it is important for the jury to understand the case not at the beginning, but at the end of the trial. The speech can introduce only elements of prejudice. I would maintain that position even in relation to matters of fraud.

In my time at the Bar, which now exceeds half a century, there have been enormous advances in the technical aids available. I have seen television used very skilfully, and other technical aids used which enable juries to understand what is going on. I have written about this final point previously. Lawyers who practise in front of courts have an immense amount to learn from television presenters. You can watch a television programme for 30 minutes, an hour, or an hour and a half, and can discover all that you need to know about Enron or any other big fraud case. It is time that lawyers, including judges, learnt the skills that journalists bring to the presentation to the public of complex matters on television. For those general reasons, I hope that your Lordships will forgive me for rising to support the principle behind the amendment.

My Lords, I have received an oral assurance from the noble and learned Lord the Attorney-General that the Government will proceed to implement Section 43 of the Criminal Justice Act 2003 only by primary legislation. I am sure that the noble and learned Lord will confirm that on the Floor of the House. On that basis, we have not tabled an amendment to remove Section 43 from the 2003 Act. Had we done so, its text would have been very close to that of the noble Lord, Lord Thomas of Gresford, and justified for the reasons that the noble Lord has so comprehensively given.

The noble and learned Lord the Attorney-General's assurance is consistent with the undertaking given to another place by the right honourable gentleman the Home Secretary, Mr Blunkett, at Third Reading of the Criminal Justice Bill. He said that if Section 43 remained on the face of the Bill, full consultation would take place with the opposition parties, followed by a proposal which would form part of subsequent primary legislation.

I understand that the Government intend to bring forward in another place a single-issue Bill on jury trial in complex fraud cases as early as parliamentary time will allow. I hope that, before they take that decision, at least the decision about timing, they will reflect on a number of considerations.

First, we have spent a great deal of time in your Lordships' House debating a new definition of fraud. One of the reasons why this review by the Law Commission has been undertaken is that the old definition was deeply unsatisfactory. It was over-complex and, in addition, not sufficiently comprehensive. Would it not be a good idea for the Government to give an opportunity for the new definition to take effect? It may be that the greater simplicity of the definition of "fraud" will be more easily understood by juries and will, therefore, shorten trials—which is the main purpose for which the noble and learned Lord has expressed concern about the continued existence of juries in complex fraud cases.

Secondly, as the noble Lord, Lord Thomas of Gresford, said so effectively, let us have some more time to see what effect the protocol of the noble and learned Lord, Lord Woolf, will have; because that too may have a dramatic influence on the length of complex fraud trials.

The evidence before us so far does not establish that the existence of juries in complex fraud cases lengthens those cases. I hope that, before the Government will consider bringing legislation before another place, the noble and learned Lord will engage in an examination of at least some of the major complex fraud cases that have taken place in the past two or three years, to try and determine exactly what role the jury plays. We know that the noble and learned Lord does not consider the problem to be the make-up of the jury—because he has expressed his view that having a jury of experts rather than laymen would contribute nothing to the solution. It is not the composition of the jury but the fact of the jury which is his problem. May I suggest that he looks at, say, a dozen cases that have taken place over the past two years, to establish what contribution the fact of the jury has made to the length of the case? We would all find that evidence enormously valuable.

My Lords, the amendment moved by the noble Lord, Lord Thomas of Gresford, would repeal a provision that was enacted two years ago and replace it with another which, as I shall explain, will add little or nothing to the law as it stands and would, in the Government's view, be ineffective in dealing with the problem presented by very long fraud trials.

Section 43 of the Criminal Justice Act 2003 provides that in a small number of complex fraud cases, where strict statutory criteria—including the approval of the trial judge and the Lord Chief Justice—have been met, the trial may take place without a jury. The implementation of Section 43 was made subject to the unusual requirement of the affirmative resolution process of both Houses, explicitly an order to enable discussions to take place with the parties opposite about possible alternatives to trial by judge alone. I do not want to raise the temperature in the House by labouring the point too much, but the noble Lord, Lord Kingsland, knows well that I do not agree with him on the interpretation of what was said at the conclusion of that Bill. In particular, I do not agree that there was any undertaking that the implementation of Section 43 would only take place through primary legislation; quite the opposite. However, a year ago I chaired a seminar intended to be the forum for the discussions promised.

Your Lordships may recall that last June, when I announced the Government's intention of seeking to implement Section 43, there was some discontent about the manner in which we had made good our undertaking again. I will make it clear: I do not and I have never accepted that discontent. Be that as it may, the point was raised again when the order was debated in Committee in another place. It therefore seemed desirable to have another attempt at engaging with the parties opposite. I have been happy to do that and a meeting took place on 25 January. I had hoped to be able to say that as a result of that meeting, agreement had been reached on the terms on which Section 43 of the Criminal Justice Act could be implemented. I put forward a number of possible modifications that the Government would have been content to make to the statutory arrangements, and there was some indication that these, taken together, might prove acceptable to the opposition parties. I very much regret that, to date, it has not proved possible for them to agree such a compromise.

The noble Lord, Lord Thomas of Gresford, argues that trials could be reduced in length by special procedures of the kind set out in his amendment, which he considered would promote better case management. But much of what he proposes has already been done. Case management tools are already available in serious fraud cases. For example, in the type of serious or complex fraud we are discussing, a preparatory hearing under the Criminal Justice Act 1987 almost invariably will be held. In those circumstances, I do not understand what his proposal for management hearings for complex fraud case trials adds to what is already provided. Under the 1987 Act the judge already has extensive powers to regulate how the prosecution presents its case as well as powers to order the defence to identify its objections. Many measures are already in place to ensure better case management. They can be found in the Criminal Procedure Rules or in the last Lord Chief Justice's protocol for the control and management of heavy fraud and other complex criminal cases. Again, there they are.

Not for a moment do I deny the importance of applying good case management tools. I am strongly in favour of that, and have said so on a number of occasions, but I waited to hear from the noble Lord, Lord Thomas of Gresford, which of the provisions in his amendment actually adds something new to rules which already exist, to powers which already exist, or to rule-making powers which already exist. He spent some time on the issue of indications of sentence, but as he himself has recognised, a five-man Court of Appeal—it is an important event when a five-man court sits specifically in order to consider making a change to practice—decided in Goodyear that sentence indications, on the application of the defendant, as the noble Lord's amendment says, should be possible. They so decided and to my certain knowledge—and no doubt to that of the noble Lord as well—it is now happening in courts up and down the country. There may be differences of view on whether it is a good idea, and I note the points made by the noble and learned Lord, Lord Ackner; I certainly do not think they are a bad thing. On the contrary, I agree with the noble Lord, Lord Thomas, that they are desirable, just as I agree it is desirable that, if possible, there should be agreements on schedules of relevant facts and issues, and that statements should be made by both sides. That is set out specifically in the protocol of the noble and learned Lord, Lord Woolf: there should be statements of case.

The noble Lord, Lord Thomas, said it would be a good idea if the defendant made an opening statement. I have been in court when such things have happened. It is not regular, but nothing at the moment would prevent it taking place. So while I do not deny the desirability of good case management, nothing in this amendment adds to the powers that already exist. What is more, it might be harmful. If one appears to give specific powers in the case of serious fraud, that could cast doubt on whether powers already given to the committee are sufficient to allow it to make rules covering all criminal proceedings.

The noble and learned Lord, Lord McCluskey, talked about lawyers becoming television presenters and presenting their cases in half or three-quarters of an hour. If the noble and learned Lord the Lord Chancellor were now in his place on the Woolsack, responsible as he is for the Legal Aid Fund, I do not doubt that he would be absolutely delighted at the prospect. So too might members of the public be delighted to see cases presented in that way. Again, I do not for a moment underestimate the desirability of the points made.

However—this is the second objection—I do not believe that welcome though better case management is, it would be a complete solution in complex fraud trials. I have previously pointed out that one of my major concerns is that the effect of measures designed to reduce a case to manageable size may be that crucial evidence cannot be heard by the jury. How is case management achieved? Frequently, the judge requires a case to be severed, or the prosecution recognises that it must sever a case by taking out defendants or counts. In the Maxwell case, for example, although the prosecution, the judge and almost all defence counsel believed it would be best if all matters were heard together, the view was that this would be unmanageable before a jury, and so it did not happen.

Where efforts are made to reduce the amount of evidence put before juries, the effect can be that the defendants do not face justice for the full extent of their criminality. In one well known case the defendant pleaded guilty to two out of 22 counts and received a non-custodial sentence. The trial judge had excluded a substantial body of evidence, not because it was irrelevant or inadmissible, but because it would be unimaginable for the jury, and would make the trial unacceptably long.

My Lords, I am most grateful to the noble and learned Lord, who is referring to the Levitt case. I have the highest respect for the Lord Justice who tried that case, but it was an example of things not going as they should have done. Regrettably, it came to that rather unsatisfactory conclusion, but I am afraid it falls into the category of things going wrong because of the prosecution or the judge—or both. It fell fairly and squarely into that category. The noble and learned Lord the Attorney-General is making detailed points about the submissions of the noble Lord, Lord Thomas of Gresford, and I understand what he is getting at, but he is not grappling with the key point, which is whether it would be better to get rid of the jury.

My Lords, that is exactly my point. Having said that I do not, with respect, believe that the amendment of the noble Lord, Lord Thomas of Gresford, adds anything to the existing powers, my second point is that it does not solve the problem. You do not solve the problem of a small number of serious and complex fraud cases by cutting down the material the prosecution can put forward. This risks not presenting the full case to the jury. Much of the opposition to Section 43 rests on the principle that there is an inalienable right to trial by jury. The Government are committed to retaining jury trial in almost all Crown Court cases.

The noble and learned Lord, Lord Ackner, made an important point about the confidence that certain parts of our community have in juries. I do not disagree with him about that, but they are not, I think, the people we are concerned with in this small number of serious complex fraud cases. The reality is that the overwhelming majority of criminal cases in this country are dealt with, perfectly ably, in a magistrates' court, either by lay justices or by professional judges without any jury present. I have some difficulty, in this context, in understanding the objection to judge-alone trial. I do not understand why the opponents in this category of case have so little faith in our judiciary. Single judges already make momentous decisions in civil cases; they are quite capable of making decisions about the guilt or innocence of defendants.

My Lords, I am most grateful to the noble and learned Lord. I do not want to keep jumping up, but I am not sure whether the noble and learned Lord the Attorney-General has answered my noble friend on whether we are to have primary legislation before there is any attempt to do away with the jury in any part of serious fraud cases. My understanding, before this debate, was that what my noble friend Lord Kingsland said was indeed what was agreed regarding the jury. Therefore, there is an awful lot to be said in answer to the points that the noble and learned Lord the Attorney-General is putting forward. There are very real points to be made, but I assume that they will be made in future primary legislation, and not this afternoon.

My Lords, in a sense the noble and learned Lord, Lord Lyell of Markyate, is right. I shall come in a moment to what the Government are going to do. Having told the Opposition, who have brought the question of jury trial into the Fraud Bill, that I want to separate the two issues and that the Government intend to bring forward a stand-alone Bill to deal with those issues, I had not anticipated that we would have a debate this afternoon. But, entirely properly, the noble Lord, Lord Thomas, tabled an amendment and spoke to it in spirited terms, and other noble Lords contributed to the debate. Therefore, it is only right that I should say what the Government's position is, particularly as the noble and learned Lord and the noble Lord, Lord Kingsland, have asked me to reconsider.

Parliament has already recognised that in certain cases the right to jury trial can be overridden by other considerations. Part 7 of the Criminal Justice Act 2003 contains—in addition to Section 43—provision for trial by judge alone in jury tampering cases. That is an exceptional case, but Parliament believed that it was right to take that step. We believe that it is very important that the criminal justice system is able properly to deal with white-collar crime as it can deal with blue-collar crime. We still believe that Section 43 is an important step in that direction. It would bring to an end the problem that in a handful of very complex fraud trials much of the evidence cannot even be put before the jury, and it would spare citizens the intolerable burden of sitting as jurors in such cases. It was not proposed lightly. This debate has been going on for 20 years. The fraud trials committee presided over by Lord Roskill argued as long ago as 1986 that trial by jury was unsatisfactory in serious fraud cases. There was a public consultation in 1998 which supported by two to one replacing jury trial in serious fraud cases. The same line was taken by Lord Justice Auld in his independent review in 2001.

We demonstrated our willingness to consider modifications to the scheme provided for in Section 43 by entering with good faith into discussions with opposition parties. It is clear that there is no immediate prospect of those discussions bearing fruit and leading to a compromise position which delivers the necessary improvements to the efficacy of fraud trials. In those circumstances, it cannot be right to delay this modest but desirable Bill any longer. The Government, while remaining committed to the policy contained in Section 43, have taken the view that we need to separate this issue from the passage of the Fraud Bill. We therefore propose to bring forward fresh primary legislation to give effect to that policy as soon as parliamentary time allows rather than bringing forward an order giving effect to Section 43. No doubt when that Bill comes before the House, all the points that have been raised today and all the other points will be argued and debated. I have only responded a little in kind to the points that have been made. As it stands, the only amendment before the House is that of the noble Lord, Lord Thomas, which I believe in any event he will not press to a Division. I invite him to withdraw it.

My Lords, before the noble and learned Lord sits down, I had understood, until the latter part of his speech, that his main objection to the existence of juries in complex fraud trials was the consequence for their existence of the length of those trials; in other words, if we remove juries, trials will be shorter. But towards the end of the noble and learned Lord's speech, he seemed to indicate a different motive. He seemed to suggest that evidence could be brought before a single judge which could not be brought before a jury; in other words, evidence that would be admissible before a single judge would be inadmissible before a jury—I am interpreting what the noble and learned Lord said and I want to be clear about it—and the consequence of that would be a greater conviction rate in fraud trials.

My Lords, I certainly was not suggesting any difference in the admissibility of evidence. The point that I have made is not new at all. I will illustrate it via the Maxwell prosecution, to which I made reference before. The trial judge then, who is in fact the present Lord Chief Justice, said:

"The prosecution and most of the defence are agreed that, were it practicable, all the counts should be the subject matter of a single trial. All are agreed that the length and complexity of such a trial would far outstrip the capacity of any jury".

The result was that he then split the case into smaller portions so that each could go before a jury. However, following acquittals in the first trial, another judge, Mr Justice Buckley, who was due to hear the second trial, stayed the proceedings on the ground of abuse of process. The end result was that it was not possible to put all the evidence before a single trial—it was put forward in smaller parts—while the rest was not tried either.

My Lords, if I may intervene before the noble and learned Lord sits down, he will not be surprised to learn that I know a good deal about that case and understand where he is coming from. Yet the matter will be the subject of serious debate and I might ask to see him privately, since there are some aspects which might be better not debated. It raises serious questions to which there are serious answers.

My Lords, I was responding to the noble Lord, Lord Kingsland.

My Lords, before the noble Lord speaks again, I remind him that we are on Report.

That is true, my Lords; on the other hand, a new factor has been introduced by a statement of the Home Secretary yesterday, which throws an entirely different light on the nature of the Bill and requires us to consider a totally fresh matter, new in this debate—that is, perhaps, why there have been an unusually large number of interventions on Report. I apologise for their number, but submit that they have been necessary, for the reasons given.

I make one further short observation to the noble and learned Lord, in the hope of encouraging a response. The Attorney-General's response to my last intervention clarifies something which had been a mystery to me ever since the seminar that he held in January 2005. In that seminar, the noble and learned Lord, Lord Phillips of Worth Matravers, said that he thought that there might be circumstances in which trial by a single judge in complex fraud cases would be desirable, but that the noble and learned Lord the Attorney-General should be under no illusions about shortening trials by that means. If the Lord Chief Justice—as the noble and learned Lord, Lord Phillips of Worth Matravers, is now—is right about that, a new Bill in another place, whatever else its consequences might be, will not cut the cost of fraud trials.

My Lords, I thought that I had already sat down, so I invite the noble Lord, Lord Thomas, to withdraw his amendment. I do not agree with the noble Lord, Lord Kingsland, but we will come back to the matter when the new Bill arrives in your Lordships' House.

My Lords, I am grateful to all your Lordships who have spoken in this debate. I can tell the noble and learned Lord, Lord McCluskey, that I recall there being a brass plaque in the second assize court of the old Stafford assizes which commemorated the longest trial in England up to that date. That was 17 days, which slightly beats the record of 18 days to which he referred.

The noble and learned Lord the Attorney-General takes issue with me on a number of points. First, my amendment was set down at the beginning of last week, but on Friday I learnt from him that there was no intention of seeking to proceed with the orders under Section 43. It seems to me that I am entitled to put this amendment forward and to have it debated as it has been. I have delayed the passage of this Bill by one hour in so doing.

The second issue that the noble and learned Lord mentioned is that there is nothing new in the amendment. When the Criminal Procedure Rules that are now in place were formulated following the Courts Act 2003, they were not novel. They sought to put together the best practice, so that the best practice would be available for all sorts of Crown trials. In putting forward the amendment, I am seeking to demonstrate best practice in fraud trials. What framework is best suited for complex fraud cases? What is the best framework that we can employ to prevent the length and the expense of fraud trials, which have not been the best part of the criminal justice process over the past few years?

There are novel points in the amendment—for example, giving statutory force to the protocol of the Lord Chief Justice. There is a lot to be said for the protocol. It is flexible. There is also a lot to be said for having behind the protocol a steady, firm framework, from which judges who are trying these cases can derive the way in which they propose to manage their cases.

There are also references to the way in which a jury operates. Questioning and the ability to retire to consider documents have not been tried, so far as I know, in this country. Electronic presentation of evidence does occur. Oddly, no one has got on to the limitation of prolix cross-examination. That is important and should have statutory backing so that the judge can prevent counsel from going on day after day. I hope that your Lordships appreciate that I am seeking to produce a cost-effective and justice-effective system. I am doing so from experience. I do not say that the amendment is perfect; I do not say that it is all new. But it is to my mind a better way of going about things than abolishing the principle—and it is a principle—that a person should be tried by his peers, whether in a complex fraud case or whatever. The jury principle is fundamental to the justice system of this country and, as the noble and learned Lord, Lord Ackner, said, it is a system that commands the respect of all members of society.

As the noble and learned Lord has indicated, I do not propose to press the amendment at this stage. I ask him to think about it before Third Reading and I also ask him to consider the position if he brings forward a fresh Bill. I suggest that there should be a delay to allow the protocol to operate and to see how it works in practice before any primary legislation to abolish juries is brought before us again. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 15 [Commencement and extent]:

[Amendments Nos. 5 and 6 not moved.]

Schedule 1 [Minor and consequential amendments]:

[Amendments Nos. 7 to 10 not moved.]

Schedule 2 [Transitional provisions and savings]:

[Amendments Nos. 11 to 14 not moved.]

Schedule 3 [Repeals and revocations]:

[Amendments Nos. 15 and 16 not moved.]