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Session 2005 - 06 Publications on the internet Standing Committee Debates Fraud Bill [Lords] |
Fraud Bill [Lords] | ||
The Committee consisted of the following Members:Mr. G Clarke, Committee
Clerk † attended the
Committee Standing Committee BThursday 22 June 2006[Mr. Martyn Jones in the Chair]Fraud Bill [Lords]New Clause 1Repeal
of section 43 of the Criminal Justice Act
2003 ‘Section 43 of the
Criminal Justice Act 2003 (c. 44) is repealed.'.—[Mr.
Heath.] 9
am Brought up,
and read the First
time.
The
Chairman: With this it will be convenient to discuss
amendment No. 17, in schedule 3, page 16,line 45, at end
insert—
Mr.
Heath: I welcome you to the Committee, Mr. Jones. I hope
that our proceedings will be relatively short, but we shall
see. New clause 1
would repeal section 43 of Criminal Justice Act 2003, whose purport is
to allow non-jury trials in fraud cases, so it is entirely relevant to
our discussions. Let me say from the outset, however, that I do not
intend to press it to a Division, and my purpose in putting it on the
amendment paper is simply to set out clearly our position on section 43
and allow the Solicitor-General to repeat the assurances that were
given in another place about the Government’s intentions. That
is a sensible thing to do and simply makes the position
clear. There has been
a lot of discussion about section 43 since the passing of the 2003 Act
and there have been what we might describe as misunderstandings along
the way about various party’s intentions and the degree of
consultation inherent in taking such issues forward. I shall not
rehearse those arguments again today, but simply say that the Liberal
Democrats are utterly unpersuaded of the need to proceed with
implementation of the section 43.
If the Bill is enacted, the
measures in it will go a long way towards simplifying and clarifying
the laws on fraud, and that is indeed the intention. In so doing, the
Bill will, I hope, assist with the presentation and management of fraud
cases and at least partially remove whatever pressure there is on trial
juries. Juries are an important part of the justice system, and
although we accept that some trials take place without them, we are
unpersuaded that cases involving the serious crime of fraud should be
included. In a perfect world, therefore, section 43 would be
repealed.
Of course we accept the
assurances given by the Attorney-General in another place, where he
made it plain that the Government intended not to use section 43, but
that if they did proceed with changes to the arrangements for jury
trials in fraud cases, they would do so through primary legislation. Of
course, I accept those assurances and I am grateful for them. Given
that they are in place, however, it could be argued that there is no
need for section 43 and that repealing it would make no difference.
Equally, if section 43 is not to be used, there is no mischief in it,
which is why I do not intend to proceed to a Division. I simply ask the
Solicitor-General to repeat the assurance about the Government’s
intentions. If the
Government have formed the view that there may be a need to proceed
through primary legislation, I invite the Solicitor-General to consider
that there should be time for the Bill, if enacted, to take effect and
for some assessment to be made of its impact on the duration of trials
and the prevalence or otherwise of failed trials under the new
offences. It would be absurd to discard a basic building block of
English justice without that objective assessment or evidence to
suggest that the changes would have a beneficial effect. That is the
position of Liberal Democrat Members, and it may well be the position
elsewhere on the Opposition Benches. I invite the Solicitor-General to
make any comments that he feels appropriate about the new
clause.
Mr.
Dominic Grieve (Beaconsfield) (Con): I am grateful to the
hon. Member for Somerton and Frome (Mr. Heath) for bringing the new
clause forward. He will know that his views on the subject are
identical to mine and my party’s. We sought to resist section 43
of the Criminal Justice Act 2003 when it was introduced. There was a
stand-off between the Lords and the Commons and its eventual
introduction was accompanied by a double-lock mechanism that required a
resolution of both Houses of Parliament—which, it became
apparent, the Government were unable to secure.
I make the position quite
clear: I do not think that the Government, in seeking to put that
provision in the Criminal Justice Act, were attempting a ruthless
undermining of trial by jury. However, I happen to believe that they
were profoundly mistaken. Jury trial is a very good system, and I
believe that it is possible to have jury trial in long and complex
fraud cases. Indeed, from the few fraud cases that I have done, my
experience is that the jury appear to have absolutely no difficulty
understanding the key elements of the offence or the allegations being
made. As I mentioned earlier in our proceedings, the basic problem that
emerged in virtually every case in which I was involved was that the
case had been badly presented and the indictment poorly drafted. Those
cases tended to fail, quite often at half-time after a submission of no
case to answer. Sometimes—as with the case in which my hon. and
learned Friend the Member for Torridge and West Devon (Mr. Cox) was
involved—cases ran into the sands because the case management
was extremely unsatisfactory. That has nothing whatever to do with the
jury. If the
Government wish to return to the topic in future, they would be well
advised, as the hon. Member
for Somerton and Frome said, to allow for a little delay to see how the
new Fraud Act works. I have some confidence—clearly, so, too
does the Solicitor-General, as he is presenting the Bill to the
House—that this Fraud Bill has the potential to make the
prosecution of fraud easier. Certainly, in terms of the problem of
comprehensibility to a jury, this Bill, as it stands, can only be an
improvement. I hope that the Government do not, as a result, run off
and hastily introduce new primary legislation—that is what they
say they want to do—to implement section 43 in some new or
variant form. Of course, if they do that, we will listen carefully to
their proposals, and if they have any merit, we will give them careful
consideration. In the
course of the passage of this Bill through the other place, I was
pleased to learn that the Government were prepared to give an assurance
that section 43 would never be used to implement restrictions on trial
by jury in long fraud cases. However, the suggestion that there might
even be primary legislation in the next Session of Parliament clearly
raises the possibility of yet another serious difference of view
occurring in this House and, I suspect, the other place on the subject.
I make this plea to the Solicitor-General: if the Government’s
intention is to proceed in the next Session, perhaps they should delay
it a year and just see how the new fraud provisions work. It might be
possible to provide enough reassurance to the
Solicitor-General—and, I dare say, the Attorney-General, who
seems particularly exercised about the issue—that a change to
the right to jury trial is not needed.
Although I welcome the spirit
of the new clause, I certainly shall not press it to the vote; that
would appear churlish, in view of the assurances given by the
Government in the other place. However, I am grateful for the
opportunity that this Committee has had to touch on the subject, as now
the Government know where we stand on it. Perhaps we can also have a
short response from the Solicitor-General, telling us how the
Government’s thinking on the subject is
developing.
The
Solicitor-General (Mr. Mike O'Brien): On Report in
the other place, my noble and learned Friend the Attorney-General,
said: “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.”—[Official Report, House
of Lords, 14 March 2006; Vol. 679, c.
1130.] That, I hope, gives
Opposition Members the reassurance that they need that section 43 will
be dealt with in primary legislation, rather than by means of an order.
That, at least, is the way in which we propose to
go. I shall not give a
long rehearsal of the arguments on non-jury trials, but there were
29,000 jury trials last year. If section 43 had been implemented, there
might have been 29,000 less half a dozen or perhaps 20, and most of
those non-jury trials would have been very long fraud trials. Between
2002 and 2004, there were 19 fraud trials lasting longer than six
months; six lasted more than a year. We are primarily talking about
long fraud trials dealing with very complex issues. In a
number of fraud trials, judges expressed concern. For example, in the
Blue Arrow case, Justice McKinnon, the trial judge,
said: “No jury
should be asked to cope with what this jury have had to
endure.” We are
concerned that justice should be done in fraud cases. We broadly
support juries dealing with the vast majority of fraud cases, never
mind general cases of criminal culpability. In 2003, of the 2,978
people tried for fraud, 2,258 were found guilty, 1,879 of whom pleaded
guilty. The vast majority of those cases would still be tried by a
jury, even after implementation of section 43—although,
obviously, in the case of a guilty plea, a jury would be unnecessary,
in terms of finding guilt. That is our broader position.
I appreciate that both the hon.
Gentlemen who have spoken say that they are speaking to the new clause
in order to hear a rehearsal of the Government’s position in
this place, which is a fair and proper thing to do. However, with the
reassurance that I have given, and having repeated the words of my
noble and learned Friend the Attorney-General, I hope that the hon.
Member for Somerton and Frome will feel able to withdraw the
motion.
Mr.
Heath: I thank the Solicitor-General for what he said, and
we are grateful for it, although it was entirely expected, because it
follows on from what the Attorney-General said in another
place. I could dispute
parts of what the Solicitor-General said. The fact that a case was
unendurable for a jury may not owe anything to the difficulty of
understanding the evidence or the pressures put on the jury, but may
simply be because the case was managed in such a way that absurd time
pressures were put on jury members, in terms of the trial’s
duration. I know that the Government have been working on the improved
management of complex cases. We must wait and see whether
that—and, indeed, this Bill—has the desired effect; I
hope that the Bill will simplify indictments and legal arguments and
reduce the length of time needed.
On Second Reading, I juxtaposed
a British trial with an American trial, although I freely admit that
the British one was not a fraud trial. It was the Bank of Credit and
Commerce International
litigation.
9.15
am The fact that
the trial took two years and that the two opening speeches alone took
200 days of court time is a disgrace to the operation of our legal
system and our courts. Possibly the biggest fraud case of modern
times—the Enron case, which was heard by a Texan court in
Houston before a jury—was completely finished in 15 weeks. That
suggests that management and having a firm control of the presentation
of cases are key issues, and that the ability or otherwise of a jury to
cope with the complexity of fraud trials is not. Indeed, there is
plenty of qualitative evidence that that is the
case.
Mr.
Geoffrey Cox (Torridge and West Devon) (Con): Merely to
reinforce what the hon. Gentleman is saying, with every word of which I
agree, in the Jubilee line case, which the Government have used as
evidence of
the need for change, the jury displayed astonishing diligence and
attentiveness to its duty. It kept up constant attention, with a series
of pertinent questions, and at no stage, until the trial eventually
drifted into the sands for entirely other reasons, gave any indication
of wanting to do anything other than reach a conclusion. The hon.
Gentleman’s words are exactly right and felicitous—the
problem is one of
management. I am
engaged in another case—also a major fraud trial—in which
the Americans managed to bring the related defendants to trial by 2004.
The parallel proceedings, concerning exactly similar issues, will not
be brought to trial in this country until 2007. There is a clear and
instructive comparison to be drawn between the American and English
systems.
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