Mr.
Heath: On the basis of that response, I hope that my hon.
Friend the Member for North Southwark and Bermondsey will not withdraw
his amendment. It seemed to me that in setting out the
Government’s strategy, the Minister made it abundantly clear
that it is based on an ex cathedra statement that they will proceed
irrespective of the evidence and the effect of the other measures that
are being taken.
It has always
been suggested that the Bill is needed because of the complexity of the
cases in question and the strain that they put on juries. However, the
Minister said clearly that the fourth element of the
Government’s strategy—to proceed with the removal of
trial by jury—will be unaffected by the other measures being
taken. She said that even if the existing legislation, the changes to
procedural rules and the redefinition of the offence of fraud were
proved substantially to reduce the complexity of cases and the time
that they take, they would have no effect on the Government’s
intention to remove the jury from trials in complex fraud
cases.
I am left to
conclude that the Government’s intention lies in a vacuum and is
not based on any evidence of a requirement. It is certainly not based
on the view, which is held on these Benches and was displayed by some
Labour Members on Second Reading, although possibly not those in the
Committee, that jury trial is a good in itself. It is part of the
judicial system of England and Wales and should not be dispensed with
unless there are very strong arguments for doing so. Such arguments
have not been adduced by the Minister, who is impervious to any
rational explanation involving other measures that have been taken. I
hope that my hon. Friend will not withdraw his amendment and that we
shall have the opportunity to divide on it.
Simon
Hughes: Even if I had started to wobble, my hon. Friend
would have prevented me from going too far. I was not tempted to
wobble, because I have listened carefully to the Minister and the
Solicitor-General, as I did on Second Reading. I wish to deal with the
matter, because there is no point in failing to confront the issues put
forward by the
Government. There are
two up-front, objective reasons why the Government are still pushing
for this fourth strand in their set of measures. There is also one
unspoken reason, which I believe might be the motive behind the two
spoken reasons. The three strands that are not to do with trial by jury
are on case management, procedural changes and so on. They address, in
part, one of the Government’s two objectives, which is to get
rid of the burdensome nature of trial by jury. I understand that
argument. If you, Mr. Bercow, I, or anybody else were called
for jury service, as we are eligible to be, and found ourselves on a
case that was to last for six months, it would be
burdensome—more so for some people than others. I am not naive
about that. Some of the changes announced in the past two years are
specifically intended to address that point. Let me give the Government
the objective evidence—it was not concocted either by me or the
Solicitor-General.
5.15
pm We
had the report on the Jubilee line case. Quite rightly, the report,
produced by Her Majesty’s chief inspector of the Crown
Prosecution Service, a Government appointee, looked into why that case
went wrong.
Stephen
Hesford: Will the hon. Gentleman give
way?
Simon
Hughes: Bear with me.
I concede that the executive
summary of the chief inspector’s report
stated: “Seen
from the perspective of the jury, the trial was a quite intolerable
burden.” Clearly, the
inspector looking into the Jubilee line case said that it was
burdensome for the jury.
The hon. Member for Beaconsfield
quoted the evidence of jurors, which, unusually, was in the public
domain because the trial was discontinued. The inspector reported that
the trial was burdensome not because the jurors did not understand it
or because the issues were burdensome but, putting it bluntly, because
the trial went on for so long, in an uncontrolled way, and the judge
did not appear to have a full grip of the case. Gradually, things
started unwrapping.
There have been burdensome
cases.
Stephen
Hesford: I am obliged to the hon. Gentleman for giving
way. He was, I believe, in the Chamber on Second Reading; indeed, he
led for the Liberals. The Solicitor-General made it plain, time and
time again, that in persuading people that we need these measures, the
Jubilee line case was not relied on. It seems to me to be wrong for the
hon. Gentleman to waste the Committee’s time quoting a case on
which the Government did not rely, and which is not germane to
proceedings.
Simon
Hughes: If the hon. Gentleman will allow me, I had not
finished my point.
There have
been burdensome cases, but the Government have supported measures
introduced by the Lord Chief Justice to deal with that burdensome
risk. The protocol,
which is only a year and half old, in setting out the proposals,
states:
“Central to the Protocol
is its identification of a consensus that no trial should be permitted
to exceed three months or an outer limit of six months, save in
exceptional
circumstances.” Those are
not my words; they are Lord Woolf’s, and he elaborates on that
point.
One of the
things that has been done since the Jubilee line trial is the
introduction of a protocol that says, “We will have shorter
trials. This is the way to do it. In procedural terms, here is the way
in which you can have much shorter trials.” That is one of the
things that will lift the burden. In fact, the Government have argued
that the main element of the burden is the length of
trial.
Mr.
Hogg: One of the suggestions that the Lord Chief Justice
contemplates is that the indictment should only cover the central
material on which the Crown needs to rely, and that the concept of full
criminality should play no part in the
indictment.
Simon
Hughes: That is correct and the right hon. and learned
Gentleman made the point well. We have discussed in the debate and in
others why the “whole criminality” point is not valid. It
is not compatible with any other part of the criminal justice system,
nor is it necessary to secure justice. That is the issue.
I asked the Solicitor-General,
and he gave me a perfectly reasonable answer, to show us why we have a
continuing problem post the Jubilee line case. The case is relatively
old and has not been relied on. The Solicitor-General cited three cases
that he said gave rise to the problem being one that the three strands
are not sufficient to address, and that a fourth strand is required. He
said: “There is
a serious history of such proposals, and eminent judges have made
reports” but “Since
the passing of the Criminal Justice Act
2003” —so, since
the last time we looked at these
issues— “there has
been further evidence of the importance of introducing such a measure.
I referred to cases that had to be severed. In the Talbot Village Trust
case, completed in 2004, the trial judge had to order the prosecution
case to be reduced for management reasons. Again, in the Versailles
case of 2004, which involved Cushnie and others, the judge ordered
three counts against one of the defendants to be severed in the
interests of trial management.”—[Official Report,
29 November 2006;Vol. 453, c. 1132.]
He also mentioned a third case, that of
the Global Wildlife Trust.
Were those cases evidence of an
unsuccessful outcome? I was assisted by a young Mr.
McCracken—a lawyer of the future working in my office. It would
be a slight overstatement to say that his research required great
skill, because the availability of the web and the Serious Fraud Office
website enabled us to find a summary. With him looking up the cases for
me, I discovered the details. Neither case was a failure.
The press release concerning the
first, dated16 February 2004 and
entitled “Fraud
on charity hidden in £15 million building
contracts” said: “Three
construction industry professionals were convicted today at Winchester
Crown Court for defrauding the Talbot Village Trust in Dorset of
£3.5 million through manipulation of building contracts. The
fraud related to six contracts totalling £15 million and
involved invoicing for work not done and disguising inflated
professional fees in the
contracts.” I
accept that that case had gone on for a relatively long time; it had
started in the magistrates court in 2001. However, although two
defendants were acquitted, three were convicted. Unless the Minister is
going to say that a case that results in any acquittals is a
failure—not an argument that I hope anyone would make—the
serious punishments that were awarded for those offences prove that the
case did not, in fact, fail.
The other case was the
Versailles case concerning Carlton Cushnie, who is based in my
constituency. The Serious Fraud Office press release of 29 June 2005
was
entitled “The
Versailles case: Carlton Cushnie ordered to
pay” and
said: “Carlton
Ellington Cushnie was ordered today at Southwark Crown Court to pay
over £10 million by way of confiscation in relation to the
Versailles fraud. This
hearing arises from Cushnie's conviction on 25 May 2004, and sentencing
on 8 June 2004 when he received six years imprisonment and was
disqualified from acting as a company director for 10 years. The
sentence was handed down for conspiring to defraud private investors
who provided monies to Versailles Traders Limited and Trading Partners
Limited. The earliest Cushnie can be released from prison is 8 June
2007.” So
the two cases that were readily accessible on the SFO website were not
unsuccessful. Convictions and significant imprisonment were secured in
both, and one secured a huge financial penalty. There were two
acquittals in one of the cases, but it was possible to present to the
juries both the seriousness of the cases and the breadth of the
criminality involved. The juries—one in Winchester and one in
Southwark—reached guilty verdicts.
The
Solicitor-General: I shall not try to
make my point by way of intervention, and we shall perhaps have the
opportunity to deal with it later. I shall merely say that, in the case
of Talbot Village Trust, the judge ordered that the scope of the
prosecution case should be reduced for trial management reasons. In the
SFO’s opinion, that reduction made the case appear disjointed,
and undermined the prosecution case in a number of key areas, although
it was none the less successful. There is capability to succeed, but
the SFO was concerned about the way in which the case proceeded as a
result of the
decision. I am
conscious of your strictures, Mr. Bercow, so I shall not go
into detail on the Versailles case on intervention. In that case the
judge ordered one of the three counts against Cushnie to be severed in
the interests of trial management, and the SFO again felt that that did
not allow the jury to see the full
picture.
Simon
Hughes: This sort of exchange is
valuable. However, the whole history of both cases—the committal
from the magistrates court, the commencement of the trial and the
judges decision on trial handling—came
before the Lord Chief Justice’s direction of last year. Both
cases also came before the report of Her Majesty’s inspector
into the Jubilee line failures. My point is that we have learnt the
lessons from the system failures that led to long trials and burdensome
implications for jurors. We have not, however, learnt the lessons of
the past year and a half—since the beginning of the changes.
Those changes will reduce trial lengths substantially in nearly every
case, but without—in the view of the judges and the
SFO—prejudicing the generality of the case on guilt that is
presented to the jury.
Mr.
Grieve: The hon. Gentleman’s point is important. He
may join with me in inquiring about something on which the
Solicitor-General may be able to help us later. A six-year sentence is
a very long one by modern standards, particularly for fraud. If it is
being suggested that the level of criminality was not reflected in the
final outcome of the sentence, it would be interesting to know the view
of the Solicitor-General on the sort of sentence that the total
criminality ought to have attracted. I really wonder whether it would
in reality have been very much.
Simon
Hughes: Just one other point, although we could turn this
into a seminar on recent successes in SFO cases. I am conscious,
Mr. Bercow, that you will not allow us to do
so.
Mr.
Heath: It would be a useful
precedent.
Simon
Hughes: Yes, a useful extra seminar that we had not
anticipated. I will just pick up this point; in the Winchester case,
there was a unanimous verdict by the jury. So, that was not one of
those cases that struggled to get a verdict, and I share the concern of
the hon. Member for Beaconsfield that the evidence and argument do not
suggest that justice there was letting off those people lightly, since
they were not. That
leads to my last point. The unspoken reason motivating the Government
in part, which sort of slipped out on Second Reading, is that they
think convictions will go up if there is no jury. If that is in their
minds explicitly or implicitly, then it is a worrying thought. There
are a couple of obvious points to make if that was their
thought. We all want
to have criminals dealt with by the justice system, and to be convicted
when they commit offences. Serious criminals need to be convicted and
punished seriously. When you represent a constituency like mine, where
there is still a lot of poverty and some extreme affluence, so near to
the City of London, not a few people have come to see me over the years
saying, “Why is it that the heavy hand of the law comes down on
little people for small offences”—that is not my phrase,
but other people’s—“when the big crooks working in
the City or elsewhere are not being caught?”
So I am up for these
people being prosecuted, with the SFO doing its job properly, serious
investigation being pursued and people being brought to book and locked
up when they deserve it. However, if the suggestion is that we are not
getting enough guilty verdicts, the evidence does not support that and
the philosophy is fundamentally flawed.
Mr.
Heath: Another thing occurs to me in what my hon. Friend
was saying about these two cases that the Solicitor-General relies on
as evidence of the need for
change. For his proposition to be correct, then there must be an
assumption that the Lord Chief Justice would produce new rules of
procedure and new guidance for trials without a jury as opposed to
trials with a jury. The purpose of those new
rules—[ Interruption.] Well, the Solicitor-General is
looking puzzled, but otherwise the severance would be exactly the same
in a trial before a judge alone as with one before a jury. If that is
the case, it means that having got the length of complex trials down,
by using the Lord Chief Justice’s rules, the Government now
propose to increase the length of trials—and, therefore, their
cost and complexity—once the jury was safely out of the way.
Does my hon. Friend believe that is the Government’s
intention?
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