Simon
Hughes: The debate could be extended, but without putting
words into his mouth what my hon. Friend implies is that we would,
objectively or rationally, have to take a different view if we had all
seen a report written by the Serious Fraud Office saying that since the
experience of the jubilee line case and Her Majesty’s
inspectors’ report, and since the Lord Chief Justice’s
protocol, and the experience of recent trials, then in the light of all
those experiences it was still of the view that the new procedures were
not delivering the outcomes that everybody has sought. If that came in
the annual report of the Serious Fraud Office, then we would all have
to take notice and probably say, “We’ll give it a bit
more time, to see if they bed down a little longer”. We would be
arguing for time. However, that is absolutely not the case, and the
last of these cases saw a conviction only in June 2005.
To do the Solicitor-General
credit and to be fair, I will observe that I have not gone into similar
detail on the last of the three cases that he cited—the Global
Wildlife Trust—for the simple reason that it was not as easy to
find out the details from the same place. So, of course, I shall wait
to hear from the Minister. However, the Solicitor-General conceded that
it was not that the prosecution was not successful—the
implication was that it was successful—but that the size of the
case was limited. So we return to the argument of whether the full
criminality was exposed to the
court. 5.30
pm
Joan
Ryan: To help the hon. Gentleman, he might like to know
that in the case that he could not find—the third one on the
Global Wildlife Trust—the severance of the indictment meant that
one defendant was not tried in the first and, so far, only trial, and
that it is uncertain when, if ever, the second trial will take place. I
think that that is relevant to his remarks—one of the trials did
not reach a satisfactory conclusion, in the interests of
justice.
Simon
Hughes: My wise hon. Friend the Member for Somerton and
Frome, one of the omnipresent three wise men, said that it is not
surprising that we could not find the information as the last trial has
not happened yet, which is, of course, true. I would not dare to
contest that. The
serious point is that we could make a judgment only if a trial went
ahead. However, in my experience, from my more limited number of years
at the Bar, prosecuting and defending, there is a severance of
many criminal cases. One of the first cases that I prosecuted for Thames
Valley police was for affray on Blackbird Leys estate in Oxford, which
occasionally features in debates on criminal justice in this place.
Lots of people participated in the case and in the end there were two
trials because it was easier for case and jury management. They were
related to the same offence, but none the less that was the
decision. That is quite
common in all sorts of cases. We look at how we can best manage the
case and consider things such as the number of defendants, bundles of
papers and the length of time. That is not unique to fraud cases and it
is not a sign of weakness. Of course, we would not get a whole picture
of life on the Blackbird Leys estate over 24 hours if a trial was split
into two, nor the whole story of a company and its activities over a
lifetime of 10 years, but that does not prevent justice from being
done. The question is whether justice is done.
My proposition
is simple: it is neither timely nor reasonable to implement the Bill.
The Minister made a procedural point and I shall end with a substantive
one. She told us not to worry because two timetable triggers remain and
that if the measures become law two months after the passage of the
Act, it is all right because a commencement order would yet to be laid.
However, my hon. Friend and I have spotted the flaw. The commencement
order would not require the assent of both Houses of Parliament by
affirmative resolution. So that is not a sufficient protection.
Although the Minister might delay for a day, a week, a month or even a
year before the introduction of the commencement order by the
Attorney-General, I am afraid that we saw through that claim.
Finally, on the four strand
approach, there is a consensus that three of them are perfectly
acceptable. The fourth would change a fundamental element of British
criminal justice. We should not change a system that has the confidence
of the people and delivers a very high success rate—we should
not even consider it, unless everything else has been tried, which we
have not yet done. Even if we had, some of us would still need
persuading. So we are certainly not
persuaded. Question
put, That the amendment be
made:— The
Committee divided: Ayes 7, Noes
9.
Division
No.
3] Question
accordingly negatived.
Motion made and question put,
That the clause stand part of the Bill:—
The
Committee divided: Ayes 9, Noes
7.
Division
No.
4] Question
accordingly agreed to.
Clause 4 ordered to stand
part of the Bill.
New Clause
1Application
by defendants for certain fraud cases to be conducted without a
jury ‘In
section 43(2) of the Criminal Justice Act 2003 (c. 44), after
“prosecution”, insert “, the defendant, or any of
the defendants in cases where there is more than one
defendant,”.’.—[Mr.
Hogg] Brought
up, and read the First
time.
Mr.
Hogg: I beg to move, That the clause be read a Second
time. The object of
the new clause is to enable the defendant, or a defendant if there be
more than one, to make an application for a trial without a jury. At
the moment, as the Committee knows, an application for a judge-alone
trial under section 43 can be made only by the prosecution. That raises
the question: why should a defendant not be able to make such an
application? Itis my recollection that Lord Justice Auld, in
his recommendations, contemplated that a defendant should be able to
make an application. What I seek to do, therefore, if we must go down
this road, is to ensure parity between the prosecution and the
defendant.
The question
that we need to address is whether there are circumstances in which a
defendant might wish to have a judge-alone trial. The answer is yes; I
can contemplate at least three sets of circumstances in which that
might happen. The first, which will occur increasingly often thanks to
changes in the legal aid rules, will occur when defendants pay for
their own legal representation. A defendant might well conclude that it
would be quicker to hold a trial without a jury. If it is quicker, and
he is paying for his own representation, it will be cheaper for him.
That might be the sort of situation in which a defendant would wish to
have a judge-alone trial. There are parallels in cases of libel, in
which defendants can elect judge-alone trials.
The second circumstance that
might arise is that in which a defendant might conclude that he is
likely to get a more favourable hearing from a judge. I think that that
would be a fairly exceptional situation, but I can think of it arising
in some circumstances. A defendant may be of a class that would make
him think that he would get a less sympathetic hearing from a jury than
from a judge. Let us be honest about this: if one was a professional,
middle-class person and an alleged white-collar fraudster, one might
feel that one would get a thoroughly unsympathetic hearing from a jury.
That has been so in some libel cases, in which defendants have come to
that conclusion. One could ask oneself whether the same is not true of
politicians. We are said to be one of the least popular groups of
individuals in the land, which may well be true. If I were foolish
enough to start a libel action, I would much rather have my case tried
before a judge alone than before a jury and I can contemplate
situations in which, if I were tried for a serious fraud case, the same
would apply, simply because we are the kind of people that we
are. There is a
different situation that is equally relevant, which depends on the
nature of the offence. Let us say that a defendant is charged with
milking pension schemes. We know how sensitive the public is about
pensions schemes, and rightly so. A defendant might come to the view
that such charges would get an unsympathetic hearing from a jury. Let
us consider Farepak: I am not suggesting that any fraud has been
committed, but for the purpose of illustrating the argument, let us
assume that there was an allegation of fraud associated with Farepak. I
can very well see that a defendant who was charged with that kind of
offence might think that he would get a pretty rough ride from a jury.
There are cases in which a defendant might choose a judge-alone trial,
because he reckoned that he would get a rough ride from a
jury. The third class
of cases is related to the first, but nevertheless stands alone. I can
contemplate a situation in which a defendant might conclude that the
complexity of a case was so great that it was best dealt with by a
judge, on the basis that the jury would not properly understand it and
would not return a safe verdict. Let us consider cases of long-term
fraud involving lots of people from abroad. Such cases would involve a
mass of documents, much of which would have to be translated from
Arabic, for example, and the original text of which would not be
comprehensible. Furthermore, and more damagingly from the
defendant’s point of view, most of the witnesses would speak in
Arabic and would have to have their evidence translated by an
interpreter. I have done a number of cases in which interpretation was
essential and I can say that one rather loses the thread of the
evidence when it comes through an interpreter. If there are a lot of
witnesses whose evidence is being interpreted, there is a real danger
of losing the plot, however good the interpreter may be—many of
them are quite good in this context. In those circumstances, I can
imagine a defendant saying, “This is a jolly difficult case
because of the special reasons that I have advised, and I would be
happier if my case were determined by a judge
alone.” I am
against this Bill and I hope it fails, but now that we are here we have
to try to improve the beastly thing if we can. It is difficult to see
an argument of principle for the defendant not being in the same
position asthe Crown. It was the view of Lord Justice Auld
that the defendant should be in that position and that is the proper
way forward. I therefore commend new clause 1 to the
Committee.
5.45
pm
Mr.
Heath: I listened carefully to the right
hon. and learned Gentleman, and I found his arguments persuasive to an
extent. I am inclined to support his
views. On equity, if
there is to be a trial in which the forces on either side are equal
under the law, it must be right in principle that the application for a
trial without jury should be open to both the prosecution and the
defence. I share the right hon. and learned Gentleman’s view on
circumstances in which the defence might consider it in the interests
of the accused to go to a judge-only trial.
He mentioned the complexity of a
case, but the crucial issue is the complexity of the defence. Much of
our discussion has been to do with whether the complexity of the
prosecution case is understood by a court, but there are instances in
which the complexity of the defence in a fraud trial will raise the
question whether the jury can understand it fully. My view is that, if
both the defence and the prosecution do their work properly, that will
not be an issue. However, if there is not a requirement for a jury to
be in place, it will be perfectly proper for the defence to argue to a
judge that the complexity of the defence is such that it should be
heard before a judge only.
That will be particularly true
in cases on the cusp of sharp practice and dishonest behaviour in which
the defence argues that the defendant’s behaviour was
reprehensible in the view of the common man—and therefore of the
jury—and not sound business practice, but was not fraud because
it was not dishonest. At that margin, a defendant might feel better
able to explain their position to a judge than to a
jury. Nothing that I
say should be taken as an expression of a view contrary to that which I
have expressed throughout progress of this Bill and preceding Bills. I
believe that the jury is an essential part of the process, but I can
conceive of a position whereby the defence would want a judge-only
trial. My last point
returns to principles. I have mentioned the principle of equity, but
there is a further principle. As my hon. Friend the Member for North
Southwark and Bermondsey said when speaking to the previous amendment,
the Solicitor-General, in presenting the case for the Bill on Second
Reading and in Committee, has come perilously close to saying that one
of its purposes is to secure more convictions, because more people will
be found guilty by a judge than by a judge and jury. Considering that
one purpose of it is to replace the finding of fact by a jury with the
finding of fact by a judge on the basis of the same evidence, that is a
worrying principle on which to work.
That concern could be dispelled
at a stroke if the Government were to accept the new clause, which
would make it clear that not only the prosecution but the defence could
expect the interests of justice to be best served by a court without a
jury. Nothing could better exemplify that than a clear and explicit
statement that the Bill is not purely a device to secure more
convictions but is intended to serve the best interests of justice. For
all those reasons, I shall be interested to hear the
Solicitor-General’s response to the right hon. and learned
Gentleman, who made an interesting point.
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