Mr. Robert Marshall-Andrews (Medway) (Lab): I shall endeavour to be brief. The last time that I said that at the beginning of a speech, they were the only words that I uttered before being stopped. I shall take a little longer on this occasion, although this awful Bill deserves short shrift.
The Bill is a serious attack on civil liberties, which have been our heritage for 800 years. It is unnecessary, unworkable and ill-conceived. If it is ever passed into law, it will almost certainly offend the European convention. It will lead to a two-tier system of white collar judges trying white collar criminals. It will involve huge delay in the trying of cases and massive extra expenditure, and it risks bringing the judicial system into disrepute. Apart from that, it is fine.
Mr. Richard Shepherd (Aldridge-Brownhills) (Con): I am not sure why the hon. and learned Gentleman says that the Bill will almost certainly fail before the European convention. Which other competencies in Europe have jury trial?
Mr. Marshall-Andrews: If the hon. Gentleman waits a moment, I shall deal with that as I develop my argument.
I shall start with a generality. The Bill does not stand on its own. From their inception in 1997, the Government have shown a clear aversion to the principle of jury trial. The Criminal Justice Act 2003 made it possible to bring past offences into any court to judge a defendant’s mala fides or mens rea. We can do it in this case—this Government have serious form when it comes to attacking jury trial.
As has been noted, those attacks began way back with the Criminal Justice (Mode of Trial) Bill. That was introduced in 1999, barely two years after the Government came to power. Effectively, it was an attempt to abolish the right to elect trial by jury, and there lies a bitter irony. The Home Secretary of the time, now the Leader of the House, told us that we had no need to fear as the provision would be applied only to minor, either-way offences. Serious fraud or crimes of violence would be left untouched, he said, but now the dog is being attacked from another end.
No doubt the Solicitor-General believes that he is speaking the truth when he states that the Government are not bent on the destruction of the jury trial system, but his assertions give us little confidence. Indeed, I can remember the then Home Secretary telling the House that the mode of trial Bill enjoyed the support of the Lord Chief Justice. In fact, it emphatically did not enjoy his support: subsequently, I discovered that the Lord Chief Justice had written to the Home Secretary four days before that statement was made to the House to say that he had grave reservations about the Bill and that he thought that it would lead to considerable injustice.

That causes one to have less than entire confidence in a Government who say that the judiciary are in favour of the Bill. I can tell the House that judges are profoundly against it. They have said repeatedly—in private, although many have spoken in public—that they consider the Bill to be unnecessary and unworkable.
Mr. Hogg: If one needs public evidence of that one need only look at the remarks made in the other place by former Law Lords.
Mr. Marshall-Andrews: I simply concur with that and, as they say in the Court of Appeal, have nothing to add.
This Bill is part of the syndrome of legislative hyperactive disorder in respect of crime and punishment that has gripped the Government ever since they came to power. The House may be interested in the statistics. In the whole of the 19th century, this House passed 34 Bills involving crime and punishment. In the first half of the 20th century, it passed 11. Since 1950, the House has passed 67 such Bills, 27 of them in the past 10 years.
That volume of legislation is not the result of our people becoming more wicked, venal or in need of correction than they were in earlier times. It stems from the fact that such legislation is perceived as a popular—or populist—mechanism for enlisting electoral support. The mechanism is always the same: the Government create a morbid and often false fear of crime, then purport to do something about it by removing one civil liberty or another.
Mr. Garnier: I could not agree more with the hon. and learned Gentleman. Does he agree that the Government’s cynicism is made worse by the amount of legislation that they pass but then fail to implement? In large part, the 2003 Act has already been repealed, much of it before it was implemented. Other parts of that Act have been implemented and repealed, and still others have yet to be implemented at all. Are not the Government guilty of legislation by headline?
Mr. Marshall-Andrews: There is much in what the hon. and learned Gentleman says. The Government’s approach has caused serious problems in the courts, given the uncertainty about which parts of the body of legislation are in force, when they came into force and how much is retrospective. However, I do not want to stray too far from the locus in quo, so I shall return to dealing with the indictment with which I began what is going to be a relatively short speech.
The Solicitor-General was quite right to correct me over a slip of the tongue that I made about the statistical basis of jury trials. Juries do not convict in 85 per cent. of cases but, under the jury system, 85 per cent. of serious fraud cases do result in conviction. That conviction rate is higher than for any other criminal activity. I can give chapter and verse for that statement, but we should not get involved in a barren argument about statistics. The plain fact is that juries understand serious fraud very well.
I should declare an interest, in that I have done many serious fraud cases in my time at the Bar. No one in my position has ever had the slightest doubt that juries understand such cases. The financial dealings are
sometimes complex, but there is almost never any doubt about whether a fraud has been committed, only about who did it. Juries are far and away better than anyone else at deciding that relatively simple matter at the end of a trial.
Do we have a problem recruiting juries? No, we do not. The panel of jurors is rather larger at the beginning, and the people who are selected are the ones who are comfortable with sitting for between, say, 12 to 26 weeks to deal with a case. Are they unrepresentative? No, they are not. It is true that we lose a number of people whose jobs preclude them from working on a jury over such a period if time. As a result, some classes of people—disabled people, women, those who have taken early retirement or are temporarily unemployed, for example—are slightly over represented, but are this, of all Governments, going to suggest that such juries are incapable of trying serious fraud cases or that their involvement is undesirable? The proportion of cases in which juries convict demonstrates that they are perfectly capable of coming to a decision.
In passing, I want to mention the Jubilee line case, which was cursed from the start by poor case management. Matters that should have been dealt with before a jury was ever empanelled were dealt with only afterwards. As a result, the trial became completely unmanageable and in the end collapsed. Reference has been made to the subsequent inquiry, and the resulting document is a luminous illustration of the seriousness and brilliance with which juries attach themselves to their work.
The jury in the Jubilee line case had nothing to do with the trial’s collapse. Indeed, it could well be said that it was an early example of trial by judge alone. The jury had hardly anything to do with it: the case was tried by the judge alone, and the result was a complete disaster. Our adversarial system is wholly incapable of dealing with trial by judge alone. To suggest, as the previous Home Secretary once did, that removing the jury creates an inquisitorial system is the precise equivalent of removing the wheels from a car and claiming that one has invented a boat. The system is incapable of dealing with a judge being the arbiter of fact.
I hope that the Solicitor-General will accept the line that I am about to toss to him and intervene to assist me. I want to ask a question about public interest immunity that I could not put to him while he was making his speech, as I did not want to delay progress in the debate. In the vast majority of serious cases there are important issues of public interest immunity, which our system deals with by means of the prosecution talking to the judge and deciding what evidence should be given to the defence, and what should not. The judge can make that decision because—and this has been confirmed by Europe—he is not the judge of fact. However, a judge who determines PII applications and is then a judge of fact will be in possession of material that he will share with the prosecution, but of which the defence will have no knowledge at all. In those circumstances a conviction would last for about 10 minutes in a European Court before it was overturned—
The Solicitor-General rose—

Mr. Marshall-Andrews: I pause so that the Solicitor-General can answer that interesting question, which perplexes the whole legal system.
The Solicitor-General: I am grateful to my hon. and learned Friend. I have three points to make to him. First, the Serious Fraud Office does not regard the use of PII certificates as a regular occurrence in such cases, but my hon. and learned Friend is right—it might happen on occasion, so it might be an issue sometimes. Secondly, in Northern Ireland, judges sit alone in the Diplock courts and regularly have to deal with PII and other issues. A second judge is involved; they deal with the issues adequately and there is no problem. Thirdly, my hon. and learned Friend is well aware that in most European countries juries do not deal with such cases. Single judges deal with them and they do not seem to have problems with the European Court of Human Rights, so I think that his point is a bad one.
Mr. Marshall-Andrews: I was hoping to have an answer, but unhappily I did not; or rather, it was an attempt at an answer but, as the Solicitor-General knows, it was entirely deficient. I shall take it piece by piece. PII happens in almost every serious fraud case that is tried—certainly in my experience—so that is the end of that argument.
The second argument is that a single judge can hear PII applications, but the European Court has already said that the only reason it endorses PII applications made to a single judge is because he is not the judge of fact. The minute he is a judge of fact, it will, ipso facto, offend before the European Court. For a secondary judge to sit alongside another judge dealing with PII applications would be reinventing the wheel, with one judge sitting as jury and the other as a judge. Furthermore, it is necessary that PII cases are kept permanently under review by the judge trying the case.
Finally, I do not want to give the Solicitor-General a long lecture on the inquisitorial system, the Napoleonic and other codes and how they differ from an adversarial system, because we would be here for a considerable time. However, the checks and safeguards in an inquisitorial system are wholly absent from our adversarial system, which relies on a jury to provide them.
The Solicitor-General: I am grateful to my hon. and learned Friend for giving way again. I pointed out that such issues have to be addressed in the Diplock courts in Northern Ireland, where they are dealt with adequately. A great train of cases has not been taken to Strasbourg for resolution; they have been dealt with adequately. My hon. and learned Friend argues that the issues need to be resolved sensibly, but my view is that they can be, and have been, resolved.
Mr. Marshall-Andrews: But with great respect, not in the example of the Diplock courts—an aberrant system of justice, which came about because of a terrorist threat that does not exist. If attacks on jury trial are to be regularly defended on the basis of courts in Ireland set up by Lord Diplock in answer to a terrorist threat, the Government are making a threadbare argument.

Mr. Hogg: Does the hon. and learned Gentleman agree that the problems he has been exploring relate to previous convictions and hearsay evidence, too? Since the 2003 Act, they have been used with much greater frequency. The judge has to rule as to the admissibility of previous convictions. At present, if he rules in favour of the defendant the information never goes before the jury, but in the circumstances contemplated by the Bill, he would have to put previous convictions out of his mind, which would not be very reassuring for the defendant.
Mr. Marshall-Andrews: I agree entirely. I have one more point to make about our judiciary.
One of the reasons why our judiciary is rightly regarded throughout the world as an exemplar and completely incorruptible is the existence of the jury system. There is no point whatever in anyone attempting to bribe or bully a criminal judge because between the judge and the individual stands the jury system, which has stood us in good stead for 800 years. I regularly visit Mother Russia to lecture on judicial independence, something which the Russians regard as we do the yeti or the abominable snowman: people have seen it—they believe that it exists—but nobody believes that it can be brought into being. I spend much time explaining that implicit in the concept of the independence and incorruptibility of judges is the jury system; it maintains judges’ fierce independence of Government or anyone else. To start attacking that system is to start attacking not fraud or fraudsters, but 800 years of British liberty.
Stephen Hesford: What about the 150 years of civil justice before a single judge? How does that run parallel, or at all sensibly, with what my hon. and learned Friend has just said?
Mr. Marshall-Andrews: I am sorry, but I do not entirely understand that intervention. Is the argument that we are dealing with the Judicature Acts—that in civil cases judges sit alone? If it is seriously argued in respect of the liberty of the subject that in criminal cases involving imprisonment and the removal of liberty we can move to a civil judicial system—[ Interruption.]
Mr. Deputy Speaker: Order.
Mr. Marshall-Andrews: Thank you, Mr. Deputy Speaker.
If the argument suggested by my hon. Friend the Member for Wirral, West (Stephen Hesford) is really being advanced as the exemplar for a criminal justice system, I have to say that it is threadbare.
The Solicitor-General: My hon. and learned Friend is being generous in giving way to me again. He seems to be arguing that judges would be corrupted by the proposed process, but my hon. Friend the Member for Wirral, West (Stephen Hesford) rightly pointed out that judges in our civil courts are dealing on a day-to-day basis with cases that involve vast amounts of money over which two parties are arguing. Our judges have not been corrupted by having to make decisions in such cases. The idea that as a result of the Bill our judges would suddenly become corruptible is facetious. My hon. and learned Friend cannot seriously be putting forward that argument. As he rightly says, our judges are known to be incorruptible; the Bill or any further legislation notwithstanding, our judges will continue to have that reputation.
Mr. Marshall-Andrews: With great respect, I have to point out that the Solicitor-General does not listen to what I say, if he suggests that I am saying that as the result of the Bill, we would have corrupt judges. I said that one of the reasons why criminal judges rightly, and uniquely, maintain a reputation for being incorruptible is the existence of the jury system. It has always been implicit in our law and legal learning that one of the advantages of a jury system is that it acts as a buffer between the citizen and the judge. That is one of the reasons why it has been possible to maintain over centuries—not weeks or months—a reputation for a rigorously and ruthlessly incorruptible judiciary. I hope that the Solicitor-General now understands the point I was making. It is not a new point; it has been made for centuries and is one of the reasons for the existence of jury trial.
May I now deal with the erosion argument? The Solicitor-General has given me little confidence that the measure is not part of a general erosion. One of the reasons for that—to pick up a point made by the hon. Member for Beaconsfield (Mr. Grieve)—is the repetition of the fact that nothing implicit in fraud or juries makes the Bill necessary. What makes it necessary, as has been repeated time and again, is the length of time that a trial will take. And as the hon. Gentleman points out, it is not simply fraud cases that take longer than the two weeks of jury trial. I suppose, but I do not have statistical evidence for it, that the average length of a murder case in the Old Bailey is six weeks. That is not because it is complex; it is because often there are several defendants to try. That is one reason why fraud cases take a considerable time—not because they are complex, but because often there are quite a few defendants to try. And if it takes 12 weeks to try six defendants, it is two weeks per defendant. That is why such cases last as long as they do.
If there is going to be an ex cathedra statement that juries as a matter of fact should not be put to the inconvenience of sitting for more than six weeks on any trial, we are into the borderland and the hinterland of very many other cases in addition to fraud cases. Ifthat is what is motivating the Government—and it is what the Solicitor-General says is motivating the Government—we are not simply on a slippery slope, we are on a glacial path towards the Government bringing forward legislation in respect of terrorism, in respect of long murder trials, and in respect of all trials anticipated to last for more than six weeks, all to be tried for three weeks by judge alone, with all the difficulties and problems that are implicit in that.
Ms Diane Abbott (Hackney, North and Stoke Newington) (Lab): Does my hon. and learned Friend accept that there are those of us who lack the legal expertise of some people in the Chamber, but who have a concern about the Bill precisely because of the precedent that it may set? It is being argued that there is
something unique about fraud, but as he has pointed out, the only unique thing that Ministers can point to is the length of the trial. I am worried that if the House concedes the Bill, we shall see Ministers coming back with further legislation, and large numbers of people who might never expect to be up on a charge of fraud may find themselves caught in the trammels of a system without the surety of a jury trial.
Mr. Marshall-Andrews: I am grateful to my hon. Friend. She puts the point very well. It is a fear that many have, and that fear is entirely justified on the basis of what we have heard as being the reason—or the apologia—for this piece of legislation.
Mr. Garnier: Of course, the Solicitor-General said it in terms. He said:
“We have no intention at this stage”.
It is not just, “We have no intention”; it is
“no intention at this stage”,
so we need to be very careful about the Government’s promises.
Mr. Marshall-Andrews: The hon. and learned Gentleman has picked up the minutiae that I missed, and I dare say it will be in Hansard and I dare say that the Solicitor-General will correct it—
The Solicitor-General: rose—
Mr. Marshall-Andrews: My hon. and learned Friend is going to correct it now.
The Solicitor-General: We have no plans. Will the hon. and learned Member for Harborough (Mr. Garnier) be happy with that?
Mr. Marshall-Andrews: Well, there we are.
Mr. Winnick: Bearing in mind my earlier intervention on the Solicitor-General, does my hon. and learned Friend accept that while some of us who are critical will vote for Second Reading—although others, such as himself, will not—we will do so on the clear understanding that we will not in future vote for any measure that would further undermine the jury system? I am sure that the Government have no illusions on that score.
Mr. Marshall-Andrews: I am grateful to my hon. Friend. I know that he has many concerns about civil liberties, and that the Bill is probably stretching his line almost to breaking point. For many of us it has passed breaking point, and that is not simply because it involves the hallowed principle of jury trial, but because, given the Government’s record and the way that they are presenting the Bill, there is absolutely no reason to suppose that there is a sticking point on serious fraud.
We have put in place, since 27 March 2005, a protocol that will undoubtedly shorten serious fraud cases very considerably indeed. It is a matter of great regret that the Government have not seen fit to wait and see what effect that protocol has before introducing this legislation. And I am sorry to say that the fact that they have not waited is yet another reason to believe that something doctrinaire lies behind this, rather than the particularities of the difficulties that are thrown up at present by jury trial.
I end on this note. We have a system that enjoys not only the confidence of this country, but the confidence and approbation of the entire world. We have, without a shadow of a doubt, the most revered criminal justice system in the world. It is held in far higher esteem, I am sorry to say, than the place in which we sit at the moment, and one of the reasons for that is that we are in the habit, unhappily, in the recent past of passing legislation of this sort.