Robert Marshall-Andrews

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Medway MP leads Labour backbench rebellion to retain Jury trial

Medway's MP Bob Marshall-Andrews yesterday, Monday 19 May, spoke out in The House of Commons' debate on the Government's Criminal Justice Bill. Mr Marshall-Andrews lead rebel backbench Labour MP's in their opposition to the Government's proposal to restrict the right to trial by jury. The rebellion lead to the Government's third lowest majority since it's election in 1997. The Government won the division by 299 votes to 227.

During his speech Mr Marshall-Andrews said, “These provisions represent - the most serious attack on the most fundamental of our civil liberties—jury trial.

He later added, “Frequently trials involve more than one defendant. In serious cases— whether or not jury tampering has occurred—there may be a Mr. Big, a Mr. Not so Big and a Mrs. somewhere in the middle. Mr. and Mrs. might be bringing up the end and two or three Mr's are the minnows who have played hardly any part at all. They are all, quite rightly, tried together, but what will happen if an application is made to the effect that public interest immunity applies to one of them? They will all be tainted. What will happen if one of them tampers with a jury? They will all lose their jury trial—every single one of them. What will happen if complexity is postulated in respect of only one defendant, Mr. Big? They will all lose their right to a jury trial.”

Below is the full transcript of Bob's speech,

19 May 2003: Column 758

Mr. Robert Marshall-Andrews (Medway): I am aware that many Members wish to speak, so I will be brief. I shall of course confine myself to clauses 37 and 38, and to amendments Nos. 2 and 3. These provisions represent, as we all know, the most serious attack on the most fundamental of our civil liberties—jury trial —since the previous most serious attack, which took place during the previous Parliament. Even in the short time available, it is impossible not to reflect on the exquisite irony before us. During consideration of mode of trial legislation, we were repeatedly told that our fears were groundless because the most serious offences would always be sacrosanct in terms of jury trial. Now, of course, we hear precisely the reverse. It is impossible not to draw the conclusion that the Government, having got their hands badly bitten twice on that occasion, are now applying themselves to the dog from the other end.

This issue is relevant to the entire question of the slippery slope. If these provisions go through, the Government will return to mode of trial. I listened very carefully to the Home Secretary talking about the wisdom of penitence, and that the Government have learned their lesson. I am sorry to say that I do not accept or believe a word of it. I also listened very carefully to the previous Home Secretary's speeches on mode of trial. If I were sitting as a recorder or Crown court judge, and if mitigation were being put forward and someone came before me and said, "Jack doesn't believe a word of what he said then and he's very sorry," I would not accept a word of it. The plain fact is that jury trial is a shibboleth to this Home Office—and, indeed, to this Government—and it is time that we recognised that fact.

I should declare an interest, in that I have prosecuted and defended serious fraud cases for many years, some of which were extremely serious. I like to think that I prosecute and defend such cases with equal vigour, and if I ever had the misfortune to prosecute the Home Secretary—for an offence unidentified at the moment—I hope that he would find that that was indeed so. I dislike losing cases when I am prosecuting as much as I dislike losing them when I am defending, so I am not a wet liberal in that regard.

Much has already been said, entirely justifiably, about the Government's motives and reasons, and I shall cut that discussion short, save in respect of the representative nature of juries. The truth is that we have cracked this problem. In the vast majority of serious fraud cases, we take a day or sometimes two. We never have panels of 700 jurors. Sometimes we have 100, and we always find juries that are comfortable with sitting for the time involved in serious fraud trials. The idea that they are not representative is a dream of the Government; it is wholly unsubstantiated by those who practise in the courts. There is no law or learning on this; there have been no studies—sociological, demographical or otherwise—to suggest that these juries are unrepresentative.

The universal view of those who practise is that these juries are in fact more representative than any others. They include, it is true, slightly more women than men, which is no bad thing. They include, it is true, slightly more disabled people who are unable to work, which is no bad thing. Those drawn from a pool of people who are not working at that time include the highly successful—no bad thing if one is dealing with serious fraud—and those who have the misfortune to be unemployed. Again, that is no bad thing. These supposedly unrepresentative people have no difficulty whatsoever in convicting in nearly 90 per cent. of the cases that they hear. This Government would not suggest for one moment that that was due to some feebleness of intellect.

Having dealt with the Government's case—that is the totality of it—I shall now move on to the offensive and state as a plain fact that the provision will not work and will be wholly unjust. I say that for two separate reasons—there are many others, but I shall focus on the two most important. First, judges sit as judges of law; juries sit as judges of fact. That is our system. We cannot simply remove the jury from our system and pretend that we have invented an inquisitorial system. As I have said before, it is the precise equivalent of removing the wheels from a car and pretending that a boat has been created. The jury is essential to the system, as are judges.

The whole question of public interest immunity applies. The Crown claims public interest immunity for evidence that it believes should not, in the public interest, be put before the defence. The evidence is put before the trial judge, and the trial judge decides. The system works extremely well. The judge might say that the defence can see certain evidence, but not other evidence: the jury will then, in common with the defence, be ignorant of that evidence. A judge cannot hear PII claims—hear evidence that is not privy to the defence—and then try a case of guilt or innocence. That offends every single canon of natural justice and is a manifest breach of the European convention.

The Government have advanced no argument—absolutely none—in favour of the position, only the postulation that there could be a second judge. I tell the House that that is impossible, because the nature of public interest immunity is that the judge has to keep the matter under review throughout the trial until it reaches a point at which the judge says that evidence that he hitherto decided should not be given to the defence, now should be given to it. The judge knows the case throughout the trial. Even supposing that having another judge were possible, what would happen in a PII case: it would have to start again with another judge, and then on it would go to another judge for another PII application. I repeat that that cannot work. What will happen in practice? Judges, asked if they would try a case on their own will end up asking the prosecution whether PII factors apply to that case. In money laundering cases, such factors always apply, and nearly always in cases of serious fraud. The legislation is a deeply flawed in that respect alone.

However, manifest injustice is evident in another respect. Frequently—or more often than not—trials involve more than one defendant. In serious cases— whether or not jury tampering has occurred—there may be a Mr. Big, a Mr. Not so Big and a Mrs. somewhere in the middle. Mr. and Mrs. might be bringing up the end and two or three Mr's are the minnows who have played hardly any part at all. They are all, quite rightly, tried together, but what will happen if an application is made to the effect that public interest immunity applies to one of them? They will all be tainted. What will happen if one of them tampers with a jury? They will all lose their jury trial—every single one of them. What will happen if complexity is postulated in respect of only one defendant, Mr. Big? They will all lose their right to a jury trial.

When I asked the then Minister, he confirmed that that would be the case, but said that it would be subject to an application to split the trial. So now we have two trials—the same trial once tried by a judge, and once tried by a jury. What will happen if two conflicting verdicts result: the jury says guilty, the judge not guilty? What will happen when it goes to the Court of Appeal? Absolutely none of those issues has been thought out or answered by the Government. The Bill manifestly attacks the most fundamental of our civil liberties and is wholly unworkable in practice. It is unjust, offending against every single canon of our criminal justice system. I urge all hon. Members to support the cross-party amendments Nos. 1 to 3; let us have done with this very bad part of a pretty bad Bill.