---

Fraud (Trials without a Jury) Bill

I agree. One should not try to anticipate precisely how long a trial will be before it starts. That would be contrary to the interests of justice. One might genuinely think that the matter could be resolved in a week or two, but issues might arise, or the defence might want to call additional witnesses, and it could take longer. That is not to say that trials should not be effectively managed. As I said earlier, there is a contradiction in the requirement on the judge to preside over the trial effectively and manage it properly—which means that he has to read himself into the case in advance to assess what the main points are likely to be—and giving him the obligation to reach a verdict. He can reach a verdict only on the basis of evidence that is made fully available to the defence, so that the defence has a full opportunity to challenge it during the trial. If the judge is reading material privately or in chambers before the trial starts, he cannot reach a verdict on that basis. There is a conflict of interest. This is a matter of principle, as I pointed out earlier, but it has important pragmatic considerations. I have dealt with the principle as clearly as I can, so I shall continue on pragmatism. When we consider the historical, empirical evidence, there is general agreement that the Jubilee line trial collapsed for reasons that were nothing to do with the jury; they were the first people to be taken aback by the fact that the trial had collapsed and expressed themselves quite clearly on that point, as they did about the patronising suggestion that it was something to do with them because they were unable to master the evidence. They had no opportunity to reach a verdict, so the collapse was nothing to do with them. The Solicitor-General mentioned several other well-known cases, such as Maxwell, Blue Arrow and, I think, Guinness 2. Those cases collapsed because of mistakes made by the prosecution, including sometimes the desire to over-prosecute and put too much into the indictment—just to rub in the point I made when I dealt with the Solicitor-General’s intervention. It is a mistake to over-charge. Indeed, I think that one pays lawyers—one normally pays them very expensively—for their ability to identify the essentials of a case, not to waste time, and not to obfuscate but to clarify. So that is an indictment of the prosecution of these cases. Sometimes the trial judge simply loses control of the case, and that may well have been so with Jubilee line. In a way, we are treating the jury as a scapegoat—an innocent sacrificial victim—for the failings of professional lawyers in the form of judges or of prosecuting counsel. That is quite a serious injustice in itself and should make us think. The final piece of pragmatic evidence and consideration that I want to bring forward has already been mentioned in passing by the hon. Member for Somerton and Frome (Mr. Heath), anticipating me slightly. We should look at the American experience, because the Americans have been extremely successful in getting convictions in very complex fraud trials. They do not get more complex than Enron or WorldCom. Enron’s was a scam involving a very complex series of off-balance-sheet accounting mechanisms, which were effectively disguised. I suppose they were disguised from the auditors, but I think that the extent to which the auditors were criminally negligent or not is still a matter of sub judice, so I had better not comment on that, even though we are talking about an American jurisdiction—and frankly I do not know, which is the real reason why I do not comment. But it is extraordinary and amazing that the auditors did not pick it up; I happily say that on the record. Certainly, all those highly paid Wall street analysts—very few earn less than $500,000 a year, and most earn more than $1 million—who were covering Enron did not pick it up. So it was a very clever fraud. It went on for a long time, and we know that it was very damaging. That case was complex and it was dealt with by a jury trial. The prosecuting authorities did succeed in getting some plea bargains with the lesser criminals, but the main convictions against Skilling and Lay, the chief executive and the president of the company, were secured against not guilty pleas before a jury. That is a very good test and the system worked very well. The Americans have put inside a whole series of very serious, very sophisticated financial fraudsters; one thinks of Levene, Boesky and Milken, and they do not come bigger or more complex than that. We must take account of the American experience. Looking at this as a matter of principle, unless Members on the Labour Benches have a totally different view of the merits and the virtues of our constitution and the legal system—which I do not believe, because I like to think that we all share some of the same cultural, historical values of our country across the Chamber—I cannot see the beginnings of a case for making an attack on the jury system, even this limited attack, let alone any further attack that might be made. It was suggested several times this afternoon that there is a danger that if this wedge goes through, we shall find that a whole new category of criminal trials are excluded from jury trial in the future, perhaps in the Government’s next fraud Bill or criminal justice Bill. It seems to me to be a matter of principle that no case has been made to make these changes and, pragmatically, we do not have a trade-off. We do not have positive pragmatic arguments working against the principle. We have a clear series of experiences, in this country and in the United States, which weigh very much in favour of keeping the status quo. In my opinion the Government’s proposals are incredibly misconceived. I am deeply saddened that practically no one from the Labour party has been in the Chamber—just three Back Benchers—and Labour Members will all troop in, without hearing the arguments, and vote the way that the Whips tell them on this matter, which has been brought forward with the greatest degree of levity and lightness of concern for some very deep and important principles. I do not always speak in a very friendly way of what I often call the ““nominated Chamber”” in this legislature, but it will have the role of picking up where we have failed. I just hope, as my right hon. and learned Friend the Member for Sleaford and North Hykeham said, that the other House will ensure that it looks very carefully at the real arguments before it makes a fundamental change in a foundational principle of our liberties.