Fraud Bill [HL]

moved Amendment No. 4:"After Clause 13, insert the following new clause—" ““SUBSTITUTION OF SECTION 43 OF THE CRIMINAL JUSTICE ACT 2003    For section 43 of the Criminal Justice Act 2003 (c. 44) (applications by prosecution for certain fraud cases to be conducted without a jury) substitute— ““43   AMENDMENT OF THE COURTS ACT 2003 (1)   The Courts Act 2003 (c. 39) is amended as follows. (2)   In section 69(1), at the beginning insert ““Subject to section 69A,””. (3)   After section 69, insert— ““69A   CRIMINAL PROCEDURE RULES IN COMPLEX FRAUD CASES (1)   There are to be special rules of court (called the ““Criminal Procedure Rules in Complex Fraud Cases””) governing the practice and procedure to be followed in the Crown Court in complex fraud cases. (2)   Criminal Procedure Rules in complex fraud cases are to be made by the Criminal Procedure Rule Committee. (3)   The power to make Criminal Procedure Rules in Complex Fraud Cases includes power to make provision for— (a)   the determination of a case as a complex fraud case; (b)   management hearings for complex fraud case trials; (c)   prior to the commencement of the trial— (i)   delivery of statements of case by both prosecution and defence; (ii)   agreement of a schedule of relevant facts; (iii)   agreement of documents to be disclosed to the jury; (iv)   agreement of a list of issues; (v)   exchange of expert evidence; (vi)   the determination of preliminary issues, including applications to stay or dismiss for abuse of process; (vii)   on the application of the defendant, indications of sentence from the court. (d)   at trial— (i)   the composition, vetting and challenging of the jury panel; (ii)   the making of opening statements to the jury by both prosecution and defence; (iii)   an appropriate recess thereafter for consideration by the jury of the opening statements, the agreed facts and documents and agreed list of issues; (iv)   opportunities for clarification by the jury of the material and evidence before them at all stages of the trial; (v)   the electronic presentation of evidence; (vi)   the limitation of prolix cross-examination. (4)   The power to make or alter Criminal Procedure Rules in Complex Fraud Cases shall be exercised in accordance with the principles of section 69(4) and shall follow the process set out in section 72. (5)   The Lord Chancellor shall have the same power to amend, repeal or revoke any enactment contained in section 73 in order to facilitate the making of Criminal Procedure Rules in Complex Fraud Cases.”” The noble Lord said: My Lords, I understand that it is the Home Secretary’s intention to abolish jury trials in complex fraud cases through a stand-alone Bill, and not to proceed under Section 43 of the Criminal Justice Act 2003. Your Lordships will recall that the noble and learned Lord the Attorney-General announced in June last year that he would introduce measures in both Houses to activate Section 43. We started that process but it will not now be completed. We on these Benches cannot agree that it is necessary or desirable to abolish juries in complex fraud cases. It is not thought to be in America. The trial of the two top people in Enron started in Houston, Texas at the end of January on 31 counts of conspiracy, fraud, insider trading and lying to auditors. In this country, counsel would then think that it would be a two-year case with, no doubt, return work for a considerable time. What is the estimate for the American case? Four months. A jury was chosen in a single day out of a jury panel of 100 and the case is now well under way. That raises the question: why do trials in this country in this type of case take such a long time and cost so much? Your Lordships will recall the Jubilee Line trial with six defendants. It collapsed after 18 months—sickness and jury problems, lengthy delays and disruption dogged the proceedings so much that a fair trial became impossible. I do not believe that it is the fault of the jury or the jury system. From experience, I know that if we were to maintain the same procedures as we had then in a trial before a single judge, not much would be gained. It is the procedures, which are hoary with age, that require to be looked at with a fresh eye. A criminal trial is deemed to commence when the jury is sworn and put in charge of the defendants. Everything that has gone before is regarded as a mere preliminary. In my view, a significant part of the trial should be completed before the jury is ever chosen and the calling of oral evidence begins. That is in accord with the Lord Chief Justice’s introduction on 22 March last year of a protocol for the control and management of heavy fraud and other complex cases. The noble and learned Lord referred to that in the debate on the previous amendment. From the point of view of this amendment, it was interesting to hear him say that it would be appropriate to have some time to see whether that protocol works. The proposal to abolish jury trials before the protocol has had the slightest chance of proving its worth is entirely premature. From what the noble and learned Lord said a moment ago, he might agree. The protocol gives guidance on case management, disclosure, abuse of process, and so on. It has the advantage of being flexible and can be changed from time to time as practice develops. However, the protocol does not have any statutory backing and cannot change the substantive law. The purpose of my amendment is to create specific criminal procedure rules for complex fraud cases. It may be said by the noble and learned Lord that the Criminal Procedure Rules Committee already has power to make special provision in special types of cases. It seems to me that the complex fraud case requires rules of its own so that special procedures can be brought in. If those rules are brought into being, they will ensure that the issues are completely clear and open prior to the trial before the jury. No more would the defence hug to itself the nature of its defence and fail to disclose it. There should be a statement of case by both sides, agreement of facts and documents and disposal of all the issues which otherwise clutter up and delay the trial before the jury. I consider it important that there should be a statutory framework for the indications of sentence by the trial judge on a plea of guilty. That is normally called plea bargaining. In no other case can there be so much saving of public money and court time than in these fraud cases which take so long. The process of plea bargaining has historically in this country been in disrepute on the basis that it places too much pressure on an innocent man to plead guilty and to settle for a lesser sentence. But there are, and always have been, considerable negotiations prior to trial between counsel on both sides as to the specific charges and the factual basis of a plea of guilty if one is tendered. So there is already a degree of plea bargaining in the system, and has been for as long as I can remember. However, indications of sentence are not done openly. In my experience, indications of sentence have always been made. In the old days, the judge’s clerk was the important conduit of information, but hints and winks give rise to misunderstanding. The climate has now changed completely. I look for a more open and transparent system. In the case of Goodyear in April of last year, a five-judge court of the Court of Appeal headed by the Lord Chief Justice and the Deputy Lord Chief Justice said:"““We cannot, and do not seek to, water down the essential principle that the defendant’s plea must always be made voluntarily and free from any improper pressure. On closer analysis, however, we cannot discern any clash between this principle, and a process by which the defendant personally may instruct his counsel to seek an indication from the judge of his current view of the maximum sentence which will be imposed on the defendant. In effect, this simply substitutes the defendant’s legitimate reliance on counsel’s assessment of the likely sentence with the more accurate indication provided by the judge himself””." So the climate has changed dramatically and plea bargaining involving the judge is now countenanced by the Court of Appeal. It seems to me that it would be right and proper, particularly for this type of case, to introduce a statutory framework. With regard to procedures at trial, the amendment sets out significant procedural reforms. Juries are vetted now for their criminal records and, in relation to terrorist offences, by the security services. Questions are asked frequently of jurors where there might be bias. I recall the case of Shankland and Hancock, miners in the miners’ strike, and the death of a taxi driver as a result of a concrete block being thrown over a bridge. I recall the late and lamented Lord Williams of Mostyn on behalf of the defence asking the judge whether he could exclude anyone from the jury who was related to taxi drivers. For the prosecution, I said that I was not seeking to remove people who were related to miners, so we got on with it. The point is that there always has been an attempt to see whether there is any inbuilt bias. I see no reason why in a fraud case inquiries cannot properly be made of the jury panel as to basic literacy, numeracy and familiarity with the English language, depending upon the nature of the case. Indeed, I note that the consultation paper put out by the Government in 1998 envisaged jury vetting in this type of case, to see whether the jury will understand. At the moment, the only check is if a juryman stumbles when he takes the oath—frequently, he will then be asked by the judge to excuse himself if the case involves a lot of documents. There is no other opportunity for testing the competence of the juror. Noble Lords will see that I have therefore included in this amendment a provision to consider the vetting of juries. The order of speeches in a criminal trial dates back to Lord Denman’s Act—to Section 2 of the Criminal Procedure Act 1865. If the jury would grasp a complicated case by hearing counsel from both sides set out their stall at the beginning, there is no reason why opening statements from both sides should not be made. That is thought to be heretical at the moment, but there is no reason why it should not happen, as it does in other common-law countries. I also suggest in the amendment that there should be time for private consideration by the jury of all the documents, opening statements, agreed facts and so on. There is no reason why the jury should be plunged directly into the oral evidence. I also refer to questioning by the jury. Questions can and frequently are asked by juries now, but they are in no way encouraged. There is almost no case law on this. I think that there is a brief reference in an 1896 case, but only in one modern case was it raised as a ground of appeal—the case of Barnes in 1991. In that case, the judge was dissatisfied with the cross-examination of the defendant by prosecuting counsel and invited the jury to formulate additional questions. Lord Justice Russell, in the Court of Appeal, said that the practice of inviting juries to ask questions was generally speaking to be deprecated, because they are not familiar with the rules about evidence and might ask questions which would be difficult to deal with. The appeal failed, but the case turned on its own facts. In a complex case, by contrast, surely it would be sensible to put aside time to answer queries raised formally by the jury at any stage of the trial. Communication is a good thing. Their questions might well throw up misunderstandings that can be quickly cleared up or points that can be answered by the evidence. I do not suggest that this amendment contains an exhaustive list of procedural improvements. A significant shortening of trials might arise from another quarter—the Government’s other proposals gradually to reduce refresher fees to counsel as the days draw on. Before Third Reading, the Government might like to take time to consider the existing protocol that has been issued by the Lord Chief Justice—bearing in mind, as the noble and learned Lord the Attorney-General said, that it has not had time to work—backed by procedural rules that can make substantive changes to current procedures. I suggest that that is a better way forward. Before this Government make another of their never-ending attempts to abolish the fundamental principle of jury trials, they should see whether these less drastic reforms will bring the improvements in time and cost that they want and that anyone who is concerned with the efficient and proper dispatch of the processes of the criminal justice system also requires. I beg to move.