Fraud Bill [HL]

My Lords, the amendment moved by the noble Lord, Lord Thomas of Gresford, would repeal a provision that was enacted two years ago and replace it with another which, as I shall explain, will add little or nothing to the law as it stands and would, in the Government’s view, be ineffective in dealing with the problem presented by very long fraud trials. Section 43 of the Criminal Justice Act 2003 provides that in a small number of complex fraud cases, where strict statutory criteria—including the approval of the trial judge and the Lord Chief Justice—have been met, the trial may take place without a jury. The implementation of Section 43 was made subject to the unusual requirement of the affirmative resolution process of both Houses, explicitly an order to enable discussions to take place with the parties opposite about possible alternatives to trial by judge alone. I do not want to raise the temperature in the House by labouring the point too much, but the noble Lord, Lord Kingsland, knows well that I do not agree with him on the interpretation of what was said at the conclusion of that Bill. In particular, I do not agree that there was any undertaking that the implementation of Section 43 would only take place through primary legislation; quite the opposite. However, a year ago I chaired a seminar intended to be the forum for the discussions promised. Your Lordships may recall that last June, when I announced the Government’s intention of seeking to implement Section 43, there was some discontent about the manner in which we had made good our undertaking again. I will make it clear: I do not and I have never accepted that discontent. Be that as it may, the point was raised again when the order was debated in Committee in another place. It therefore seemed desirable to have another attempt at engaging with the parties opposite. I have been happy to do that and a meeting took place on 25 January. I had hoped to be able to say that as a result of that meeting, agreement had been reached on the terms on which Section 43 of the Criminal Justice Act could be implemented. I put forward a number of possible modifications that the Government would have been content to make to the statutory arrangements, and there was some indication that these, taken together, might prove acceptable to the opposition parties. I very much regret that, to date, it has not proved possible for them to agree such a compromise. The noble Lord, Lord Thomas of Gresford, argues that trials could be reduced in length by special procedures of the kind set out in his amendment, which he considered would promote better case management. But much of what he proposes has already been done. Case management tools are already available in serious fraud cases. For example, in the type of serious or complex fraud we are discussing, a preparatory hearing under the Criminal Justice Act 1987 almost invariably will be held. In those circumstances, I do not understand what his proposal for management hearings for complex fraud case trials adds to what is already provided. Under the 1987 Act the judge already has extensive powers to regulate how the prosecution presents its case as well as powers to order the defence to identify its objections. Many measures are already in place to ensure better case management. They can be found in the Criminal Procedure Rules or in the last Lord Chief Justice’s protocol for the control and management of heavy fraud and other complex criminal cases. Again, there they are. Not for a moment do I deny the importance of applying good case management tools. I am strongly in favour of that, and have said so on a number of occasions, but I waited to hear from the noble Lord, Lord Thomas of Gresford, which of the provisions in his amendment actually adds something new to rules which already exist, to powers which already exist, or to rule-making powers which already exist. He spent some time on the issue of indications of sentence, but as he himself has recognised, a five-man Court of Appeal—it is an important event when a five-man court sits specifically in order to consider making a change to practice—decided in Goodyear that sentence indications, on the application of the defendant, as the noble Lord’s amendment says, should be possible. They so decided and to my certain knowledge—and no doubt to that of the noble Lord as well—it is now happening in courts up and down the country. There may be differences of view on whether it is a good idea, and I note the points made by the noble and learned Lord, Lord Ackner; I certainly do not think they are a bad thing. On the contrary, I agree with the noble Lord, Lord Thomas, that they are desirable, just as I agree it is desirable that, if possible, there should be agreements on schedules of relevant facts and issues, and that statements should be made by both sides. That is set out specifically in the protocol of the noble and learned Lord, Lord Woolf: there should be statements of case. The noble Lord, Lord Thomas, said it would be a good idea if the defendant made an opening statement. I have been in court when such things have happened. It is not regular, but nothing at the moment would prevent it taking place. So while I do not deny the desirability of good case management, nothing in this amendment adds to the powers that already exist. What is more, it might be harmful. If one appears to give specific powers in the case of serious fraud, that could cast doubt on whether powers already given to the committee are sufficient to allow it to make rules covering all criminal proceedings. The noble and learned Lord, Lord McCluskey, talked about lawyers becoming television presenters and presenting their cases in half or three-quarters of an hour. If the noble and learned Lord the Lord Chancellor were now in his place on the Woolsack, responsible as he is for the Legal Aid Fund I do not doubt that he would be absolutely delighted at the prospect. So too might members of the public be delighted to see cases presented in that way. Again, I do not for a moment underestimate the desirability of the points made. However—this is the second objection—I do not believe that welcome though better case management is, it would be a complete solution in complex fraud trials. I have previously pointed out that one of my major concerns is that the effect of measures designed to reduce a case to manageable size may be that crucial evidence cannot be heard by the jury. How is case management achieved? Frequently, the judge requires a case to be severed, or the prosecution recognises that it must sever a case by taking out defendants or counts. In the Maxwell case, for example, although the prosecution, the judge and almost all defence counsel believed it would be best if all matters were heard together, the view was that this would be unmanageable before a jury, and so it did not happen. Where efforts are made to reduce the amount of evidence put before juries, the effect can be that the defendants do not face justice for the full extent of their criminality. In one well known case the defendant pleaded guilty to two out of 22 counts and received a non-custodial sentence. The trial judge had excluded a substantial body of evidence, not because it was irrelevant or inadmissible, but because it would be unimaginable for the jury, and would make the trial unacceptably long.