I beg to move amendment No. 205, in

clause 37, page 24, line 29, leave out from 'he' to 'but' in line 30 and insert

'may, subject to subsection (6), make an order—

(a) specifying that the trial is to be conducted with a smaller jury consisting of eight jurors all of whom have indicated their willingness to serve on a potentially complex and long case,

(b) appointing up to two special advisers to assist the jury in understanding any arrangements, transactions or records of a financial or commercial nature or which relate to property and which relate to the trial, or

(c) specifying that the trial is to be conducted without a jury.'.

With this it will be convenient to discuss the following amendments:

No. 237, in

clause 37, page 24, line 29, leave out 'must' and insert 'may'.

No. 238, in

clause 37, page 24, line 32, leave out

'the complexity of the trial or'.

No. 239, in

clause 37, page 24, line 32, leave out

'or the length of the trial'.

No. 240, in

clause 37, page 24, line 32, leave out '(or both)'.

No. 272, in

clause 37, page 24, line 32, leave out from second 'trial' to end of line 38 and insert

'is likely to be such that—

(a) it may place an excessive burden upon the life of a typical juror; and

(b) after reasonable efforts have been made, no jury can be found for which it would not be an excessive burden.'.

No. 206, in

clause 37, page 24, line 34, leave out paragraph (a).

No. 241, in

clause 37, page 24, line 35, leave out

'in the interests of justice'.

No. 273, in

clause 37, page 24, line 39, leave out from first 'that' to 'will' and insert

'the length of the trial'.

No. 243, in

clause 37, page 24, line 43, leave out 'or commercial'.

No. 244, in

clause 37, page 24, line 43, leave out

'or which relate to property'.

No. 245, in

clause 37, page 24, line 44, leave out 'nature or'.

No. 207, in

clause 37, page 25, line 1, leave out subsection (6) and insert—

'(6) Such an order may not be made unless—

(a) all steps which might reasonably be taken to reduce the complexity or length of the trial have been taken,

(b) the judge is satisfied that after such steps have been taken conditions (1) and (2) above continue to be met, and

(c) the judge is satisfied that such an order will not compromise the defendant's right to a fair trial.'.

No. 274, in

clause 37, page 25, line 3, leave out 'complexity or'.

No. 246, in

clause 37, page 25, line 4, leave out subsection (7).

No. 208, in

clause 37, page 25, line 5, at end insert 'or the defence'.

No. 254, in

clause 37, page 25, line 6, at end add—

'(8) the length of the proposed trial shall not be considered by the judge unless

(a) the Prosecution and Defence have jointly advised that the trial is likely to be longer than 12 months, and

(b) the Judge takes the same view, and

(c) the Judge is satisfied that it is not reasonably practicable to impound a Jury.'.

We are now on to the debate on whether jury trials could be done away with after application by the prosecution for judge alone trials in complex or lengthy cases. The amendments from both Opposition parties represent an attempt to mitigate that. I am still not persuaded of the merits of the clause, and like other hon. Members I expect to vote against it when the time comes.

Some of the amendments were tabled by my hon. Friend the Member for Hertsmere (Mr. Clappison), but he is not here because he is unwell. I mention that because he would not want the Committee to think him discourteous for not turning up to debate his amendments.

I hope that none of us will think that.

The Liberal Democrat amendments seek to restrict applications for trial without jury in such cases. Amendment No. 205 suggests two obvious ways, which have been widely canvassed, to deal with the fact that long trials can be inconvenient to juries.

The experience of those who try long trials, especially complex fraud cases, and of the Serious Fraud Office, which manages most cases of that sort, is generally successful. It may surprise the public to hear that there is an 86 per cent. conviction rate. The problem is not public understanding but the practical problem of whether it is convenient to have to be in court week after week in a case that may go on for 18 months. I understand that the Government were motivated to make the change not because of the inability of juries to cope with long cases intellectually or for other reasons, but because of the practicality of dealing with such long cases. The amendments therefore seek to address the practical question of how to maintain the jury principle in a way that does not make jury service too difficult.

The first suggestion in amendment No. 205 is that instead of having a trial without a jury, the judge could order that the case be

heard by a smaller jury of eight jurors, and that those jurors would have to indicate their willingness to serve on a potentially long case. The second suggestion is that two special advisers could be appointed to help the jury to understand financial or commercial matters.

I am keen to promote the representative nature of the jury. It would not necessarily lead to a less representative jury if we had to establish whether potential jurors were able to hear a long case. For instance, the fact that people may be retired does not necessarily mean that they are elderly: they may have retired at a relatively young age. Those who are not working may be unable to do full-time or even part-time work because of illness or disability, but they may be willing to serve. On the other hand, it may be inconvenient for some people to serve on a jury in a long case for family, personal or career reasons.

The Government are keen that there should be far fewer exemptions from jury service. They want everyone to be included—for instance, GPs should not be able to get off jury service as they have in the past. We need a combination of factors. First, we need to ensure flexibility for those called to jury service—they should be able to say, ''I cannot do it now, but could manage it from next June onwards,'' or, ''I am in difficulty between now and Easter, but not afterwards.'' Secondly, if the risk is that 12 people could not easily be found who could serve for a year, we need to be able to ask potential jurors if they could serve for that long. In either case, we would still ensure a representative jury.

The other objection to jury trial is that cases might be too complex—to be honest, many people find book-keeping complex. If so, we need other people to help the jury. We cannot ask the judge, who may not be an expert, and we cannot ask the lawyers, who may occasionally have an interest in confusing matters. We need someone—perhaps an accountant or a book-keeper—to be able to tell the jury what a balance sheet means and, as an independent adviser, give an interpretation of the figures. That is one way of dealing with the concern over complexity.

I am a complete layman, but it appears that clause 37's biggest difficulty is precisely the reverse of the argument that was made under clause 36 that the defence would play the system and choose whatever mode of trial was to their best advantage. In clause 37, the prosecution have the opportunity to do exactly the same. They can attempt to choose the mode of trial that would best increase their chances, and thereby disadvantage the defendant. I see nothing in the clause or the amendments that provides any comfort or protection for defendants.

Order. I appeal to Committee members, as I did this morning, to make short interventions. If speeches are required, all that has to be done is to catch my eye.

I am grateful, Mr. Cran.

I share the hon. Gentleman's views. I prefer for there not to be that choice. One job that we always have to do in opposition, as he will discover—

Not for a long time.

Some of us hope that it will happen sooner than he may wish, and in any case the hon. Gentleman can be in opposition sitting where he is. That is another option, but far be it from me to give him that advice.

We must seek to ameliorate the situation. I know that we would rather get rid of the clause, but the process up and down the Corridors sometimes means that one does not get all that one wants, and there must be a compromise. I am trying to improve matters without breaching the point of principle to which the hon. Gentleman referred.

It has never struck me that there is a theology behind there being 12 on a jury, although I do know the theology behind the number 12. In this country, I am not sure where the idea to have 12 people on a jury came from. It may have derived from the fact that there were 12 disciples, and therefore somebody felt that that would be the right grouping of people to summon to decide on matters of justice. We moved on, and majority verdicts were introduced—originally 11–1, now 10–2. Given that, it strikes me that there is a perfectly reasonable argument to have a slightly smaller jury. No magic surrounds a jury needing 12 people to make it perfectly representative. Opinion polls could no doubt advise us on that matter.

May I reinforce the point by saying that juries in France usually consist of nine people? There is no especial magic in the number 12.

There may be some deep psychological and historical reason why different numbers are chosen. We can only speculate on that.

Amendment No. 206 would leave only one reason why the prosecution could apply for a trial to be conducted without a jury. All the amendments are lesser alternatives—they are second preference to removing the clause—but No. 206 would mean that the only condition that could justify not having a jury trial would be that it

''would be likely to place an excessive burden upon the life of a typical juror.''

The amendment would get rid of the argument that to hold a jury trial would be so burdensome that a judge only trial would be

''necessary in the interests of justice'',

not least because some of us argue that that is an evaluation one cannot make, and that justice is better served by the conventional jury trial.

Amendment No. 207 would remove the criteria that the Bill requires the judge to fulfil. Those criteria are sensible as far as they go. If the Bill becomes law, the judge will be required to work out whether the two conditions set out in subsection (4) are fulfilled.

Subsection (6) states:

''In deciding whether or not he is satisfied that both of those two conditions are fulfilled, the judge must have regard to any steps which might reasonably be taken to reduce the complexity or length of the trial.''

That is sensible. A judge might think of ways of making the trial easier. Increasingly, courts use summaries of facts. They use other documentation supplied by agreement of both sides to make it simpler

to understand lots of paperwork. I welcome that. Decisions are also taken to make the cases shorter. Sometimes they have longer sitting times so that people do not have to spend so many days but have as many hours. Sometimes they have shorter lunch breaks. There are various ways in which it can be done. Often a number of specimen counts are chosen rather than having every possible count on the charge sheet.

We want to beef up the preconditions for ordering a non-jury trial in a serious, complex or lengthy case. First, the judge would have to have taken reasonable steps to reduce the complexity or the length of the trial. Secondly, he would have to be satisfied that it was necessary not to have jury trial to make it less burdensome. Thirdly, he should be satisfied that the defendant's interests would not be compromised. That ties into amendment No. 208.

Before the hon. Gentleman moves on, could he explain why he believes that if the trial were to be presided over by a judge, as opposed to having a jury, it would shorten the trial procedures and make it less burdensome for those still involved in the trial?

I believe, and I stand to be corrected by hon. Members with experience, that if there is a jury, it generally takes longer for the points to be made in court. Lawyers on both sides feel obliged to spell things out at greater length—whether that is necessary is a separate matter. Moreover, the jury is not allowed to do what the judge does. When a judge is in proper control of the case he will frequently say, ''Thank you very much, Mr. Malins. I have taken the point.'' He will then stop everyone else repeating, elaborating on or extending it. There is a significant difference.

In evidence giving, the case can be shortened by having a judge and no jury by about a quarter to a third, and in submissions to the court by about the same amount. I bow to the evidence if there is any. I can see the merit in terms of speeding up the wheels of justice, but the price we will pay will be the loss of the security of the verdict and all the benefits of a jury trial.

Is there not a danger that complex fraud cases could be made longer rather than shorter? Currently, in trials with a jury the prosecution and the defence always try to keep it simple and straightforward. In a judge only trial the lawyers might run away with themselves in complexity with ever increasing complex papers and arguments.

That is a risk. Professionals only trials have distinct disadvantages. Lawyers with a particular expertise in serious fraud might talk in the language of acronym, summary and technicality. Not only might that become more obtuse and obscure, but the defendant might lose the plot. The public and those who report the trial would be far less likely to understand the case. In the Saunders case, for example, there was a public interest in the case of a great big international company, fraud and so on being reported accurately. To put it bluntly, it is

important that legal affairs correspondents, who may not necessarily be lawyers, can report in simple terms what has happened to someone's investments, shares or business. There are serious justice issues in making sure that there is an obligation on lawyers and on judges to speak in the language of ordinary people. The truth is that if cases are well prepared they are easy to understand; it is when people have not done the preparation that they use technical language to hide the fact that they do not know what is going on.

Amendment No. 208 would change clause 37(7), the wording of which seems slightly unjustified. It reads

''But a step is not to be regarded as reasonable if it would significantly disadvantage the prosecution.''

It strikes me that a clause should be even-handed and not disadvantage either the prosecution or the defence. Amendment No. 208 would provide that even-handedness. I hope that colleagues will consider these ways of improving the system if we change the principle, although I hope that this House and the other House will not change that principle.

I listened with care to the hon. Gentleman. In moving amendment No. 205 he raised an interesting topic for discussion about improving the clause. I will return to it at the end of my comments. Our amendments run through the clause subsection by subsection to identify the key areas that the Committee may like to consider in it.

I, too, believe in the validity of jury trial. It should not be pushed aside without good and sufficient reason. That said, I am pragmatic: if good and sufficient reason can be shown and there are no serious impediments to justice being done and being seen to be done, I am prepared to keep an open mind.

It is unclear, apart from the burden on a jury, which I will return to in a moment, that this is necessary for justice to be done and to be seen to be done. Statistics speak for themselves: the conviction rate at the Serious Fraud Office is about 80 per cent. I do not accept that it is beyond the capacity of juries to return understandable, coherent verdicts in long and complex trials. Cases such as the Maxwell case are sometimes bandied about, but they support my argument rather than undermining it. The evidence as it emerged and was commented on amply supported the final decision of the jury, even if it was not the one that might have been expected at the outset.

In any event, long and complex trials, as the hon. Gentleman rightly said, have their own problems. A wise prosecutor tries as much as possible to avoid them. Interestingly, the Government take a different view and clearly think that long and complex trials may be very necessary in the interests of justice, so they want to get rid of juries to enable such trials to happen more smoothly. Hence, the provision in clause 37(7) that a step is not to be regarded as reasonable if it would significantly disadvantage the prosecution.

My first observation on reading the clause is that its provisions may be intended to cover long and complex fraud trials. As drafted, however, it offers the possibility of non-jury trials for a much wider scope

of offences than just fraud cases. I say that to the Minister, and shall illustrate it as we proceed.

I specialise in health and safety at work, an area that would undoubtedly be caught by the provisions because the trials are often lengthy and complex, and arguably often concern property, in the sense that an incident took place on property. I do not know whether the provisions are intended to cover such cases. However, I think that there is the potential for that. If so, I point out to the Minister, as an illustration of my point, that the Court of Appeal and the House of Lords have repeatedly issued dicta that the Health and Safety at Work, etc. Act 1974 is, by its very nature, one for which it is for juries to decide the questions of fact. The burden of proof can be reversed and is not the ordinary proof beyond reasonable doubt. Given that, the jury is the essential safeguard between the defendant and the unfair prosecution that might be visited on him.

Amendment No. 237 is a straight ''may'' and ''must'', and would remove the necessity. I accept that the Minister could argue that it is a wrecking amendment. Although it would still allow a trial to take place without a jury, it would leave a residual discretion to the judge to say that a jury trial was necessary, notwithstanding the drawbacks.

Amendment No. 238 concerns the complexity of the trial, which brings me to my point about complexity as opposed to length. Subsection (4) makes it clear that one can go for trial by judge alone because of either length or complexity. I accept that the two might go hand in hand in most cases. However, health and safety trials do not normally meet the criteria of great length—though I was involved in one that went for six weeks. I understood, from the White Paper and elsewhere, that we were talking about trials that last for five, six or nine months. Health and safety trials are undoubtedly complex, however, because they often require that multiple expert reports be listened to, and there might be a need for lots of technical documents and the instruction of a jury, frequently in engineering, electrical engineering and other scientific disciplines. It might be extremely complicated to explain to a jury why someone failed to look after his employees. Such matters undoubtedly satisfy the complexity test, but I have never heard it suggested in my field of practice of health and safety at work that it was necessary to dispense with the jury.

Why is there a complexity provision? If a trial is merely complex, but not lengthy, what burden is placed on the jury that the Government consider impossible for them? What evidence is there that justice cannot be done because of complexity, as opposed to length? I understand the argument about length. What is the argument on complexity? We should break the matter down into component parts. There is at least an argument that complexity has nothing to with the issue, and that the problems spoken about in the White Paper are those that relate to length, and volume of material.

Amendment No. 239 is designed to home in on the length of the trial. A long trial might not be complex at all. If I have understood the subsequent provisions, it appears that the burdensomeness might spring from

length. Even if it is lengthy, a trial can be perfectly comprehensible. The key area for the Committee to consider is whether the Government can adduce serious, credible evidence that, from a potential panel population of possibly 25 million or 30 million people—I do not know the exact number, but it must be pretty vast—between the upper and lower age limits, the judicial system cannot produce jurors to try cases. If the only issue is length, I am satisfied that one can always find jurors. I have never known a case in which it has not been done. One might start with a panel of 200, but that does not matter. I have not heard it said that the jury panel with which a court has ended up is a group of unemployed halfwits. I accept that there are issues concerning juries, but I find the message that is being pushed by the Government extremely unsatisfactory.

Patronising.

Indeed. I would like to draw the Minister out. If that is his anxiety, we need to know about it.

Amendment No. 240 is a consequential amendment, which we need not go into. I should like comment on amendment No. 272, which was tabled by my hon. Friend the Member for Hertsmere, who is not here. It is rather sensible. No jury can be found for which it would not be an excessive burden. That brings us to the nub of the issue. Can the Minister bring to the Committee good evidence that there are instances in which no jury can be found for which it would not be an excessive burden to do a six or nine-month case? I am not sure about the lengths of the longest criminal trials to have taken place in this country. It would be useful to know how many trials lasting more than six months there have been in the past year or two. That would be a helpful indication as to the extent of the problem, so that we can decide whether the solution before us is the right one.

Amendment No. 273 is solely about length of trial. Then we come to amendment No. 206, which concerns burdensomeness. Subsection (4)(a) and (b) say two similar but slightly different things. I seek the Minister's help as to what the relationship is between them and how they differ. They bear repetition. They concern instances in which the complexity or length of a trial, or both

''(a) is likely to make the trial so burdensome to the members of a jury hearing the trial that it is necessary in the interests of justice for the trial to be conducted without a jury, or

(b) would be likely to place an excessive burden upon the life of a typical juror.''

I am not convinced that I understand the distinction. I think that paragraph (b) is saying that there is no problem, but it would be so irksome to the juror that there ought not be a jury and paragraph (a) is saying that not only would it be irksome but, in some way, the quality of justice would suffer as a result. Even if I am right, I am not convinced by the argument. Can the Minister explain the relationship?

I would like to draw the Minister out a little on amendment No. 241 and the ''interests of justice''. The interest of justice is that there should be a fair verdict. Is he saying that the current system is not producing

fair verdicts? If not, the phrase should be removed from the clause. It is really all about the convenience of jurors.

Let us be honest, many things are burdensome. It is burdensome to be called up for jury service, though it is a hugely important function for the average citizen and we should celebrate it more than we do and afford it greater recognition within society. It is one of the key elements of participatory democracy. We often speak about devolution in that context, but jury service is one of the best examples of real participatory democracy that I can think of.

I am unconvinced by the phrase ''the interests of justice''. Will the Minister explain how placing a burden on the juror does not serve the interests of justice? On that basis, we could get rid of jury trial altogether: it is bound to be burden on anyone who is called up. The Government do not really mean ''the interests of justice'', so we should call a spade a spade and take it out.

Amendment No. 244 brings us to ''relate to property''. The Minister is laughing, and I am glad to provide him with some mild entertainment in the course of a long afternoon sitting and I take it as a mild compliment. However, once one focuses on the detail, it becomes a serious issue. Part of the clause is simply verbiage to decorate an otherwise unpleasant and uneasy change.

I referred to the famous amendment No. 244 earlier. Under subsection (5)(a), the complexity and length of a trial is attributable

''to the fact that the issues likely to be material to the verdict of a jury hearing the trial relate to arrangements, transactions or records of a financial or commercial nature or which relate to property''.

If in a health and safety case a victim has died falling down steps or been crushed by a machine, would it not fall squarely under subsection (5)(a)? Arguably, all sorts of other criminal cases might do so, too. Do we really want that definition, or should it relate to commercial transactions affecting property? Amendment No. 243 would leave out the word ''commercial'', so will the Minister explain what it means in this context?

Amendment No. 274, tabled by my hon. Friend the Member for Hertsmere, would leave out the word ''complexity'', so subsection (6) would refer to reducing only the length of the trial. That takes us back to the question of the true motive.

Amendment No. 246 would remove subsection (7), which deals with disadvantaging the prosecution. My experience of fraud trials is not enormous, but I have done some. I remember an 18-count trial in Norfolk, in which I represented a solicitor accused of mortgage fraud. We got the indictment severed in three, and the judge said that an 18-count indictment was ludicrous, not because of the comprehensibility to the jury, but because of what the prosecution wanted to show. The judge did not aver it in open court, but subsequently took the view that if the defendant was convicted on one indictment, it would be difficult to resist

conviction on the others, and that if he was acquitted on one, the prosecution might want to consider the matter further. In fact, he was acquitted on the first and second indictment, and the prosecution then dropped the third, greatly to the saving of the public purse.

I am all in favour of the severance of indictments, although I remember the prosecutor being upset about it because the massive product that he was going to present had to be compartmentalised. In fact, it did him a good turn. He had lost sight of the wood for the trees and, in this case, of the fact that most of the witnesses were in league with the defendant in the mortgage fraud. There had been no fraud, because they had never been misled. They were the building society managers who had been lending the money on the defendant's say so.

I point that out because it is my experience that large trials are far from an advantage to the prosecution. Distilling issues into small compartments is enormously helpful to everyone, including the prosecution. However, I agree with amendment No. 208, because if the change is not to be to the disadvantage of the prosecution, it should not be to the disadvantage of the defence either.

Amendment No. 254, to which my hon. Friend the Member for Woking will speak, concerns the 12-month rule for a trial. How long is a long trial? We have to grasp that nettle and decide how to define it. Otherwise, I fear that there will be many problems.

I apologise for taking up too much of the Committee's time, but I have identified important points on which I want the Minister's answers. It would be easy to be carried away with the flow of rhetoric that appears in clause 37, but it masks the Government's real intention. They believe that lengthy trials are a bore for the prosecutor and the judicial system and would much rather have them tried by judges, although there is no reason from the point of view of fairness why juries should not be involved.

I do not like clause 37. We will debate the issues of principle involved on clause stand part, but I want to ask the Minister some questions.

If there is a mischief that the Minister is seeking to cure through the clause, what is it? What research has been done to prove that there is a problem? What soundings has he taken from the judiciary, the Bar Council and others intimately involved in trials about the merits of his proposals? How many juries have been discharged because of the case's complexity or length, and how many cases have not been able to start because of the impossibility of empanelling a jury?

If there are dozens of examples of each case, one will have more of an understanding, particularly if it is backed up by detailed research among the judiciary and legal profession. That would provide more understanding of why the clause has been included. However, until we get that research, we cannot be particularly pleased with the clause, not least because it is another move to take away jury trial from a defendant. In my experience, there are few, if any, cases that cannot be properly turned into language

that is understandable by jurors and properly dealt with in a reasonable time.

Amendments Nos. 238, 240 and 254 concern two aspects: complexity of trial and length of trial. I echo the question of my hon. Friend the Member for Beaconsfield about how long is a long trial? Is it six, nine or 12 months? Is it merely an arbitrary decision for a judge to take in each case? Amendment No. 254 would insert a provision to tighten the position on the length of a trial by saying that it should not be a deciding factor unless first, the Crown and the defence have jointly certified that the trial will last for more than 12 months, secondly that the judge takes the same view, and thirdly that the judge is satisfied that it is not reasonably practicable to empanel a jury.

Otherwise, we would have the vagueness of counsel saying that the case will take a long time, and therefore would be an ideal case in which to have no jury. The judge would then ask how long the case would take, and counsel for the Crown would say that he did not know because he did not know how many witnesses the defence would call, but believed that the Crown case could take a few months. If the defendant was then obliged to say how long his case would last, he might come up with a figure that was different from the Crown barrister's.

The point of my comments is that certainty is needed in such situations. A judge in court No. 1 might say that a case looked as if it would last for six months, based on what counsel had said, and that therefore he would wheel it away from the jury and give it to another judge sitting alone. Meanwhile, in court No. 2 a judge might decide that a case looked interesting, and decide to take it even though its duration had been estimated at 10 or 11 months. There is no certainty in using the phrase, ''length of a trial.'' Where is the evidence that the length of a trial in the past has resulted in a jury being discharged or being unable to return a verdict?

There is a further issue that I should like to raise. I do not like the phrase

''excessive burden upon the life of a typical juror.''

The more I look at that phrase, the less I understand what it means. What is a life? Are the Government saying that the life of a juror is a 24-hour-a-day life? Is the phrase implying that the excessive burden falls on the juror during the trial hours—10 till 4 pm, with substantial breaks—or that the burden is such that the life of the juror is deemed to be 24 hours a day? Are members of the jury taking home with them too many pressures and problems? It is not a happy phrase.

I would consider a burden on the life of a juror to be trying a murder or drugs case in which there are serious threats of tampering with the jury or their family members. As a jury member it would be a burden on my life if I was walking to court every day concerned that I was being followed by a friend of the defendant.

The issue of complexity has been covered already. It is a good thing if counsel on both sides can reduce the evidence into a form that is easily comprehensible. That is done day after day in fraud cases. I forget who it was—I will be forgiven, I hope—who suggested that

in cases of fraud heard by a judge sitting alone there might be a temptation for everyone involved to become increasingly complex in their arguments, so that eventually the judge might be overwhelmed by the complexity of the matter, and might have to discharge himself or herself because he or she could not understand the arguments. There is thus also a danger of going too far the other way.

If I had come across dozens of cases over the years in which it was too difficult for the jury to comprehend the documentation, or in which it was impossible for counsel for the Crown to reduce that documentation to comprehensible elements, I would understand this provision. If I had come across cases over the years, even anecdotally, in which jurors could not continue because of the burden of time, I would find it a little more acceptable. However, as things stand I have severe doubts on the issues of complexity and length.

On amendment No. 244, I assume that the Minister will confirm that the word ''property'' in clause 37(5) refers to real property rather than intellectual property, intellectual property being entirely different from real property, although the two are different aspects of the same matter. Perhaps we shall receive confirmation on that from those who are in the know, but let us assume that it refers to real property, namely a building. This is very strange. The clause states:

''The second condition is that that complexity . . . will be attributable—

a) to the fact that the issues likely to be material to the verdict . . . relate to property''.

I do not know what that encompasses—

Sitting suspended for a Division in the House.

On resuming—

I was talking about property and amendment No. 244. Put simply, a complicated case involving conveyancing fraud relating to a property that might last for only eight days could, under the provision, be taken from a jury. The Minister will correct me if I am wrong, but it could equally be argued that a complicated case involving burglary of domestic property relates to property. Will the he explain precisely what he means? There is a danger that the prosecution will be tempted to consider it easier to remove more and more cases from a jury and place them in the hands of a judge.

There are many issues to which we should return on clause stand part, which I look forward to discussing. However, I hope that the Minister will respond to the issues that I raised in relation to complexity, length and property.

I gather that the hon. Member for Southwark, North and Bermondsey, who spoke to amendment No. 208, tabled it five minutes before I did, but we had the same idea of a level playing field. I asked the Minister what might disadvantage the prosecution, and what might disadvantage the defence. Will he explain why subsection (7) does not include the words ''or the defence''?

The amendments partly demonstrate, and I hope that all members of the Committee acknowledge, that the criminal justice system has a problem with juries and long and complex fraud and fraud-related trials. Two recent high-profile cases make that point. The first was the Blue Arrow case in which the Court of Appeal commented that the case had become almost unmanageable and that there was a significant risk of a miscarriage of justice resulting from the volume and complexity of the issues presented to the jury. In the case of Regina v. Levitt in the following year, the trial judge ruled that a substantial body of evidence should be excluded, not because it was irrelevant or inadmissible but because it would be unmanageable for the jury and make the trial unacceptably long.

The hon. Member for Woking asked for evidence. The two cases are part of the evidence, but I also refer him to the Auld report, which he will have read carefully. In paragraphs 173 and 174, Sir Robin Auld clearly and cogently set out the reasons why the change was deemed necessary. Long and complex fraud and similar trials can last for months. The average length of trials prosecuted by the Serious Fraud Office is now about six months. Such trials place an excessive and unreasonable burden on the members of the jury. They also make it difficult to ensure a representative jury. Judges are understandably sympathetic to those seeking to be excused from serving on a long trial on the grounds that they cannot afford to have their working and personal lives disrupted for months on end.

I accept that jury service is an important civic duty, but there must be proper limits to the imposition that it is right to make on jurors' lives. Considerable efforts have been made in the past to assist the courts in managing the trial process in such cases. The Criminal Justice Act 1987 implemented a number of recommendations made by the Roskill Committee, including the establishment of the Serious Fraud Office. The preparatory hearing regimes in the Criminal Justice Act and the Criminal Procedure and Investigations Act 1996, with their emphasis on case management and the presentation of issues to the jury, are working well.

However, there continue to be a few cases, such as the ones that I have just cited—they are only a few and it is important to get the clause in perspective—that are so lengthy and/or complex that they stubbornly the resist the best efforts of all involved to reduce the burden on the jury without imperilling justice. I do not agree with the argument that severing trials is not a bad thing. The need to sever trials, pare down justice and reduce judges in serious fraud and similar trials to make them manageable for the jury means—this is the point at the heart of subsection (4)(a)—that the full criminality in such cases is not exposed, to the detriment of justice. That cannot be right.

That is the answer to the point made by my hon. Friend the Member for Brighton, Kemptown (Dr. Turner). This is not about disadvantaging defendants but about ensuring that the full case is heard and the full extent of the alleged criminality is exposed to the trial's consideration without excessively burdening

juries. I point out that the Home Affairs Committee supported the proposal.

The Minister is making the point that the Government want to change the rules on jury trials because of complex fraud cases. He is trying to make the case that there is a difficulty with such cases. Does he accept that there is scepticism throughout the Committee, because this is not the first time the Government have tried to limit jury trial? This is not the argument that they advanced on previous occasions. Many of us think that this is an attempt to have another bite at the cherry from a different point of view.

Of course I am aware of the scepticism, but neither I nor the Government are responsible for it. All one can do in Committee is to judge the proposal on its merits. I am trying to advance on its merits the case for why the change is sensible. It is a long-standing problem, and as Sir Robin Auld said, it is growing worse. Efforts have been made to address it in the past but the difficulty continues. If the full extent of the alleged criminality cannot be brought out because of the steps taken to make the case manageable for the jury, are the interests of justice served? That is the argument for the change.

I hope that hon. Members will not hear with heavy hearts that I now turn to the first of 17 amendments to clause 37.

The Minister may have forgotten that I asked specific questions about what research the Government have done among the judiciary, the Bar and the Serious Fraud Office on these matters, and how many cases have been discharged because of complexity or length in the past year or two. That would give us some background.

I do not have to hand the answer to the second question about the number of cases; I undertake to look into it and, if that information is available, to provide it to the hon. Gentleman. The answer to his first question is covered extensively, which is why I made particular reference to paragraphs 173 and 174 of the Auld report. Sir Robin Auld describes at considerable length the consultation on the consideration of the case for changing the current arrangements in the criminal justice system over a number of years.

On amendment No. 205, the hon. Member for Southwark, North and Bermondsey recognised that trials without jury may be appropriate in these cases, but he proposes other solutions. It is not clear to me that the problems that I have identified would be significantly more manageable if we went for a jury of eight as opposed to 12. The numbers issue does not go to the heart of the question of the damage that can be done to a trial by seeking to make it digestible for a jury, or of the impact that it has on the lives of jurors themselves. Changing the number of jurors would not address those issues.

There is also a risk that the jurors serving on such cases might be self-selected by virtue of the fact that they were able to do that. That raises a concern about departing from the principle that jurors are randomly

selected from the population local to the Crown court in question. Although no one would claim that the jury system is perfect, its representative nature and that random selection are important considerations. That goes to the heart of the problem, which is why the change is proposed. Those two principles would be compromised by the proposals in amendment No. 205, or by simply saying, ''Never mind—as long as you can find some jurors who are prepared to give up a year or more of their lives, it is okay to carry on.'' I do not accept that argument.

Amendment No. 205 also proposes that the jury should have a number of special advisers—a phrase for which I have particular affection, because of my former employment. The idea is interesting, but as the defence would have no way of examining the advice that the advisers gave the jury in open court, I am not attracted to it.

Amendment No. 237 repeats the ''may'' for ''must'' argument that we had in debating the previous clause. I resist it for the same reasons that I advanced on that occasion.

Amendments Nos. 238 to 240, 206, 241 and 272 are designed to explore the various elements of the conditions that the Bill imposes. I shall set out why subsection (4) has been drafted as it has, because a number of hon. Members drew attention to that. Trials may be exceedingly long without being particularly complex, even in respect of cases involving financial and commercial evidence. They may also be exceedingly complex without being particularly long, although it is fair to say that complexity tends to make a trial longer. The drafting of subsection (4) is concerned with the interplay of the two, because length or complexity, or a combination of both, can produce the problems set out at paragraphs (a) and (b). We need to provide for those cases, but we do not want to risk bringing in other cases inadvertently.

I must confess that I had some difficulty following the argument advanced by the hon. Member for Beaconsfield, that a health and safety case would be caught not only by the provisions of subsection (5). We must remember that subsection (5) is a condition that has to be fulfilled, as is subsection (4). I genuinely cannot see how the case that he gave as an example could apply. Nor was I persuaded by the argument advanced by the hon. Member for Woking about a burglary. As I said, we do not want to bring in other cases inadvertently. That is why the opening words of subsection (4) state quite straightforwardly that the complexity or the length, or both, must be the source of the problem.

There is no question of any implication that juries are not competent to hear cases. Long and complex financial cases are burdensome to everyone involved, but we are talking about cases in which jurors need to be relieved of that burden, because of the complexity and because all other means of alleviating it could diminish the overall justice of the case. Subsection (4)(a) needs to be read in conjunction with subsections (6) and (7). I shall come to my earlier point about the interplay between the two in a moment.

Subsection (4)(a) is intended to address the injustice that can be caused by severing trials, paring down evidence and reducing charges in the interests of making trials more manageable by juries, because justice, not least to the victims, requires the full criminality of these serious crimes to be addressed by the courts. That is not happening satisfactorily at present.

I remind those who tabled the amendments of the high threshold that applies before a judge can conduct these cases without a jury. Subsection (4)(a) is about cases in which it is necessary in the interests of justice for a case to be conducted without a jury, and it is a high test.

The hon. Member for Beaconsfield and others raised concerns about the extent to which clause 37 allows trial without a jury in cases other than those whose length or complexity derives from the sheer volume of purely financial evidence. The hon. Member for Hertsmere wants those cases to be limited to lengthy trials.

The key features that have caused such difficulties with juries in serious fraud cases falling within this narrow category can be a feature of other cases, too: for example, those that involve trafficking or money laundering or VAT-related frauds. The context for such offences is the sophisticated modern commercial and financial world. A common element is the use by defendants of a complicated network of companies, parties and overseas bank accounts to obtain property or launder currency. Their prosecution can necessitate the presentation of vast quantities of complex and technical evidence. In response to the hon. Member for Woking, in cases that fulfil the other requirements, property could include intellectual as well as physical property. As I said, efforts have been made over the years to try to deal with these problems, and the clause has been proposed because of the difficulties that remain, to which I have drawn attention.

On amendment No. 207, the court will be required to bear in mind all the efforts that can be made to make the case manageable for the jury. Subsection (6) requires the judge to consider everything that can reasonably be done to prepare a case for a jury trial before deciding whether, in spite of everyone's best endeavours, a jury trial would not serve the interests of justice or would place an excessive burden on the members of the jury hearing the case. In doing so, the judge will exercise his or her powers under the preparatory hearing regime.

Will the Minister give way?

May I continue? It may help the hon. Gentleman.

I can see the point behind the amendment: the hon. Gentleman wants to be sure that all the options that would allow a jury trial have been tested, but the subsection as drafted provides for that to happen. A judge cannot be satisfied that the conditions for ordering trial without jury under the clause have been met without having regard to the steps that might be taken to reduce the length and complexity of the

trial. However, I cannot agree that the order cannot be made until those steps have been taken, because it is just those steps that have the potential to impair the justice of the case. If the judge is satisfied that the steps can be taken to reduce the length or complexity of the trial to the point where the conditions for judge alone trial are not satisfied, the steps will be taken and the case can be tried by the jury. If the judge thinks, notwithstanding all the reasonable steps that will be taken, that conditions for a judge alone trial will inevitably be satisfied, there is no point in taking those steps to the detriment of the satisfactory conduct of the trial.

Is the Minister saying that the problem is that he believes that a jury cannot understand complex and lengthy trials?

No, that is emphatically not what the Minister is saying, which is why I said so a moment ago. I draw the hon. Gentleman's attention to my remarks. It is about the burden that length and/or complexity creates. In the first instance because of the sheer length of time and the disruption that that imposes on juries—the excessive burden in the wording of subsection (4)(b) and in subsection (4)(a)—the Committee must consider the interplay between the duty of the process to allow the full criminality to be exposed and the damage that having to reduce that criminality to make it manageable for the jury does to the trial process.

We now come to the point in subsection (7) about not disadvantaging the prosecution. I understand that amendment No. 208 is trying to ensure that the interests of the defence are not significantly disadvantaged. However, I would say to the hon. Member for Southwark, North and Bermondsey that the amendment is unnecessary because the judge is already required to ensure that the defendant's right to a fair trial is not compromised in any way. The defendant has many additional guarantees of fairness, not least under the European convention. Of course, the clause provides for rights of appeal against a court order to conduct or continue a trial without a jury, so there is no question of doing anything that would damage the defence.

If the Minister is so satisfied that the judge's obligation is to ensure that the trial is fair, the subsection is unnecessary.

Except that subsection (7) is about disadvantaging the prosecution in the sense that the steps would require the full criminality not to be put before the court. Thus, in order to make their case, the prosecution would want to lay everything out before the court for consideration. By slicing it up or leaving things out, it might be possible to make it more manageable, so as to satisfy the conditions that would allow for jury trial. However, in the process, the cause of the prosecution would be disadvantaged, because it would not be possible to expose the full extent of the criminality. That is why the subsection is there. That consideration does not apply to the defence.

I understand, but I have two points in rebuttal. First, the whole process is triggered only by the prosecution, and secondly, I think that the Minister said something earlier that was in error: it is my understanding that where there are agreed documents or ways of making a précis of the case, they are shown to both counsel and agreed by both sides before being used by the court, so any such methodology would have been agreed between the sides anyway.

On the second point, I hope that I did not say anything in error. I take the point about documents being available, but I am much persuaded by the views that were expressed in the Blue Arrow and Levitt trials, which I mentioned at the beginning of my contribution. They said that, in such cases, one is considering something that is unmanageable. That is why we are having this debate.

As to the hon. Gentleman's other point, I accept that the prosecution apply to initiate the process, but the judge has to consider whether any steps can be taken to obviate the need to hear the trial without a jury. At that point, the prosecution have an interest in saying that such steps could be taken, but that if they were to be, the cause of the prosecution would be disadvantaged because things would be omitted that were important in exposing the full criminality.

It seems to me that the hon. Member for Southwark, North and Bermondsey has a point. The defence come along and ask for trial by jury. The judge then says that the prosecution want trial by judge alone, but that he has considered the matter carefully and has come to the conclusion that it might be possible to have trial by jury if he tinkers with the way in which the indictment is to be tried. The defence counsel then thinks that there may well be a problem about having a fair trial. Surely, at that point, the defence must be included under subsection (7), because at the moment of coming to that decision, it might be that everyone agrees to go back to having trial by judge alone. The option must be included, otherwise it cannot be taken into account.

That is not the case, simply because the whole thing is appealable anyway, so if the defence are unhappy about the decision, they will have the opportunity to appeal it under clause 39.

Amendment No. 254 is about whether there should be a reference to trial length. We considered whether that would be appropriate, but came to the conclusion that it would be inflexible and overly mechanistic. How long is long? We came to the view that such assessments are best left to the courts. That is why the clause is so drafted.

I shall deal quickly with the points. I shall not press my amendment to a vote, because I wish to vote on the clause as a whole. On the Minister's rebuttal of amendment No. 205, I accept that the number of jurors does not go to the heart of the issue. However, if there are eight jurors rather than 12, the matter is less burdensome in the round because it is burdensome on fewer people. I do not accept that having a smaller number of jurors makes them self-selecting. The evidence does not support that view.

The evidence suggests that, when a group of people are empanelled, the cross-section can be just as reasonable, even though some are not comfortable with a long trial. One does not end up with more women or more men, or more older or more younger people, because society as a whole has a sufficient number of adaptable people in it, and it would appear to be able to meet the demands of the criminal justice system. For the reasons that the Minister gave, there are not many lengthy trials. Therefore, although in theory the outcomes are not statistically quite as random, I do not think that in practice the evidence bears that out.

On the point about special advisers, the Minister was in error. Any document produced by anyone in such an advisory capacity could be cleared by both sides. That often happens. If documents are produced to help jurors, they are agreed all round. If a special adviser or some other person assisting the judge produced such a document, I would expect that to happen.

The Minister prayed in aid a couple of well-known cases that became unmanageable. Although I remember the cases—it was merciful that I did not have to follow them in detail—I am not sure whether that was caused by the inability of the criminal justice system to cope or by the prosecution's bad management. I recall that there was some criticism of the way in which the prosecution was managed in those cases. The evidence and the statistics show that the Serious Fraud Office is generally getting much better at managing such matters. About 10 or 15 years ago, the SFO's strike rate of successful convictions was about two in three. In the past five years, it has been more than eight in 10. The number of people working at the SFO has been beefed up. The procedures were reviewed and improved. There were criticisms of the fact that results were not being delivered. The old evidence is not very good evidence, and has been superseded by new evidence.

The fundamental arguments that remain are about amendment No. 208, which refers to subsection (7). The issue concerns whether the law ought to require that the judge not regard any of his assessments as of any disbenefit or benefit to either the prosecution or the defence. I am uncomfortable with, and disappointed by, the fact that the Minister could not find it within himself to accept that ''or the defence'' should be added to subsection (7). I have not seen his papers, but I have a sense that that bit of advice might come under the first category of things to be offered as a concession in times of difficulty. I know how such things work now. There is a first range of concessions, a second raft of concessions, and, as matters proceed to the House of Lords, a third raft of concessions. I have a sense that a bit more pressure of numbers further down the line would produce the change without too much difficulty. I hope that, even though the Minister, quite understandably, speaks to the brief on round 1, rounds 2 and 3 may persuade him and his colleagues that we should do something different. I shall reserve the other matters for later, and although I am not entirely comfortable with the proposals, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

This is a very important clause—one of the most important that we have considered. It is to be contrasted with clause 36, which was important in some ways. In effect, it said that there would be fewer jury trials, but at least it had the merit of giving the defendant the option of trial by judge alone. The real mischief in clause 37 is not that the defendant has that option; it is that the defendant has no option. The mischief is that the prosecution can opt for a trial without jury, no matter what the defendant may want. That is why it is very serious: it is the first clause in the Bill that can properly and purely be said to be attacking the principle of jury trial for a defendant.

It has been a fundamental right for a very long time that a defendant should be able to be tried by a jury. That right is even more important in serious cases. In the most serious cases—and fraud cases are very grave—the defendant should have the right to be judged by a randomly selected jury of his or her peers, not by a single judge. Such offences carry great penalties, and society would feel more content if those charged with the more serious offences that this clause envisages were dealt with by a jury.

Has the Minister persuaded us today that there is a case for this clause to stand part of the Bill? I do not think that he has. It is not as if we had evidence that there is a crying need for long and complex cases to be tried not by a jury but by a judge alone. I ask him again, if he cannot answer me today, to write to me on a series of questions. It was entirely possible for those advising him to anticipate from the amendments what the questions would be and to have briefed him fully in advance so that he could make his case to the Committee.

I shall repeat my questions now. In how many cases have a jury been discharged in the past three or four years as a result of so-called complexity? In how many cases in the past few years have a jury been discharged because of the length of a case? In how many cases has it been impossible for a judge to empanel a jury to hear a case? What specific research have the Government done, never mind anybody else, with those who practise week after week—the SFO, the Bar or the judiciary—in serious fraud cases?

If the Minister could provide arguments today drawn from case after case that has gone wrong or been impossible to complete because of length or complexity, we would recognise that he at least has an argument. Those who think carefully about the matter will realise that this clause should not be allowed to remain in the Bill, because it gives the defendant the message that if the prosecution can persuade the court that a case is complex and lengthy, he will lose the right to trial by jury. No matter what the defendant's rights may have been in the past, it is over—that has gone. What powerful case is there for accepting that?

Who is against the Government on the issue? The Law Society and the General Council of the Bar are

against them. Undoubtedly, the Minister has already read the observations made to the Home Affairs Committee. He is keen to pray in aid that Committee when it supports him, which it does not always do, so I hope that when it does not support him, he will concede the point straight away. As a member of that Committee, my hon. Friend the Member for Witney (Mr. Cameron) may have something to say about this, having been there to hear all the evidence.

I suspect that the Select Committee received mixed signals on the subject, but as its report states, the case against the proposal is a case of principle:

''Many claim that jury trial is the 'fairest' form of trial and therefore ought to be preserved for all cases and particularly for serious cases.''

Peter Rook QC said that there is

''no evidence that juries are not understanding the cases.''

He was making the same point as that made by the hon. Member for Southwark, North and Bermondsey, that the Serious Fraud Office has achieved enormous advances, with a conviction rate now running at 86 per cent.

In his more detailed questions and answers, emphasising that it is worth preserving jury trial, Peter Rook QC said:

''there is no evidence that juries do not do a good and dedicated job in relation to serious fraud. In fact it is somewhat ironic that we are sitting here today discussing this issue because the Serious Fraud Office have made enormous advances in the last ten years and, as you may know, the conviction rate for the last few years is running at 86 per cent. There is no evidence that juries are not understanding the cases, of course the normal issue in fraud is dishonesty.''

He continued:

''Of course there is some inconvenience to jurors in very long cases but, again, I would suggest that is a small price to pay. It seems as though juries accept that inconvenience and indeed carry out their duties with great dedication. It is our concern that we should not depart from this important principle of jury trial for all serious offences on grounds of expediency.''

The case has not been made. Amendments have been tabled in an attempt to tighten up the clause, but the Government have rejected them. The matter of principle, however, remains, and plenty of Labour Members have a strong view about the preservation of jury trial and civil liberties. What sort of country are we in if, in relation to a serious, complex fraud case, the state—for it is the state—can say to the people of this country, who form the jury, ''We are not going to let you look at this, because it is too difficult for you and too long''? That is a shameful position and the reason why we should reject the clause.

I, too, hope that the Committee will reject the clause, which will produce a two-tier justice system, in which certain cases will be dealt with in one way and other cases in another way, but as the hon. Member for Woking said, in this case—and this is fundamentally different from what we were discussing on clause 36—at the instigation of the prosecution. From the point of view of the defendant and the public, that will be perceived as stacking the criminal justice system against the defendant. If the prosecution

make their case, the public will not decide the outcome of the trial.

Furthermore, this category is likely to consist of white-collar crime cases—let us be honest about that. The public should be able to judge white-collar crime in the same way that they judge other sorts of crime, and there is no reason why it should not be judged by the same cross-section of the British public. Indeed, it is important that it is seen to be judged in the same way, otherwise it might look as if there is a preferential bias in the system. Complex fraud cases very often involve professional people from the world of business and finance. If experts and lawyers handle such cases, and there are no lay people on the legal tribunal, it will look as if the professional classes are deciding the outcome.

The clause lends itself to the dangers alluded to by the hon. Member for Boston and Skegness and others. We could end up with a system in which justice is decided, but the public do not necessarily know how it was done, because the debate was confined to experts. The great benefit of the jury system is that it requires people to put matters clearly and to summarise their case. We might add that the clause increases the risk of the defendant not understanding the issue, which can be in no one's interests.

One can over-emphasise the burdens on the jury. In reality, jurors work for eight hours a day, and very often less. That is what most people do in their working lives. Although the job is different, people know that they may be called on to do it. It is part of civic responsibility that one takes the straw that one is given. It may be a short straw, and one may do two weeks and a couple of quick trials, or it may be a long straw. However, we are talking about giving up at most six or nine months out of a whole lifetime to do one's civic duty. Jury service is one of the responsibilities of citizenship. It is not only ''fair and reasonable'' and not too big a price to pay, but beneficial to those who do it, just as being on the lay Bench is. Participating in the democratic process is generally an ennobling and improving experience. Although it may be hard to concentrate during a long trial, I have no strong recollection of people protesting that they were less willing to take part in one or that it was less important to do so—people understand their job.

I endorse the point made by the hon. Member for Woking, that the evidence base for the proposals is weak at best, and possibly non-existent. The Minister prayed in aid two cases, but I think that we accept that they come from a previous generation of case management. There will always be one or two cases that are difficult to manage, but there was no great demand for the proposed changes among jurors, members of the public, the press, groups representing judges and the legal profession or anyone else—there was no great pressure for them. The Minister is right to say that the issue has been examined periodically over the years and that it has been around—of course it has—but the case is weaker now than when the Roskill and other inquiries considered it.

The hon. Member for North Down (Lady Hermon) is probably best placed to understand my next point. If

one is looking to instil confidence in the criminal justice system, one should surely look for more lay participation, not less. It would be unhealthy if the treatment of white-collar crime and financial fraud were subject to most criticism. In constituencies such as mine, where the majority are on low incomes and only a small minority on high incomes, we need people to know that those living in the posh flats receive the same justice system as ordinary people, not a system that differentiates and gives those on 10, 20, 30 times the salary a better chance of getting off.

In the famous first royal butler trial, the question arose whether an application for a public interest immunity certificate had been made. The judge had to decide whether certain evidence should be allowed because it had a prejudicial value. In a civil trial, judges often rule on procedural matters and then move on to matters of fact. The great benefit of the system in criminal trials is that when a case goes into session without the jury while legal argument continues, the judge decides on the legal matters and can be appealed to about them, but the jury decides on the facts.

When judges rule that evidence is inadmissible, people find it difficult to believe—it is one of the great fictions that judges and magistrates go through—that it can be put out of their minds altogether when it comes to adjudicating on the facts. Juries sometimes know that arguments about the evidence were conducted in their absence, but only what is entitled to go before the jury does go before it. On matters with as much national significance as a murder trial, we must be careful not to provide another reason for people to feel that unfairness is built into the criminal justice system.

The arguments in favour of changing the jury system are almost non-existent and outdated, and the arguments against are overwhelming. The public have significant confidence in the jury system—more than in Parliament, local government or, sadly, the police—so we tamper with it at our peril. Changing to a two-tier justice system at the instigation of the prosecution risks undermining the wide public confidence in this aspect of the criminal justice system.

I, too, want to speak against the clause. I oppose it for some of the same reasons and for some additional reasons to those already outlined. Fraud is a serious offence that carries extremely heavy penalties, and the jury system provides the fairest way of reaching a correct decision.

My hon. Friend the Member for Woking spoke about a fundamental lack of research by professionals from both within and without the criminal justice system. The Minister referred to previous cases as precedents, as well as to the Auld report, which set out the arguments for and against jury trials, taking a balanced view without coming down on one side or the other.

I shall paraphrase the various arguments set out in the Auld report in favour of jury trials. First, they are a hallowed democratic institution, enshrining citizens' rights in all cases, including serious and complex

frauds. Secondly, the random nature and selection of juries ensures their fairness and independence. Thirdly, in cases of serious and complex fraud, the question is mostly one of dishonesty: the jury have to decide in the context of the complexity of the alleged financial impropriety whether the individual on trial has been dishonest. I see no evidence that juries are failing in their duty to come up with correct solutions. Fourthly, there is no evidence that juries cannot cope with long and complex cases or that their decisions are contrary to the evidence.

Fifthly—a point made by the hon. Member for Southwark, North and Bermondsey—there is openness and public intelligibility if the parties have to accommodate the jury's newness to the subject matter by presenting their cases in simple and easily digestible form. That is a fundamental point, which I made in the debate on clause 36.

There is no evidence that juries have reached incorrect decisions in serious or complex fraud cases. The statistics from the Serious Fraud Office for 1990–2001 have been mentioned before: 86 per cent. of the cases brought by the SFO have resulted in convictions. There does not seem to be a problem in the criminal justice system when serious fraud cases are being discussed.

I should like to add to my earlier comments about judges. What will happen if the prosecution opt for a judge only trial? Will there be a register of judges' interests. The judge may have been an ex-shareholder of Guinness, or his wife or family may have been. Will there be registers of shareholdings and financial interests of all those who may be called to preside over such cases? I suspect that judges would not wish that to be the case or for it to come out in the open.

I am sorry that the hon. Member for Nottingham, North (Mr. Allen) is not here. I agree with some of what he says. It is essential to create confidence in a criminal justice system by simplifying the legal process and the language that is used. That will certainly not be the case where we have two lawyers and a judge who are experts in their particular financial field. We will get into acronyms, jargon and language that the defendant may not understand, never mind the reporters and the members of the public who should be taking an interest in such serious cases. There is a danger of lawyers talking only in their own language and making the system even more incomprehensible.

Like my hon. Friend the Member for Woking, I am concerned that only the prosecution in this instance have the ability to opt for a judge only trial and not the defendant. That is where the fundamental difference between clauses 36 and 37 arises.

If the defendant wishes to opt, he can do so.

I thank the Minister for clarifying that.

It seems strange potentially to expunge the right to jury trial in these cases, purely on the basis of the inconvenience and the time it may take up for jurors. There seems to be no evidence that juries cannot be put together for complex fraud cases that may take six

months or longer. There also seems no evidence that juries are reaching incorrect decisions or not understanding the complex issues before them. The Minister needs to explain in far greater detail why the clause needs to be a fundamental part of the Bill. While I have listened to him with great interest, and I thought he performed extremely well on previous clauses, he has not made a convincing case today.

Like my hon. Friend, I oppose the Government's moves to limit jury trials in complex cases. I should probably start by declaring a sort of interest. My brother is a criminal barrister who specialises in complex fraud cases. He was on the defence team in the Blue Arrow and Guinness cases. I am ashamed to say that he has even defended one or two former parliamentary colleagues who got themselves into trouble. Having said that, however, he also defended one of the Maxwells, so I can say that he does bat for both sides. If members of the Committee ever get into trouble on that front, I can thoroughly recommend him. If the hon. and learned Member for Redcar is not available, I can tell them where to find him.

The issue was discussed by the Home Affairs Committee. I see that the hon. Member for Bradford, West (Mr. Singh) is here. That Committee tries really hard to reach consensus, and we normally discuss things for a long time. On this issue, however, we could not find agreement. I obviously think that the amendment that we were debating was good, because I tabled it, but I want to share with the Committee what it would do, because it sums up the problems with the clause. The amendment stated:

''We do not accept that a convincing case has been made for removing the right of trial by jury from defendants in complex fraud or financial cases. The requirements of justice should come first; practicalities are important, but secondary issues. In complex cases it must be for the defence, prosecution and judge to crystallise and clarify the issues for the jury. Judge only trials would become complex and technical; justice would not be seen to be done and defendants could be convicted at the end of proceedings that neither they nor the public had fully understood. A clear statement from this Committee that the right to trial by jury should be retained may encourage Governments to cease attempts to undermine the jury system.''

I am sorry that that amendment was not accepted and that the Government did not miraculously stop their assault on the jury system, which it would have saved everyone a lot of time.

I would like to reinforce a couple of points that have already been made. I understand that even the most complex cases normally boil down to a few simple points—for instance, whether the company concerned bought its own shares to support its share price, or whether someone had inside information when dealing in shares. The answer is normally yes or no; it is usually an important crunch point, on which the jury have to decide who is telling the truth. The argument that such cases are too complex for juries to understand is wrong.

I think also that the point about justice being seen to be done and being understood is terribly important. I am neither a lawyer nor a member of the Labour

party, so I feel no shame in quoting the Society of Labour Lawyers, which told the Home Affairs Committee:

''Comprehension is also a particular concern. If fraud were allowed to become the preserve of lawyers alone the language and process of such trials would swiftly become incomprehensible to the rest of society.''

That was put extremely well.

Next is the matter of conviction rates, as cited by the hon. Member for Southwark, North and Bermondsey and others. Peter Rook, chairman of the Criminal Bar Association, spoke about the fact that the Serious Fraud Office had had a bad beginning, but that its conviction rate was now 86 per cent. Why, then, are the Government so desperate to have another go at the jury system?

I come to the thin end of the wedge argument. I have never accused the Minister of using it; he is too gentle and nice to introduce any sort of wedge, let alone the thin end of one. I was not a Member when the two previous attempts were made to limit jury trial. We are now dealing with attempt No. 3. On those previous occasions, completely different arguments were advanced about the cost of the jury system, and about delays in the criminal justice system and the fact that everything took too long.

The Government lost those arguments. Suddenly, we now face a completely different set of arguments. We are being asked to have another go at the jury system with arguments that were not advanced on those previous occasions. I know that one is meant to concentrate on the song rather than the singer. However, on this occasion it seems that we are having to concentrate on the whole band—but certainly not the Minister, who is eminently reasonable—and what the Home Office has been trying to get us to do on that front. It is worth examining the motives.

My hon. Friend the Member for Woking put it brilliantly by saying that before accepting the clause we would want the strongest possible evidence in favour of the Government's case that juries find it difficult to sit for that long and, as a result, that the pool of jurors has become reduced. However, we have heard nothing about the number of trials that have come to an end because jurors were discharged. We have not heard that evidence, and we cannot possibly accept the clause until we have that number and can see whether it has been getting worse or better. We need much more evidence for that.

The Minister seemed to be making two points. One was about the effect on jurors reducing the available pool, but we have not seen any evidence for that. The other was about the full criminality not coming out in court, but we are getting an 86 per cent. conviction rate, so full criminality seems to be coming out in most cases. He mentioned two cases. I have not had time to rush off and look them up in the Library or consult lawyers, but from memory, the defendant in the Levitt case was found guilty. One problem was that the sentence that he received was so woefully inadequate that he ended up making toys in a central

London probation workshop where, if he went now, he would probably be joined by a lot of burglars. The sentence was the problem. I cannot remember all the details of Blue Arrow, but I seem to remember that it was in the early days of the Serious Fraud Office, which did not get its ducks in a row or present its case properly. We need more detail on what went wrong in those cases.

The case about full criminality not being presented, which I did not pick up, is undermined by the fact that in many straightforward criminal trials of two or three charges, there have really been 12 matters, which come out only after the trial and before the sentence. We do not need every example of the fraud. If the prosecution has several good cases, it is good enough for a jury. That happens now, day after day, in both complex and non-complex cases.

Absolutely, and that brings us to the point about complexity. In complex cases, the prosecution have to consider how to boil down the case to explain to the jury in simple terms what the defendant has done wrong, and the defence have to do the same for the opposing case.

I will end on a point of principle. I was concerned that we did not hear a lot about the principle, but my hon. Friend the Member for Woking put it well. I have sat on a jury—many of my colleagues who are barristers will not have had that opportunity—and it is one of the most exciting and interesting things that a member of the public can do. It was just across the road in Marylebone county court. The standard of debate in the jury room, the effort that people put in to try to get it right, and the seriousness with which they took their responsibilities, whether they were old, young, black, white, rich or poor, were impressive. The right to trial by jury is fundamental, particularly for offences that carry long custodial sentences. We are talking about complex and long cases, in which the defendant could go down for a long time. Before we remove the right to trial by jury in those cases, we must hear considerably better arguments than we have heard today.

As I spoke at great length on the details of the various amendments, I do not want to take up too much of the Committee's time. I stayed away from debating principles, because I wanted us to look in detail at the clause. As I said, I felt that it contained many inherent flaws and contradictions, and I still believe that. However, there is an issue of principle, which was eloquently presented by my hon. Friends the Members for Witney and for Boston and Skegness. It is one that I cannot get round.

I have not heard one justification for the clause. We have examined the various clauses and will continue to do so, and various different arguments have been advanced. In the first matter that we examined, it was a case of a defendant's choice, and on jury tampering, there was the argument that if we do not make changes, it might mean that we cannot have a trial. However, on this point, there is no credible justification based on objective evidence that the move is necessary other than for the convenience of

prosecuting authorities. There is no other rational justification for it.

My professional experience is that provided that a jury has been properly warned of the likely length of the trial at the time of empanelling, that some unexpected circumstance does not cause the trial to drag on well past the expected end date, and that the case management has been properly done, there is no difficulty in finding a jury of respectable, common-sense people drawn from a broad cross-section of the community who are able and willing to sit through a case.

Indeed, in lengthy cases in which I have been involved, it has been obvious that the jury has got into the trial. The jurors are enjoying the detail of the case and tend to cohere together in a way that one does not often find in a short trial. It is perfectly obvious that if one looks at the jury box, they are taking a credible interest. Should one or two jurors not take an interest, the jury system deals with that problem through the sheer number of those present on the jury. Prejudices or inattention can be ironed out by the number of jurors who take the decision.

There is no rational justification for the clause. It is a massive attack on the principle of jury trial. The defendant does not request a judge only trial; the application is entirely at the behest of the prosecution. While I was out, the Minister said that he could not see how the clause would apply to health and safety trials. However, I am still not persuaded that the way in which the clause has been worded is not such as to allow for quite surprising examples of trials to fall into that category.

In the Port Ramsgate walkway collapse trial, at which I was the junior prosecuting counsel, I assure the Minister that the trial concerned property—the walkway, the quay and the installations. I assure him too that the trial concerned the financial and commercial arrangements, transactions and records pertaining to the way in which that walkway was installed. That was what the whole trial was about. The wording of subsection (5)(a) goes far beyond a fraud trial. I cannot accept that it can be so confined. In those circumstances, what we are doing is unreasonable and unnecessary, and I hope that the Committee will reject the clause.

I have only two brief points to make. First, I apologise for my absence from today's earlier deliberations. I was attending a funeral in my constituency of a special and unique man called Brian Weedon, who will be greatly missed. However, I am pleased that I have been able to return to Westminster in sufficient time to be able to vote against this particularly pernicious clause.

Secondly, we were joined in the Public Gallery for part of our deliberations by the hon. Member for Streatham (Keith Hill), the Labour party's Deputy Chief Whip.

Order.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 10, Noes 7.

Question accordingly agreed to.

Sitting suspended.

On resuming—