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Below is the text of the speech made by Ivan Lawrence, the then Conservative MP for Burton, in the House of Commons on 13 February 1986.
The Roskill report is splendid, but I have strong reservations about it. Mainly this is because Roskill allocates too much of the blame for fraud to the current procedure for conducting fraud trials and so suggests remedies which are quite unnecessarily radical.
Since more people are convicted in fraud trials than for most other offences, it ought not to be the trial procedure that causes concern. What worries people is that City swindlers go abroad and cannot be extradited back to England, that dishonest City men are given immunity from prosecution if they give evidence before internal, self-regulating City institutions’ own tribunals and that some fraudsters never come to trial because the resources of police manpower, accountancy, expertise and investigative procedures are inadequate to bring them to justice.
Tackling the extradition law and strengthening powers of investigation, establishing a fraud investigation group, and making available more police, legal and accountancy resources for the pursuit of the fraudulent is where the emphasis should lie.
Roskill’s proposals for the improvement of investigation, preparation, presentation at court, training, and staffing resources are desirable and most welcome.
We must pause for deep thought over Roskill’s proposals to take fraud out of the criminal justice system as we know it—a system which is designed to secure the conviction of the guilty by fair means and the acquittal of the innocent. If we are panicked into doing anything which undermines our trust in the legal system as being just, we threaten one of the most important pillars of our society.
I am not sure how useful some of the Roskill recommendations will be. I do not feel strongly about paper committals, but the proposals go in the opposite direction to that which many of us had said should happen —we should use committal proceedings far more to ensure that inadequate cases are thrown out before time and money are wasted further up the ladder.
Pre-trial reviews—the so-called tea parties—are a notorious waste of time and will only work if the legal aid fund becomes so generous that the trial barrister can be guaranteed to attend and the list office can ensure that the trial judge is present. Both are somewhat optimistic expectations.
In a fraud trial, someone is deceived by a false representation into doing something that is against his or her interests. That is often the central element of all sorts of other criminal offences—rape, treason, tax evasion, and bilking a fare or a restaurant bill. Fraud cases are not always the most complex. There are treason, drug and even murder cases where the competence of a jury of ordinary people can be taxed.
How long will it be before what Roskill proposes for fraud will be extended to other complex cases of deception? If the law does not so develop, why not?
Where will be the logic of requiring the disclosure of the defence in one case rather than another? Justice in a commentary upon Roskill puts it this way:
“Why should a defendant accused of deceiving an insurance company into wrongly parting with money be obliged to disclose his defence but not the defendant who has deceived a restaurateur into parting with a meal for which he does not intend to pay or a women into consenting to sexual relations for favours which he does not intend to provide?”
The law must apply evenly and it will not so apply if some of the Roskill proposals are implemented. It will become distorted.
I come to juries. The peremptory challenge may be irritating, although only in cases where there are a large number of defendants can it be used to tailor a jury. To abolish it, will cause all sorts of problems. We are already moving towards tailored juries with jury vetting and a kind of voire dire. If the safety valve of the peremptory challenge goes, there will be more and more challenges for cause in terrorist or gangland trials and the limitations of the challenge for cause will be exposed. There will be pressure for it to be extended. we shall be sliding down the slippery slope to the crazy United States system of jury selection before we know it. How then will the jury system have been improved?
There is another reason. Trials only progress with the co-operation of the accused. They believe the system to be fair because they can challenge a juryman without reason. Deprive a defendant of that right and he will feel frustrated and railroaded by a court which, so he may think, has rigged the jury against him. If the police are allowed to vet the jury, that will be an active fear. For the sake of five minutes delay in court time, some trials will become much more difficult to conduct.
We must think longer and more clearly about the abolition of trial by jury in complex fraud cases than about anything else. I share most of the views that have been expressed by colleagues on both sides of the House against abolition and I shall not repeat them.
However, I do recognise the attractiveness of the proposal for special tribunals for they will speed up proceedings. A jury may very well understand a fraud trial, but the point is that it will take many days to explain the balance sheet and all the procedures so that they do understand it. A special tribunal would be able to work overnight, understand the case and dispatch the trial with greater speed. Furthermore, innocent people might well welcome specialist tribunals rather than a jury in a complex case. The standards of probity involved in City institutions might not be readily understood by the ordinary man in the street. Such defendants might prefer to have a special tribunal.
I would rather that juries stay as they are. If we do give way to pressure to have such tribunals may I suggest that the Government should set up a pilot scheme for such tribunals which should operate for two years. A defendant should have the option of such a tribunal. If it were shown to produce satisfactory results for innocent defendants, the objections to the abolition of the jury from those who are worried that it would produce a procedure weighted against the accused would be dispelled.
Finally, there is no point in catching fraudsters arid convicting them if there is no deterrent in the sentence they receive. Justice states:
“Sentences are far too lenient and the proceeds of crime are rarely recovered. Fraud, like other varieties of criminal conduct, will only diminish once those who perpetrate it realise that no profit is to be gained from it.”
The Roskill report was not empowered to consider the consequences of conviction. Should we not at the very least be strengthening the powers of the court so that they may confiscate the defendant’s property which could be reasonably attributable to the proceeds of fraud? That is what the Hodgson committee recommended and that is what the Government are currently implementing in its Drug Trafficking Offences Bill. We should do the same in fraud cases.
Below is the text of the speech made by Derek Spencer, the then Conservative MP for Leicester South, in the House of Commons on 13 February 1986.
I wish to make five points. The first concerns committal proceedings. The Psalmist said:
“One day in my courts is better than a thousand.”
However, when I sat through 80 days of committal proceedings at the Lambeth magistrates court, I felt that one day in court was like a thousand.
The way in which contemporary committal proceedings are conducted is, for the most part, entirely futile. They are expensive and I support the Roskill committee and the Royal Commission on Criminal Procedure in saying goodbye to all that.
My second point concerns the desirability of investigation and co-ordination. Without doubt it is desirable. In the Richmond Rendezvous case part of the inquiry was conducted by officers of the Customs and Excise who dealt with the value added tax aspects of the case. The remainder of the case was dealt with by officers from the Inland Revenue who dealt with PAYE and schedule D. There were two investigating officers, two sets of solicitors and two sets of instructions. Each party arranged themselves on opposite sides of my table and glowered at each other with professional jealousy. It is time to end all that.
My third point relates to the abolition of jury trial. In a sentence I would say to the Government, “Forget about abolishing jury trial and forget it straight away.”
My fourth point concerns the conduct of the trial. This is where the most speedy action can be taken. There is much that the judges can do by displaying an aggressive attitude during pre-trial reviews. Severance in appropriate cases works wonders. I am convinced that we must compel disclosure by the defence of their defence. We have abolished trial by combat, but perpetuate trial by ambush. There is nothing to justify the prolongation of the right to silence into the trial. That is consistent neither with common sense nor morality.
My fifth point relates to extradition. Many of the problems of fraud concern extradition. Mr. Pepperel, in the London and County bank case, was extradited from West Germany, and Mr. Caplan so used the judicial process in America that the energetic efforts of the Director of Public Prosecutions were not able to bring him back to this country. That is regrettable, but unfortunately it happened.
Although the report raises many points of law, the most important point is a political point that requires action, and we ignore that at our peril.
Below is the text of the speech made by Richard Hickmet, the then Conservative MP for Glanford and Scunthorpe, in the House of Commons on 13 February 1986.
If the proposals in the report are adopted, they will represent a fundamental overhaul of court room procedure designed to improve investigation, preparation and presentation of fraud cases. Issues will be more readily identified through the pre-trial review procedure. Presentation of cases will be clearer and more easy to understand and rules of evidence will be modernised and made more effective. Trials will be shorter and will come to the Crown court more quickly.
However, I have grave misgivings about the recommendations about the jury system. Jurors in all criminal cases should be able to read, write and to be numerate, let alone speak English. That proposition is so self-evident that no justification is needed. However, it is a remarkable thing that in fraud cases it is not unusual when the jury is empanelled to discover that some jurors cannot read.
Apart from the welcome recommendations on the literacy and numeracy of jurors, the report contains a detailed attack on the jury system. It attacks not only the challenging of jurors by counsel, but the hearing of complex fraud trials by juries and other general matters. Perhaps the system of challenging juries has been abused. It is not unusual for counsel to give the impression that they are challenging jurors simply to obtain a jury that is weighted more towards the acquittal of the defendant than a just verdict.
The report makes a comprehensive attack on the jury system and then seeks to say that, for the reasons set out in the report and because complex fraud trials are difficult for jurors to follow, trials which fall within certain guidelines should no longer be tried by judge and jury, only by judge and two lay assessors in the form of a fraud trials tribunal. We should welcome the fact that Mr. Walter Merricks was a member of the commission and produced his minority report.
Lord Justice Roskill said that trial by a jury selected at random is a major contributing factor in preventing fraud cases from being brought to trial. He said that the difficulty of presenting a complex case often results in a decision to opt for a less serious charge. There is no evidence for those two propositions. There is no evidence to show that a jury cannot understand a complex financial fraud case if it does not know the background, let alone the dishonest elements.
The minority report shows that, in 1983, of the 179 cases referred to the fraud division of the Director of Public Prosecutions for a decision on prosecution, only one case was not prosecuted on the grounds of complexity. That occurred on the advice of independent counsel and was an intellectual property case. Of the yearly average of 10 long fraud cases tried at the Old Bailey between 1979 and 1983, almost none was a complex fraud case that would be covered by the guidelines. There were carbon paper frauds, Spanish villa frauds and estate agent frauds, none of which could be defined as complex fraud cases.
The thrust of the Commission’s recommendations is to reform procedure, presentation and rules of evidence so that that type of case can be understood by a jury. It is illogical to make those recommendations, and then to say, “But the jury system in those cases should be removed in any event.”
We are told that defendants are no longer tried by juries selected at random because of the exclusions and that, accordingly, those who fill the jury box are not a true cross-section of the public. It is my impression that the vast majority of people are not doctors, Members of Parliament, policemen or clergymen. The vast number of people who enter jury boxes represent society as a whole.
The report also argues that, because the vast majority of legal cases in England and Wales are heard by skilled people, whether in the magistrates courts, county courts, Queen’s Bench courts or even in front of the 60 specialist tribunals, including those on immigration and social benefits, it is sentimental or illogical to retain jury trials in the Crown court. That is an extraordinary proposition. How many of those tribunals have the power to send a man to prison for life or, indeed, for more than one year? Not one. How many of those tribunals, with the exception of magistrates courts, have the power to find a man guilty of a criminal offence? Not one. How many defendants at the magistrates courts, when given the choice, opt for trial before the magistrates court rather than trial by jury? That represents many hundreds of thousands of cases each year.
The report makes serious and damaging attacks on juries. It is essential, as Mr. Merricks said in his minority report, that the general public, as represented by the jury system and the press, should be able to understand complex fraud cases. The challenge to the criminal justice system must be to make such cases understandable to the general public and the press. No man should be sent to prison for a period of up to life imprisonment without being tried by a jury. As Mr. Merricks said powerfully, why should a man have the right to trial by jury because he commits an armed robbery with a sawn-off shotgun and steals £1 million, whereas if he used a computer to carry out a complex fraud, that right could be removed? I welcome the report’s recommendations about the investigation and presentation of cases but I hope that my right hon. Friend will reject the suggestion that jury trials in those case should be removed.
Below is the text of the speech made by Patrick Ground, the then Conservative MP for Feltham and Heston, in the House of Commons on 13 February 1986.
I agree with those hon. Members who have said that most of the Roskill recommendations in the first six chapters of the report should be implemented. I especially mention the proposal for a fraud commission, case controllers and the importance of legal advice at an early stage of the investigation.
There is much scope for sensible relaxations of the rules of evidence and for greater measures of disclosure. I agree with the comments on that matter of my right hon. and learned Friend the Member for Warrington, South (Mr. Carlisle). The position mentioned by the hon. Member for St. Helens, South (Mr. Bermingham), could be coped with within the proposals. The right hon. Member for Manchester, Gorton (Mr. Kaufman) referred to better facilities for judges. I remind my right hon. Friend the Secretary of State of what was said by Lord Edmund-Davies in the debate in the other place about facilities for juries, which is especially important when considering jury trials.
Lord Devlin said that the right to trial by jury has come to be regarded as a constitutional right for trials on serious criminal charges. Recently, several leading judges have suggested that jury trials should be restricted in cases of less serious crime. Lord Roskill suggests a substantial restriction at the serious end of the criminal scale. I agree with the hon. Member for Caithness and Sutherland (Mr. Maclennan) that the majority of people in Britain believe that juries bring a valuable element of good sense and human experience to the legal system. That is generally appreciated throughout the country.
If a major change is to be made to the jury system, such a change should not be made as a result of a side wind in this report, but as a result of a thorough investigation ranging across the board of jury trials. It would be wrong of the Government to seek to restrict jury -trials on the basis of a report on fraud.
There are more serious and detailed reasons in the report that should lead the Government not to accept the recommendations in relation to juries. The only research in the report is mentioned in paragraph 8.11, which shows that
“in almost six cases out of seven there was no serious complaint about the jury’s verdict from most of the participants contacted. None of the questionable acquittals in their sample of cases involved complex fraud and very few were the result of lengthy or involved trials.”
Regarding the operation of the jury system in fraud cases, paragraph 8.12 of the report states:
“We think that, in general, the public believes that juries provide a satisfactory method of trial and this view is held by many of our witnesses.”
Another factor to be considered is the number of trials that fall in the category defined in the Roskill report. It is clear from paragraph 8.3 that there are relatively few cases involved. It states:
“In the five years from 1979 to 1983 there was a yearly average of 26 fraud trials each lasting for longer than 20 working days … The longest single fraud trial lasted 137 working days.”
The number of trials and the length of cases are inadequate to justify a radical change in the jury system, especially when the perception of the performance of juries is that generally they work satisfactorily.
We have sometimes received complaints about judges and lawyers, but the number of complaints by members of the public, who have served on juries, about their experience of the length and hardship of trials is small in relation to other complaints about the Legal system. That demonstrates the fact that far from being overwhelmed by the so-called hardships mentioned in the report, most members of the public who are required on jury service, even on long trials, treat them as a duty of citizenship and a contribution that they are willing to make to the administration of justice.
Below is the text of the speech made by Ian Percival, the then Conservative MP for Southport, in the House of Commons on 13 February 1986.
I hope to respond immediately to that plea. The House owes an enormous debt to Lord Roskill and his colleagues for the time and expertise put into producing the report. We also owe a considerable debt to Mr. Walter Merricks. I say that not merely because he is my wife’s nephew, but for two other reasons. I once made a dissenting report and I know what it means to do that. The second and the main reason is that I agree with so much of what he says. He will know that that has not always been the case.
I want to concentrate on making one point arising from the report. The two principal features in the report are pretrial preparation and whether we should do away with juries in fraud cases. They are intimately bound up with one another. I think that there are constitutional and philosophical reasons for keeping jury trials in cases where the consequences may be serious for the accused. I also think that there are both emotional and logical reasons for keeping juries in such cases.
However, there is an even better, and practical, reason why we should not try to implement that recommendation at the moment. That is the fundamental reason put forward by the Roskill committee for abolishing juries, namely the complexity of certain fraud trials. Looking at it practically, one of the major reasons why cases are so complicated when they get to trial is that they have not been properly prepared. I do not say that as a criticism of anybody involved. At every stage, those who have to prepare the trials are having to overcome practical obstacles that would defeat most people. It is a miracle that some of the cases come to trial in as orderly fashion as they do.
I want to support with all the emphasis that I can the recommendation that we should look urgently at preparations for trial—all pre-trial stages—and here we have a large number of positive recommendations. I doubt whether everybody would agree with every one of them but I am sure that everybody would agree that that is what we have to look at first. I believe that the Criminal Bar Association also has some further proposals in that area.
My plea to my right hon. and hon. Friends on the Front Bench is to concentrate on that part of the report and get on with it, with all the assistance possible. I am sure that both sides of the profession will give their help. A lot of advice might also be obtained from the accountants, many of whom are now specialising in doing the groundwork in preparing cases for a fraud trial. Let us see how far we can get in simplifying the trial itself before we contemplate doing away with what, after all, has been regarded in this country for a very long time, as one of the principal safeguards of the liberty of the subject. I do not say that that tradition can justify sticking with one system for ever in all cases, but it should make us slow in abolishing it and especially abolishing it in any trial where the consequences for the accused of being found guilty may be very serious.
My plea to my right hon. and hon. Friends is get on with it. I am not just supporting the recommendations concerning pre-trial matters. My plea is, let us get on with them, with considering and implementing the improvements we can make in pre-trial preparation just as quickly as possible. The beauty of it is that hardly any of that needs legislation. All that it needs is the will to get on with it. Let us leave other considerations about juries until we have tackled this first and done something about it.
Below is the text of the speech made by Mark Carlisle, the then Conservative MP for Warrington South, in the House of Commons on 13 February 1986.
I hope that the right hon. Member for Manchester, Gorton (Mr. Kaufman) will forgive me if I do not follow his latter remarks, but I wish to be brief. Many of the recommendations of the Roskill report go far beyond the ambit of serious fraud crimes, and it is a vital report.
We are right to be worried about fraud. The feeling that major fraud may go undetected, unprosecuted or unpunished would do immense damage to the international standing of our institutions, and it worries many people greatly. We are also right to be worried about what is happening at present in the investigation, prosecution and trial of cases. We should be worried that many people seem to disappear to other countries before we have an opportunity to bring them to trial, that some cases may not be brought to trial because of delay and their complexity and that there is delay in bringing cases to trial. Above all, we should be worried about the length, complexity and expense of trials.
I believe that Lord Roskill is right when he says that the present system is inadequate to bring the perpetrators of fraud effectively and expeditiously to trial, and that the opportunities to create delay and abuse within the system are too great to be acceptable. I suggest that the test against which this report should be judged is to ask whether its proposals reduce complexity. Do they reduce delay, or the length and expense of trials? Do they ensure expedition and efficiency? Those are the tests against which I propose to judge this report. I believe that those are the aims of many of the Roskill recommendations.
It is inevitable that there has been much public comment on the proposals on juries, and I shall state my views on that later.
I welcome particularly the proposals on pre-prosecution. It is important for counsel to be involved at an early stage, and on a full-time basis, if delay is to be avoided. I say that as someone who is in chambers where there are a fair number of Treasury counsel. I have seen the piles of paper which they are required to look through out of court hours, having been involved in other cases during the day. That is one of the practical problems that lead to delay.
I welcome Lord Roskill’s proposals on committal proceedings. Fraud committal proceedings are expensive. They cause delay. I believe that they are largely unnecessary, and they can, by delay, be the subject of abuse.
For many years, most committals have been by means of paper committals. That system has worked well, but the time has come to look at the whole question of the right to full committal proceedings. If we are serious in our attempt to accept those recommendations which are aimed at reducing delay and complexity, and at speeding up the system, the replacement of committals by the system of a transfer certificate, with the right of application for discharge by the defendant through the trial judge, with or without the right of some form of limited cross-examination, is a sensible proposal which we should be willing to accept.
The proposals about evidence are even more important. I commend to my right hon. Friend the Home Secretary the speech made my Lord Griffiths in another place. Frankly, I see no reason why the judge should not have the power to allow copies of documents, rather than originals, to be introduced. I see no reason why documents should not be allowed in certain cases to be evidence of the truth of the contents, without the necessity of calling the maker.
I believe that our rules of evidence are outmoded and that we, as lawyers, should not be unwilling to review these rules and change them where necessary. It is important that we should be able to get evidence from abroad taken on commission in cases of international crimes, as the report recommends. I believe that the proposals on evidence will go a long way towards meeting the proposals on mounting a prosecution and proving a fraud, and will help to shorten substantially, and thereby reduce, the complexity and nature of trials.
Most important of all are those proposals in chapter 6 of the report, beginning with pre-trial review. A pre-trial review is often of little value, and might well be described as a farce. It takes place before a judge, who is not the judge who will try the case, and usually with different counsel from those who will be involved in the case. The system must be improved if we are to use it as a means of simplifying the subsequent trial. The proposals by Lord Roskill go a long way towards that end.
Proper preparatory work, which is fairly remunerative is needed. I believe — I disagree with what the right hon. Member for Gorton said, although I agree with much of what he said about the report itself—that we have to accept the proposals in the report on the disclosure at an early stage of the outline of the case for the defence. That is not such a radical recommendation as might be thought. We have been doing that for some years with alibi defence and, so far as I know, we have done so without concern. If we are serious about tackling the problems of delay and complexity which the report has identified, we must be prepared to accept some radical departures from certain rules that we have accepted in the past as right for the conduct of criminal trials.
I welcome the proposals on the requirement to disclose the outline of the defence and the requirement for the defendant to admit facts in advance. If that is achieved, trials can be shortened and simplified, and the things that concern many of us in the report need not be considered. If the proposals that I have mentioned so far are implemented, they will go to the heart of the problem and do more than anything else to simplify, speed up and shorten the trial procedure, and thus ensure that justice is done.
I deal now with the comments on juries. I should not be sorry to see the peremptory challenge disappear. For the first 10 years of my life at the Bar I did not know whether that existed. I never heard it used on circuit, where I believe I was involved in a substantial junior criminal practice. The fashion of challenging juries came about after I went to the Old Bailey. I know that I express a minority view, and that many of my colleagues believe that they should have the right to challenge juries, but I have always stuck firmly to the view that although one has a right to be tried by one’s peers, one does not have the right to select who those peers will be.
I have no doubt that while it is right and proper that defence counsel, so long as the power exists, should use the right of challenge, and should be responsible for using it, in the interests of their clients, the fact is that it can be used to tip the balance in favour of the defendant in an unreasonable way. I should not be sorry to see it go.
Finally, I turn to a more fundamental proposal—that to change the mode of trial. I agree with almost everything that was said by the right hon. Member for Gorton, although he was a bit unfair to the committee, because the report makes it clear that the proposal is limited to complex fraud trials.
I commend to hon. Members the debate on this matter in the other House. It is interesting to note that the Law Lords seemed to favour the abolition of trial by jury, and that the one layman who spoke did so passionately in favour of retaining trial by jury. The arguments set out in the Roskill report do not justify a change of this nature.
The right hon. Member for Gorton referred to the paper published by the criminal law committee of the Law Society and the Criminal Bar Association, which said that to do away with juries would raise grave constitutional issues. I do not believe that the case for ignoring those grave constitutional issues is made out in the report. I prefer the arguments advanced by Mr. Walter Merricks in his note of dissent. The evidence of those who were involved, both on the side of the prosecution and of the defence, the police and others, was in favour of retaining juries. I do not like the idea of changing the system so that people are sent to prison for long periods without first going through the accepted method of trial which we have always used.
I suggest to my right hon. Friend the Home Secretary that it is unnecessary at this stage to pursue that recommendation. I believe that there is no evidence that juries are not working. There is certainly no serious evidence that they unduly acquit. I do not believe that there is any evidence that cases are not being brought to trial because of their complexity, as the right hon. Member for Gorton said. The real objection to jurors in these fraud cases is the unbearable strain imposed on jurors by the length and complexity of the case that they are asked to try.
I believe that, sensibly used, the report’s other recommendations will lead to greater simplification and understanding of the issues involved and shorter trials. I think, therefore that one objection to the continuation of jury trial—the unbearable strain on juries, as trials of between four months and six months in the Old Bailey make clear—and the raison d’etre for the recommendation to abolish juries are removed.
I was delighted at the tenor of the speech by my right hon. Friend the Home Secretary. I hope that he is willing to be bold with regard to the other proposals. I hope that he will stand up to the objections that may be made by members of my profession, although we must obviously look at the details. I hope also that he will turn his face against the proposal to do away with juries as a means of trial.
Below is the text of the speech made by Gerald Kaufman, the then Shadow Home Secretary, in the House of Commons on 13 February 1986.
The debate comes at at time when public concern about fraud is greater than it has ever been. A batch of unwholesome City scandals has justifiably aroused that concern. But, even without Johnson Matthey, without Lloyd’s and without the unsavoury aromas surrounding Westland share dealings, the extent of fraud and its increasing dimensions would certainly justify the disquiet among all sections of the population and in all parts of the country, especially among the small savers, who can least bear the irrecoverable loss and even ruin that fraud inflicts.
Mr. Doiran Williams, the Assistant Director of Public Prosecutions, in a rare public announcement, has voiced the feelings of millions in describing fraud as
“a significant destructive factor in our national life.”
In the outstanding report which we are debating this evening, Lord Roskill and his colleagues declare starkly:
“in the United Kingdom. fraud is a growth industry”.
The report goes on to warn:
“We hope that the gravity of this situation will not be underestimated. Fraud is posing a threat to London as a financial centre and to the considerable volume of invisible exports which represents a major factor in the economy of the country.”
The sums involved are enormous. A few days ago it was reported in the press that a Home Office survey soon to be published estimates that the loss to the United Kingdom financial community from fraud runs annually at £750 million.
Another study calculates that British companies are now being defrauded of £3 billion or more a year. A survey conducted by the accountants Ernst and Whinney has discovered that the average loss per company from fraud amounts to £6,156 a year, which again comes to around £3 billion nationally.
Let us be clear that these are not abstract losses which can easily be borne with a shrug. They are huge sums of money which could have been directed to constructive investment and to the creation of jobs. The extent of this plague of fraud is very wide. Fifty-six per cent. of companies feel that they have experienced fraud in the past, are experiencing it now or may be vulnerable to fraud in the future. Sixteen per cent. suspect that their companies may be a victim of fraud now, and only 1 per cent. of companies surveyed believe that fraud has decreased in the past five years. No fewer than 54 per cent. feel that it has increased. The latest crime statistics show that in the 12 months to September 1985 the increase in the crimes of fraud and forgery was 9·8 per cent. Among all categories of crime, this increase was second only to the 9·9 per cent. in robbery, and there were six times as many frauds as robberies. Those were only the crimes which were notified. Many more frauds are never brought to the attention of the authorities.
Even if all frauds were reported, the authorities are simply not equipped to deal adequately with them. For one thing, the pursuit of fraud is fragmented among far too many organisations whose co-ordination, where it exists at all, is often makeshift.
Between 1978 and 1985 the joint strength of the Metropolitan and City of London fraud squads itself was steadily rising. The Roskill report informs us that in 1983 the Metropolitan and City police company fraud department had its strength deliberately reduced by 10 per cent. because more officers were needed to combat street crimes and burglaries, a point to which the hon. Member for Bury St. Edmunds (Sir E. Griffiths) drew attention. Over the country as a whole, as the Roskill report points out, the strength of the fraud squads represents approximately 0·5 per cent. — one two-hundredth—of total police manpower.
For England and Wales, the fraud squad totals fewer than 600. We should compare that with nearly 300 in Hong Kong, which has only one twelfth of our population and therefore proportionately six times as many police pursuing fraud. What is more, the London fraud squad personnel are constantly changing, and it is said that it is common for an officer to be promoted in the middle of a complicated case to traffic or diplomatic protection.
It is no wonder that Mr. Doiran Williams, the Assistant Director of Public Prosecutions whom I have already quoted and who controls the fraud investigation group, recently complained that all who work in the fraud divisions struggle with what he called a “quite monstrous case load”. From start to finish, the process of pursuing fraud is bedevilled by a shortage of resources. To me, one of the most shocking revelations is to be found in paragraph 6.34 of the report, which says:
“It is important, in our view, for the judge who is studying a voluminous set of papers in a fraud case out of court to be able to dictate the crucial points in the case so that they can be set out in typewritten form for his later benefit. We understand that the secretarial facilities (typists. audio equipment) available to judges at the Central Criminal Court and elsewhere are seriously inadequate and make little or no allowance for this kind of work to be done. This is a matter of concern.”
A matter of concern! I admire Lord Roskill’s measured language. It is nothing short of a scandal. It is lamentable that a major report such as this has to be reduced to such de minimis recommendations as the recommendation that judges should be given adequate secretarial facilities. That is only one out of 112 recommendations in this definitive document.
It is a tribute to the thorough and thoughtful work of Lord Roskill and his colleagues that no more than a handful of the recommendations are controversial. My right hon. and learned Friend the Member for Aberavon (Mr. Morris) will, with his special expertise, discuss many of these matters if he catches your eye, Mr. Deputy Speaker. Those which give rise to some concern and which I feel should be mentioned now include recommendation 58, which says:
“The law should be altered so that the defence are required to outline in writing the nature of their case at the preparatory hearing stage.”
This suggestion is made the more worrying by recommendation 59(i), which says:
“The prosecution and the judge should be entitled to comment at the trial, and the jury should be entitled to take account of and draw any appropriate inference from the defendant’s failure to disclose a particular line of defence on which he relies at the trial.”
Mr. Gerald Bermingham (St. Helens, South)
Does my right hon. Friend agree that it would be highly prejudicial and completely contrary to the whole of our judicial system if, in a case in which the defence did not discover its line of defence until after the preparatory hearing, adverse comments could be made at the trial?
My hon. Friend has a legal experience that is denied to me. I accept and am impressed by what he says. My view, as a non-lawyer, when I read the report was that this provision was potentially dangerously prejudicial and I hope that it will be examined with great care before the Government contemplate proceeding with it.
I am also worried by recommendation 78, which is that the defendant’s right of peremptory challenge of the jury would be abolished together with the prosecution’s right to stand by for the Crown. That needs the most gingerly consideration.
The recommendation that has aroused the greatest controversy is 82, to which the Home Secretary referred, and which states:
“For complex fraud cases falling within certain Guidelines, trial by a judge and two lay members should replace trial by judge and jury.”
I have already said, and I shall plainly say again now, that this recommendation is not acceptable to the Opposition. We want fraudsters to be convicted and we want them to be punished. We would like the worst to be punished in an exemplary way, but we believe that they should he fairly punished after being fairly tried and clearly found guilty.
One of the things that worries us most is the concept which is introduced by the majority procedure on the proposed tribunal of reasoned acquittal. The concept of reasoned acquittal is a very dangerous innovation, and I very much hope that it will not be proceeded with. Our objections are best summed up in the note of dissent by Mr. Walter Merricks, which are published at the end of the report. He refers to the constitutional argument advanced by Lord Devlin, among others, that the right to jury trial has become so much of an institution that it has become more or less a convention of the constitution that citizens should not be liable to more than a limited term of imprisonment otherwise than on a jury verdict. He said:
“The burden is on those who wish to alter the system of jury trial, not simply because that is the present system, but because the right of the citizen not to be liable to incarceration for a lengthy period (the maximum sentence for conspiracy to defraud is life imprisonment) other than on a jury verdict has become a civic right which should only be dislodged for good cause.”
The Home Secretary has said that the problem of definition of complex cases is difficult. The report draws attention to the fact that, last year, in Hong Kong, these difficulties were revealed and had to be discussed when it was there proposed to try complex commercial crimes without a jury.
Moreover, as Mr. Merricks says, there is little or no evidence to suggest that complexity is a deterrent to prosecution. Figures for 1983 provided by the Director of Public Prosecutions show that, out of 71 cases in which it was decided not to prosecute, only one failure to prosecute was due to complexity.
It seems that, in that case, cost was just as important. There is a danger that, with no incentive to simplify, trial before only a judge and expert lay members would involve more complexities, not fewer, and that that would work to the disadvantage of the accused as well as to the bewilderment of the public.
Even more worrying is the possibility of the removal of the right to a jury trial being extended from fraud cases to others. The Roskill report states frankly:
“We realise that if our recommendations are adopted in fraud cases it would be logical for some of them to apply in all criminal cases … we have been careful to ensure that we were not proposing changes in law and procedure which we would not be prepared to see applied to other types of criminal case.”
In Monday’s debate in the other place, for the Home Office, Lord Glenarthur rather assuringly said:
“I should make it clear that we do not consider this recommendation”—
to dispense with a jury in complex fraud cases—
“to have any application wider than the complex fraud cases which the committee had in mind.” —[Official Report, House of Lords, 10 February 1986; Vol. 471, c. 72.]
That was not the impression given by the Home Secretary in his statement last month when he said:
“Some of the recommendations may well be applicable in other sectors of the criminal law besides fraud.”—[Official Report, 14 January 1986; Vol. 89, c. 928.]
Mr. Hurd rose—
I may save the right hon. Gentleman making an intervention, but if he wishes to make it I shall give way. Tonight, he appeared to have shifted from that stance towards that given by Lord Glenarthur. If so, it is welcome and the right hon. Gentleman need not rise from his relaxed position to reiterate it. Whatever assurances we receive, I believe we should heed the important warning in the joint statement issued by the Criminal Bar Association and the Law Society Criminal Law Committee. The warning they give is of great importance:
“History shows that constitutional changes based upon particular problems are seldom correct and often regretted.”
I am sure that the right hon. Gentleman is aware that the report itself makes it clear that, although some of its other recommendations might be applied to sectors outside fraud, that one was argued simply on the basis of complex fraud. That has always been my position.
I am glad that the right hon. Gentleman has said that. I had the privilege—I shall not go so far as to say the pleasure, although I do not mean that as a criticism of the literary style — of reading the report from beginning to end. Of course I saw that. I also saw the two quotations which I felt it right to make.
The committee did not make any caveat or exclusion in paragraph 1.5 when it said:
“if our recommendations are adopted in fraud cases it would be logical for some of them to apply in all criminal cases … we have been careful to ensure that we were not proposing changes in law and procedure which we would not be prepared to see applied to other types of criminal case.”
It is important to get it clear because we are opposed to the Government proceeding along that path. We do not believe that it is a proper and acceptable change. If they do so, it is very important indeed for it to be made clear that it is a unique change even though my right hon. and learned Friend the Member for Aberavon has already intimated in an intervention that it would be illogical.
Mr. Richard Hickmet (Glanford and Scunthorpe)
Whether or not the recommendation about jury trials is confined to complex fraud cases, no doubt the right hon. Gentleman will be concerned with the final sentence in paragraph 8.22:
“Society appears to have an attachment to jury trial which is emotional or sentimental rather than logical.”
I accept that completely. There is logic to a jury trial, but in a democracy based upon consent, emotion and sentiment have an important place. I warn the Conservative party that far too often it makes the mistake of pursuing the path of tidy logic against possibly fuzzy public sentiment. Fuzzy public sentiment is important in a consenting democracy.
The right hon. Gentleman has made precisely the point which I was endeavouring to put to him. The statement in that paragraph is extremely dangerous. I agree with the manner in which the right hon. Gentleman has analysed it and despatched it. It is a most dangerous statement with which I hope the Home Secretary does not agree.
Then we are pals together and that is all right.
I sum up my argument at this stage by advising the Government to steer clear of that proposal. If they do, I believe that they will have the support of most hon. Members on both sides of the House.
Mr. Ivan Lawrence (Burton)
Since he is as concerned as everyone else that the system should not be unfair, has the right hon. Gentleman considered the possibility that some accused people in very complex fraud trials involving, for example, City institutions may be worried that juries may not be able to understand the matter and may think that a special tribunal could understand it? In very complicated trials, might there not be an argument, for the protection of the innocent individual, that he should be able to choose, if he wished, a specialist tribunal in which he had more confidence than a jury? Has the right hon. Gentleman considered that and has he ruled out all possibilities of having a special tribunal even in such circumstances?
If I were to go to trial for any offence, I am sure that I would cast around and try to decide the best way to be acquitted. But we do not base jury trial on subjective approaches in individual cases. I wonder whether, before his trial started, Mr. Ponting believed that he would be tried fairly by a jury. I wonder too if he believed that when it was decided, rightly in my view, by the Government to make available the extremely complex document, the “crown jewels”, for the jury to consider. The jury considered it and came to a conclusion with which I agree. Hon. Members may make an ex parte judgment, but we are considering the general question of the rightness of jury trials in cases where people are liable to long terms of imprisonment. On that I do not wish to depart from the views that I have put to the House. The proportion of my speech on those matters has been lengthened by the interventions, but I do not regret that.
Dozens—scores indeed—of the Roskill recommendations can usefully be implemented by the Government with the support of the Labour party and no doubt with the support of Conservative Members. For example, it is plainly absurd that the pursuit of fraud should be split among 47 organisations, co ordinated imperfectly where it is co-ordinated at all.
I welcome especially the recommendations to examine the creation of a new unified organisation responsible for all the functions of detection, investigation and prosecution of serious fraud and, meanwhile at any rate, the establishment of a fraud commission. The recommended appointment of a case controller for each serious fraud case makes obvious sense, as does the provision of more expert accounting staff for the Director of Public Prosecutions and police fraud squads.
We also support nomination of a trial judge at an early stage after transfer or committal to a Crown court and the provision of adequate time for the judge to familiarise himself with the case before the preparatory hearing. Again, speaking as a layman and referring back to the passage about secretarial facilities for judges, I am astounded that such facilities are not already available. It shows the makeshift way in which we approach justice.
Above all, recommendation 10 goes to the heart of the whole problem.
Without the Government’s commitment to that recommendation they might as well not have asked Lord Roskill to do this essential and painstaking job. The recommendation states:
“The resources devoted to the pursuit of fraud must be expanded as a matter of priority.”
That sounds elementary, but resources will be provided only if the determination exists to provide them. It must be said that far too often the determination to pursue fraud has not been evident. The Economist has drawn attention to what it calls the “lack of determination”. It stated that, in 1983, 323 reports of alleged company fraud were reported to the Director of Public Prosecutions but only 47 were prosecuted.
There are other failures, too. The Roskill report deplores what it calls:
“the reluctance of individual police fraud squads to seek assistance from other fraud squads because the requesting force would be required to pay for the help given.”
In Manchester we are complaining because we have had to pay £400,000 out of our rates to finance security round a trial which we did not ask to be held in Manchester. That financially prudent consideration—the reluctance of a requesting force to pay for help given—was not evident during the miners’ strike when police forces spent £200 million, if not more, on exactly that kind of mutual assistance.
Again, The Times—pre-Wapping—quoted the Roskill report’s estimate that the cost of a complex fraud trial is £500,000, stated that the Director of Public Prosecutions or the tax authorities were reluctant to press cases which cost so much unless they can safely predict conviction on serious charges. No such financial meticulousness has governed other decisions to prosecute. Only recently and at great expense there have been the trials of miners from Orgreave and Nottingham. The Orgreave trials cost taxpayers £500,000, and those in Nottingham cost a cool £1,500,000. Yet they ended, not in failure, but in a complete fiasco. The position may be more satisfactory if the Government pursue guilty fraudsters with a fraction of the zeal with which they have pursued miners who have been shown to be innocent.
Although fraud is a disgraceful crime which bleeds individuals, small savers, companies and the economy of vast sums, it is still more socially acceptable and genteel—a nicer crime—than burglary, robbery or theft, all of which are rightly pursued by the police with great zeal, although, regrettably, with varying degrees of success. During the period of the Government, for every one person sent to jail for Inland Revenue fraud, 20 have been sent to jail for social security benefit fraud. It is no wonder that Mr. Walter Merricks calls for prison sentences for unscrupulous operators, both to deter fraud and to reassure the public that double standards are not being applied.
There is a strange whiff of those double standards in a circular issued to chief officers of police by the Home Office last February, and I should be grateful if the Minister would explain that when he replies. The circular, which is printed in the Roskill report, states:
“The following types of fraud case should also be reported to the Controller of FIG so that he may exercise his discretion whether they should be investigated by FIG.”
He gives five categories where that procedure should apply. The fourth relates to people connected with Lloyd’s of London, the stock exchange and other commercial exchanges, and the fifth involves well-known public figures — for example, Members of Parliament and captains of industry. Why is it believed that such people require special treatment before an investigation is authorised?
The Solicitor-General (Sir Patrick Mayhew)
The right hon. Gentleman has unwittingly perpetrated or contributed to a widespread misunderstanding that prosecutions are initiated by the Government. He compared the zeal, or lack of it, with which the Government prosecute fraudsters with that with which they prosecute miners. Does he accept that, in the case of the Director of Public Prosecutions, a prosecution is initiated on the director’s independent judgment—he is supervised by the Attorney-General, but there is no Government involvement — and that the miners’ prosecutions were initiated by a county prosecuting solicitor at the instance of the chief officer of police? I hope that the right hon. Gentleman will acknowledge that important distinction.
I have known the Solicitor-General for many years, and his integrity is absolute. I always accept what he says, but he misunderstands what I am seeking to say, and, indeed, what other people believe. Obviously, I know that the Government do not instigate prosecutions. Recent cases prove that, if anything could. The Solicitor-General acts independently, and resents it if there is any intrusion on his independence. On the other hand, there is what the judge who sentenced Sarah Tisdall called the “climate of the times”. There is also the climate created by Ministers, such as the right hon. and learned Member for Richmond, Yorks (Mr. Brittan), who was Home Secretary when the trials were pending and called for heavy sentences on men who had still to be tried. That was prejudicial to those trials. Therefore, what the Solicitor-General said does not in any way contravene what I have said.
My point is borne out by a leading article in The Times which was published at the same time as the Bill—pre-Wapping. It states about the failure of the detection and prosecution system to bring most of the major professional fraudsters to court:
“In social terms that has led to a suspicion that the rich and well-connected can get away with it.”
The Times knows a bit about the rich and well-connected. At the same time, the Financial Times warned even more emphatically at the conclusion of a leading article:
“the idea that white collar crime is somehow different is not one that society as a whole can tolerate.”
Mr. Doiran Williams states of fraud:
“It is divisive in terms of class because where the law enforcement agencies fail—for whatever compelling reason—to prosecute those whose conduct has been demonstrably and grossly dishonest, the cry goes up that ‘there is one law for them and another for us’.”
It is extremely important that society should recognise that fraud is a crime more serious and more damaging than most others, but which is not pursued with the zeal and relentlessness that it should be. That is what the Roskill report is all about. That is why, with the exceptions that I have mentioned, we in the Labour party believe that the recommendations in the Roskill report form a firm basis for speedy action, and that the public is looking to Parliament for that speedy action.
Below is the text of the statement made by Douglas Hurd, the then Home Secretary, in the House of Commons on 13 February 1986.
In the month since the publication of the Roskill report there has been much interest in the media concerning its recommendations, and this debate gives the Government an opportunity to hear the views of Parliament. I am glad it has been possible to arrange early debates, both here and in the other place, because it fits exactly the structure of our response to this report, which is to consider, consult and conclude with care and speed. I do not intend to make a long speech this evening because this is an opportunity for the Government to listen rather than to pronounce. The Government will take full account of the views of this House before we reach a firm decision on a report which is important.
A will to listen does not mean a will to delay. We intend, in the next Session of Parliament, to introduce a criminal justice Bill which will seek improvements in many aspect of the criminal justice system and the powers of the courts. The Bill will be wide and substantial and the proposals following the Roskill report will be a crucial part of the Bill. A White Paper will be published shortly which will set out the proposed measures in greater detail.
We intend to create and seize every opportunity for stern action against fraud. We think this is crucial for the City and for the country so that private enterprise can flourish in a clean environment. It is crucial for public confidence, and our competitive position in international markets that the probity of our financial institutions, especially in the City, should be beyond doubt. Those who save and invest, whether grand or small, should be well protected by our law from dishonest practices, however complicated the transaction. We are determined that the pursuit and the bringing to justice of fraudsters should be carried out with commitment and skill. If our present instruments for cutting our fraud are blunt we must manufacture a new carefully directed scalpel.
The report is radical. Some of its recommendations have been criticised but no one has criticised the skill and thoroughness with which the Committee completed its task. On behalf of the Government and the House, I would like to thank the Committee for its work and record our immense admiration and sincere thanks to Lord Roskill and his colleagues for the major contribution which the report makes to the fight against fraud.
When one studies the subject in a wider prospective it is fair to say that the strategy adopted in 1983 is beginning to show results. The fraud investigation group has been established on a permanent basis for more than a year. This has been a successful attempt to reduce the fragmentation in the investigation and prosecution of complex fraud cases. We have to go further down that path. The report vindicates the 1983 decision to appoint a committee to look at the way in which fraudsters are caught and brought to justice. The Financial Services Bill, now before the House, contains measures which should substantially improve the effectiveness of self regulation within the financial markets. Early detection of irregularities can often prevent serious fraud and as with all crime, prevention is our first aim. If prevention fails then the machinery for dealing with fraud must be effective.
The legal profession may have doubts about altering some time-honoured ways. I have already learnt the deep suspicion with which many hon. Members who are members of the legal profession regard the suggestions for change. Those whose professions put them in the centre of financial transactions are perhaps less hesitant. Certainly Lord Roskill’s committee was not hesitant.
The committee’s message to the House and to the Government is that one cannot send a policeman on a bicycle to catch a runaway car. We have to equip those who chase fraud with the same speed already possessed by the fraudster. I do not doubt that there are valuable conclusions to be drawn from an examination of the present investigation and prosecution arrangements. If fraud is not effectively uncovered and detected then no procedural reforms of the law and later conduct of criminal proceedings, will deter the big fraud operators. At present responsibility for investigation and prosecution is shared by the police, the Director of Public Prosecutions, the Department of Trade and Industry and other agencies. From April the prosecution functions of the police will move to the Crown prosecution services in certain areas and from October throughout England and Wales. The cooperation between these major agencies has greatly improved in recent years and permanent Fraud Investigation Group arrangements are now in place.
FIG brings together the police and other investigators —accountants, interested Government Departments, counsel and members of the DPP’s staff. One of the Director’s lawyers exercises day-to-day supervision —acting almost as one of the “case controllers” which the report recommends. The aim of FIG is to concentrate on major frauds, although the categories are not closed, and to complete investigations quickly and to bring to an end inquiries which turn out to be fruitless. That is the present position.
Lord Roskill suggests that other arrangements are still too fragmented and he recommends an urgent inquiry into the possibility of a new unified organisation responsible for all the functions of detection, investigation and prosecution of serious fraud cases. My right hon. Friend the Chief Secretary to the Treasury is studying this most closely with other Ministers. He is also considering much of what the report has to say about the deployment of resources to combat fraud—that is probably the most artistic job for a Chief Secretary to undertake.
The Department of Trade and Industry and the office of the Director of Public Prosecutions have a provision for extra staff—the DTI for nearly 200 posts, which is a big increase, and the Director of Public Prosecutions for nine extra lawyers who will be assigned, full time, to fraud cases. I know my right hon. Friend the Chief Secretary’s inquiry will be done briskly. I understand that he hopes to reach conclusions by early summer. If, as may well be, those conclusions require something extra in the criminal justice Bill, we shall see to that.
The inquiry will, of course, have a bearing on the role of the police. Lord Roskill has some practical recommendations of immediate relevance to the police. The House is aware that I am carrying out an urgent review to assess the specific need for further increases in the resources in the establishment of the Metropolitan police. The fraud squad is part of that review, and I hope to complete it very shortly now.
The accounting advice which Lord Roskill thinks the police need is available through the fraud investigation group, and steps are being taken to recruit three additional accountants. On the initiative, which is welcome, of the accounting profession, a panel of experienced accountants in private practice has been set up in London to help the police and the director on a case-to-case basis as necessary.
The committee recommends also a career structure for officers in the fraud squad. Being a practical committee, it recognises the difficulties in implementing the recommendation within a generalised service such as the police. The joint Metropolitan and City fraud squad is realistically the only squad of sufficient size —its strength is about 190 officers — to offer a practical opportunity to introduce a career structure. Both commissioners have now agreed to my request that they should examine the feasibility of a career structure for officers in the joint squad. Outside London, the Association of Chief Police Officers will consider the scope for second or subsequent periods of service in the fraud squad to build up the experience which officers accumulate. The association will report back to me.
Lord Roskill recommends better training for the police in fraud investigation and the Association of Chief Police Officers has agreed to review the training provision for fraud squad officers.
Sir Eldon Griffiths (Bury St. Edmunds)
My right hon. Friend will be aware that in a complicated City fraud as many as 25,000 man hours of detective time will be expended. If some of the best detectives are brought into the fraud squad, as I believe they must be, that will have the consequence of removing experienced officers from other areas of detective work.
That is right. That is one of the matters that will be in the two commissioners’ minds as they undertake the exercise of considering a career structure.
I turn to the substantive law on which the committee makes recommendations, especially the use of the common law charge of conspiracy to defraud, where there is clearly something amiss. With the agreement of the Chairman of the Criminal Law Revision Committee, Lord Justice Lawton, I have asked the committee to produce a report with the following terms of reference:
“To review the restrictions on the use of a charge of conspiracy to defraud in the light of the decision in Ayres  AC 447 and subsequent cases and to consider whether these restrictions could be removed without causing injustice to defendants.”
I have asked for urgent advice. In the relative excitement generated by proposals to reform the enforcement of the law, we must not neglect the need to ensure that the law itself is sensible and enforceable.
I shall not say much this evening on the committee’s proposal for a fraud commission. It would be a body within the existing machinery of Government with an independent chairman and it would monitor the pursuit of fraud, inquire into major breakdowns, look into delays and publish an annual report.
At this rather early stage I have much sympathy with the idea of a watchdog body of that sort but I shall be interested in any ideas that right hon. and hon. Members have about the proposal. Before reaching a conclusion, we shall set up a model of how such a commission would operate and then come to our conclusions upon it.
Our approach to the recommendations that touch on the jury system is still open and I shall listen with close attention to the views of the House. I have noted the views which were expressed in an excellent debate in another place. When we publish our White Paper on the Criminal Justice Bill, there will be a wider forum for consultation.
I shall put one or two considerations before the House that might focus the debate. The main recommendation is that a judge and two assessors should replace a jury in especially complex fraud trials. Naturally many questions arise. The right hon. Member for Manchester, Gorton (Mr. Kaufman) began to raise these questions on 14 January and expressed the belief that we cannot define complexity. I accept that that is a major issue. I do not think that the guidelines in the report could be translated easily into statute, but there might be no need for a rigid approach of that sort. One criterion which could have an honourable place if the idea of a tribunal took root is as follows
“the complexity lies in the fact that the markets or areas of business operate according to concepts which bear no obvious similarity to anything in the general experience of most members of the public”.
What are the arguments for placing such cases beyond the jury system?
Mr. Robert Maclennan (Caithness and Sutherland)
Does the Home Secretary agree that many complex crimes are quite beyond the comprehension and experience of the general public apart from fraud?
Indeed. I understand that argument. I wish to make it clear that there is no feeling in the Government’s mind that we should go beyond the Roskill report. I think that Lord Roskill advanced an argument for ring fencing in this area, but I would not want the element of truth in what the right hon. Member for Caithness and Sutherland (Mr. Maclennan) has said to lead us into considering doing away with jury trials for other types of offence, even though they might also he complex. It is the comprehension of the issues that is basic to the Roskill recommendation.
Mr. John. Morris (Aberavon) rose—
I shall make a little progress and then I shall be happy to allow the right hon. and learned Gentleman to intervene.
In a complex transaction, the final question may be whether the accused was a party to an illegal arrangement, but perhaps that cannot be decided fairly until the nature of the transaction is fully established and analysed. I think that juries can have serious difficulties in understanding the evidence in complex fraud cases, and understanding the relevant evidence is important to the doing of justice both to the innocent and the guilty.
The argument does not seem to hinge on the precise rate of acquittal in fraud trials. Instead, it is directed to whether the complexities of the proceedings may be leading to arbitrary rather than just verdicts. The committee received anecdotal evidence to the effect that the difficulties of presenting the facts in complex cases may lead to decisions to proceed with lesser charges than might be justifiable in some cases. I think that the House would regard that as unacceptable.
Finally, I must have regard to the interests of all involved in the criminal justice system, not least the accused, in adopting mechanisms which reduce congestion and delay and dispose of cases with reasonable speed.
All these considerations are in favour of the committee’s conclusion on juries, but there are arguments against it, some of which appear in the powerful minority report of Mr. Merricks. No one doubts that major fraudsters deserve substantial periods of imprisonment, but in our system of open justice is it right that those who risk substantial terms of imprisonment should forfeit the right to be tried by a jury, not because their crime was more serious but because it was more intricate than the next man’s? Would a tribunal remove some of the disciplines from counsel to present the case in a comprehensible manner? Might individuals lose their liberty for reasons which few of us could understand? If the real issue is dishonesty, are not ordinary people as good or better judges of the facts than experts in high finance? If the other reforms will simplify matters, is there a case for trying them out first?
The House might wish to pause to reflect on a point which I have not heard put before. If a tribunal were judged to be the fitting answer, as it might be, is it right that majority verdicts should prevail so that the judge might differ from the eventual verdict, having been outvoted by the two assessors?
Mr. John Morris
Will the Home Secretary address himself to the issue which was raised by the hon. Member for Caithness and Sutherland (Mr. Maclennan)? What is the argument for ring fencing fraud cases, which might include experiences outside the normal for a jury, as opposed to other complex cases which might also involve experiences outside the normal for a jury?
I think that Lord Roskill would argue that there are a substantial number of complex fraud cases and sufficient for special provision to be reasonably argued. I believe that he would argue also that there would not be a sufficient number to justify special provision on other indictments, although occasionally such cases may occur. Nonetheless, they would not be of sufficient number to make necessary the introduction of special arrangements.
There are obviously strong and different views about this which cut across party lines. It seems to me that the legal profession is divided on the recommendation, and the financial professions are overwhelmingly in favour. I expect that this is the last occasion I shall be able or, indeed, shall want to tread a path down the middle.
I should like to end the analysis on this point. It would be wrong and unjust to the committee if we saw this as an attack by it on every person’s right to a fair trial in our courts. The committee has made a careful and sensitive attempt to tackle the fundamental question of how to secure a sound verdict. I think that a sound verdict must be our objective. It is as much in the interest of the innocent defendant as it is in the interest of society to bring fraudsters to book. I hope therefore that we will have, as I am sure we shall, a reasonable and balanced debate on this point.
Dealing still with juries, the committee put forward views on the defence right of peremptory challenge and the prosecution right of standby. The distinction between this and the last point about complex fraud tribunals is that with the tribunal case, for the reasons which we have been discussing, discussion is confined to the relatively few cases of major fraud. When one is discussing what Lord Roskill had to say about peremptory challenge, it must be right to look at that more widely.
There has been a lot of discussion, quite independent of fraud, on the merits of change both here and elsewhere. I do not need this evening to go over that discussion. I am quite sure that it cannot sensibly be dealt with for fraud cases alone. In the criminal justice White Paper, we will set out options for change. We shall not seek to abolish ancient rights lightly, but nor shall we hesitate to act if the preservation of the integrity of the jury system is in question.
These two jury matters have aroused high feelings, and that is quite right, but in my view they do not lie at the heart of the report. At the heart of the report are the radical proposals to reform the rules of evidence, including the easing of the gathering of evidence from abroad and the easing of the rules about documentary evidence. We have also here major procedural suggestions to formalise hearings preparatory to Crown court trial, and an associated obligation on the part of the defence to outline the nature of its case.
We find these recommendations immensely constructive and timely. We believe that their potential effect on most cases arising from fraud should not be lost sight of in hot argument over the mode of trial for a minority of particularly complex cases. Few people now believe in my experience that our rules of evidence have kept pace with the 20th century, and the reforms begun in the Police and Criminal Evidence Act 1984 to allow more documents to speak for themselves found favour with the Roskill committee. Let us now see whether we can go further, as he suggested. Let us also hope that some formalisation of the pre-trial reviews already operating in many Crown courts can clarify the issues to be put at the trial, and that a spirit of co-operation can prevail so that both parties are saved the laborious ritual of arguing matters of no consequence before patient jurors. Let us look particularly hard at the scope for participation in mutual assistance treaties with other countries to facilitate the tracing and conviction of those who perpetrate international fraud.
I have skimmed through these important proposals quite quickly, but I should like to make it clear that we welcome this batch of proposals warmly. We shall take account of views expressed today and of those which may yet be offered by the judiciary, practitioners and others with relevant experience. But we start from a position of willingness to legislate on the basis of these highly significant proposals at the earliest opportunity.
That is the spirit in which we approach the report. I hope that I have clarified some of the central themes. I hope that I have re-emphasised our stern approach to this subject and our willingness to think and act radically about it. The touchstones of our response are justice, efficiency and effectiveness in bringing to account the perpetrators of fraud. We shall carry through all the proposals in the report which pass those tests.
Below is the text of the speech made by David Hunt, the then Parliamentary Under-Secretary of State for Energy, in the House of Commons on 12 February 1986.
I congratulate my hon. Friend the Member for Leicestershire, North-West (Mr. Ashby) on securing an important opportunity to draw attention to the difficulties faced by the people of Oakthorpe. My hon. Friend has acquired a well-deserved reputation as a diligent and effective constituency Member and on this topic he has argued tirelessly and strongly for a just and equitable solution to the problems that he has outlined. I welcome this opportunity to participate in the debate. I do so primarily as a member of the Government, but I am the Minister with special responsibility for the coal industry.
I am grateful to my hon. Friend for his eloquent account of the events at Oakthorpe and of the impact on the people there. I and many of my ministerial colleagues—I am pleased to see my hon. Friend the Member for Mitcham and Morden (Mrs. Rumbold), the Under-Secretary of State for the Environment, on the Government Front Bench—much appreciate the concern which must be felt by those living in and around the village and by the bodies concerned, the two local authorities—Leicestershire county council and the North-West Leicestershire district council—and the National Coal Board, irrespective of any issues of liability. I am pleased to see present tonight my hon. Friends the Members for Derbyshire, South (Mrs. Currie) and for Sherwood (Mr. Stewart), both of whom have been strong supporters of my hon. Friend the Member for Leicestershire, North-West in his determination to help those of his constituents who are facing serious difficulties.
One of the things which tends to characterise a community at a time of difficulty is the way in which all concerned pull together to deal with the problem in hand. I understand that all three of the parties I have mentioned are working closely together to do what is necessary to fight the fire and to deal with the consequences.
The Government have been following with close interest and concern events at Oakthorpe since the fire was first drawn to their attention last autumn. I have received letters from a number of people who live at Oakthorpe. They have been very moving letters. I am therefore pleased to be able to report to the House tonight that much positive progress has been made in helping them.
I have been regularly informed by the National Coal Board of the action which it has decided to take. I have been impressed by the depth of its concern. It has not waited for legal wrangles about liability—a matter which can be settled ultimately only by the courts—before taking action as a good neighbour at Oakthorpe. I understand that it has brought together its own mining expertise and that of contractors specially brought in to work there to consider how to fight the fire and how to deal with the effect of the damage by the underground heating on properties in the area. My hon. Friend the Member for Leicestershire, North-West has paid tribute to that. The business of tracing the origins of the fire and then of dealing with it is, I am told, a specialised engineering feat.
Since the beginning of January a highly specialised firm of construction engineers under contract to the board has completed an initial drilling programme. The purpose of this was exploratory, to ascertain ground temperature and so plot the fire’s course. Several drilling rigs made a total of 62 boreholes and the evidence from these has led the board to instruct the contractors to embark on an extensive exercise to limit and dowse the fire.
The current operation involves constructing a cement curtain around each individual property affected, with the object of shielding it from the effects of high temperatures. In addition, the introduction of cement into the surrounding coal seam acts to cut off the underground air flow and so contributes to extinguishing the fire. The cement is pumped into the seam by way of holes drilled around each property or by a surrounding trench. The process is called grouting.
The latest figures from the National Coal Board show that to date the contractor had drilled 182 boreholes and introduced over 88 tonnes of grouting material into the earth. The results of this operation have been encouraging. The grouting of one house is now complete and tests have been carried out. These show early indications that the process is beginning to bring the fire under control. The board has decided therefore to pursue the grouting operation on other properties in close consultation and with the consent of individual owners and tenants.
Furthermore, I have been assured that the health and welfare both of the inhabitants of Oakthorpe and the contractor’s employees is a priority during this operation. Regular monitoring and testing of temperature and for the presence of carbon monoxide are being carried out, and remedial measures would be put into effect, if the levels were to rise. Emergency arrangements have been well planned. Some properties have, for example, been fitted with carbon monoxide alarms as a precautionary measure. I understand, having talked to senior officials earlier tonight, that so far there has fortunately been very little evidence of carbon monoxide. That is good news for all concerned.
The National Coal Board is also in regular contact with the Oakthorpe residents’ action group, dealing with individual and general queries and the supply of regular information on work in progress. Day-to-day problems are dealt with on the spot by an NCB engineer who visits the village daily. I understand that as part of the general information gathering and dissemination process a further public meeting is to take place.
Remedial work is of course at an early stage as this operation requires precision and expertise, but the National Coal Board has good reason to believe that the methods employed will be successful. Plans are already being formulated for renovation of the sites by landscape gardening. I hope that my hon. Friend the Member for Leicestershire, North-West will have found this catalogue of National Coal Board action encouraging.
I think that the fire at Oakthorpe demonstrates very convincingly that the NCB is a concerned body which is anxious to do all that it can to relieve hardship to communities. In this case it is not even the board’s actions which have caused the problem, nor does it necessarily have any responsibility in the matter. But because NCB staff are best placed technically to provide advice and practical assistance, they have stepped in and co-operated with the local authorities to solve the problem, as I have explained tonight. I am grateful to my hon. Friend for his suggestions that the board’s actions are the result of my intervention; but I have to tell him that he exaggerates my influence. I am sure that the board acted out of generosity and public spirit.
Throughout the exercise at Oakthorpe, the National Coal Board has been working in close co-operation with the local authorities and their contractors. This is a fine example of community effort. In addition to helping on the technical side, I understand that the local authorities are also taking action to ensure that people in the village are being rehoused, if necessary. I am sure the House will agree that all those concerned have made and are continuing to make strenuous efforts to deal swiftly and energetically with the immediate problem of dowsing the underground fire. I congratulate them on their skill, energy and enthusiasm. However, there is a distressing side to the story of which my hon. Friend reminded us tonight. He rightly pointed out that we are speaking of damage to people’s homes and the resulting heartache and anxiety caused to a close-knit community. That is, indeed, a serious matter.
The local authorities have been energetic in seeking help to meet costs already incurred. My hon. Friend the Minister for Environment, Countryside and Local Government has been in touch with them recently to ascertain the position, and my hon. Friend the Member for Leicestershire, North-West referred to the letter of 5 February. I understand that the Department is now considering the position but is still awaiting from the local authorities my hon. Friend’s request for further financial information. I hope that that can be provided as quickly as possible. I know from my hon. Friend the Member for Mitcham and Morden that her Department will then consider urgently whether any financial assistance would be appropriate.
The question of liability is, however, a complex issue which cannot be addressed without careful consideration of the long-term consequences. Both the Government and. the NCB must remember that they are dealing with public money. The immediate and overriding aim must be to dowse the fire. I hope that I have persuaded the House that the NCB and the other parties concerned are doing all that is humanly possible to do that.
I should like to end by assuring the House and. through my hon. Friend, the people of Oakthorpe that the Government are keeping closely in touch with the position there, and that I and my ministerial colleagues hope that progress will quickly be made to overcome their problems. My hon. Friend has rightly emphasised an invitation for me to visit Oakthorpe, and I thank him for it. I accept the invitation, obviously, without any commitment regarding eventual financial liabilities, but as an opportunity to see for myself the results of work already carried out. providing me with first-hand experience of the position which I can also pass to my hon. Friends at the Department of the Environment.
There will undoubtedly be difficult judgments to make in the future about where responsibilities for this fire lie. But we may congratulate all the parties concerned on being prepared to take action to solve the immediate problems. at Oakthorpe on a without prejudice basis. I know that I can rely on my hon. Friend to keep me in touch with progress, and I hope that what I have said will have done much to reassure the people of Oakthorpe.
Below is the text of the speech made by David Ashby, the then Conservative MP for Leicestershire North West, in the House of Commons on 12 February 1986.
I thank the Parliamentary Under-Secretary of State for Energy, my hon. Friend the Member for Wirral, West (Mr. Hunt), for his kindness in waiting up so late to respond to my Adjournment motion. I thank my hon. Friend the Member for Mitcham and Morden (Mrs. Rumbold), the Parliamentary Under-Secretary of State for the Environment, for taking such an interest in the debate, which concerns an underground fire in a coal seam at Oakthorpe.
Who would have thought a few years ago that the village of Oakthorpe in the depths of Leicestershire would have achieved such fame and notoriety. We would rather not have that fame and notoriety. If we were not debating people’s homes, investments and lives, the facts would be amusing. Few can have the doubtful pleasure of living above a smouldering coal seam with a temperature of 60 degrees celsius a few feet below the surface providing their own central heating. Even fewer can have gone to dig up potatoes in their back gardens to find them already baked, as Mr. Bates of School street did recently.
Oakthorpe is a most attractive mining village, close to the Derbyshire border of Leicestershire. Mining has been carried out in the area since the thirteenth century. Currently there are a number of active deep mines in the area.
As well as coal seams at a deep level, in the area of School street, there is a shallow seam of coal which outcrops just south of School street. It inclines away from School street at an angle of about 20 degrees in a northerly direction. This outcrop is composed of a sulphurous coal which is capable of, apparently, spontaneous combustion when exposed to sufficient air. It is that which is causing the problem.
I hasten to add that the outcrop is limited in its width to the east and west by major geological faults and that a large part of the village has nothing to fear. Furthermore, since the outcrop inclines so rapidly it reaches a substantial depth by the time it reaches an area called New street and beyond. I say this immediately, Mr. Deputy Speaker, because there is a fear, bordering on panic, among some villagers who would not be affected. There has also been a substantial loss of confidence in the property market for homes that would not be affected. I say to prospective purchasers and vendors: consult the divisional surveyor of the Leicestershire county council, who will be able to explain the outcropping and the geological faults and the facts about the property to be purchased or sold.
In September 1983, a property known as The Bungalow, in School street, suffered substantial damage. As is common in a mining area, the National Coal Board was notified and in September 1984 it sank boreholes. Those showed that the ambient temperatures were substantially raised. However, the board denied liability and did nothing to halt the fire, inform the county, the district or the parish councils, or adjacent property owners. It even did a smoke test which showed an influx of air—the very cause of combustion. As a result of that failure to notify anyone, the fire continued to smoulder unchecked. On 4 April 1985, the county council noticed a deformation of the carriageway, and that the garden area of No. 59 had subsided. The NCB was contacted and denied and liability. By mid-July, Mr. Sparham at The Bungalow was forced to evacuate his house due to a structural change and at the end of July smoke issued from another depression in the garden of No. 59 which belonged to a Mrs. Kent.
Leicestershire county council moved into action and engaged consultants who commenced monitoring procedures for subsidence, temperatures and gaseous emissions. By mid-October the consultants had produced an interim report and the possible extent of the problem was becoming apparent. It was at that stage that I was told of the problem and became involved.
In early November the consultants’ first report was received and it was agreed by the county council that a borehole investigation would have to be done to find out the extent of the fire. On 18 November I met the county council’s environment committee, which is chaired by Mr. Eric Lodge. I praise Mr. Lodge for the decisive and caring way in which he has dealt with the problem. At that meeting reports were given which stressed the potential dangers and spread of the fire. The NCB had the expertise and detailed knowledge of the area, but was hardly involved, for fear that it might be considered that it was admitting liability.
After that meeting I sought an urgent meeting with my hon. Friend the Under-Secretary of State for Energy. He immediately recognised the emergency and promised the involvement of the NCB. I am very grateful for the way in which my hon. Friend has dealt with the problem and for the help, assistance and guidance that he has given. I have been told that there are few meetings in his Department at which the problem of Oakthorpe does not arise at some stage.
In the meantime, two further disasters had overtaken the village. Mrs. Kent’s house had become so unfit for habitation, due to subsidence caused by the fire, that it had to be demolished. Mrs. Kent was rehoused by the North-West Leicestershire district council.
By November, the media were getting interested in Oakthorpe and when Mr. Bates dug up his ready-baked potatoes the story reached the national headlines. It was the subject of chat shows and “Any Questions” on the BBC and was even featured on Chinese television. However, the story masked the anxieties that Mr. Bates and his aged mother were having about their home, which was literally falling to bits about them.
There are 100 properties in the area that could be affected by the fire and 30 of them have already been affected in one way or another. Since my request to the Under-Secretary, the Coal Board has been increasingly involved. It has done a thermal survey and has four rigs in the area, drilling and injecting grouting to fill the voids left by the burning seam. I am told that in April the NCB will be moving in four more rigs to under pin and protect the local school. The board is working on the protection of The Gate public house by trenching and boring.
The NCB has publicly committed itself to do all that is necessary. The residents of Oakthorpe and I are grateful for its response. However, the NCB is always careful in its statements. It is anxious not to admit liability for the damage. However, as the NCB owns the coal, as it did nothing to stop the fire after its borings in September 1984 and as it has been mining to within 250 m of School street, many of us say that the board has a liability under the Coal-Mining (Subsidence) Act 1957.
As we agreed in November, when I met the Minister, we are dealing with people’s homes and not with piles of bricks. We are grateful that the NCB has been acting speedily to save those homes. Although the board has taken the initiative in carrying out remedial work, the extent of the proposed works is not clear.
We should like a statement from the Government or the NCB that they will deal comprehensively with the problem, whatever its extent. We should like to hear that the cost will be borne by the Government, or the NCB. We should like to hear that the NCB or the Government will meet the full cost of repairs to property and infrastructure caused by this underground heating and its associated subsidence, including all the necessary redecorating to property and reinstatement of gardens.
Not only have foul sewers been damaged, but grouting has filled such things as drainage outfalls, all of which will have to be relaid. The county council has incurred large costs in dealing with the crisis, and a unique disaster of this sort should not be a burden on the ratepayer.
I have seen a letter from the Minister of State, Department of the Environment to the chief executive of the county council, dated 5 February. This letter shows sympathy, but it is sympathy without commitment. I am asking for that commitment.
There are other areas where environmental crises have been due to former mining operations. I am told that in Barnsley and Strathkelvin district methane gas leaking from old workings had gone into the buildings above and been a problem.
In Blaeneu Gwent, three houses over old workings collapsed. A mountainside was destabilised and it is sliding slowly into 170 houses. This was first noted in 1980. If action had been taken then, rather than in 1986, any action would have been far cheaper than it is now. It would have been better to act sooner rather than later.
Simply because this fire is slow burning, is it any less a disaster than if it were a sudden demolition of property? Is it any less a loss of property or hardship to those living in the area because there has fortunately been no loss of life or injury? This is a real and continuing emergency on a large scale, which demands Government action.
There are some possibilities and some solutions. Could the Department of the Environment and the Welsh and Scottish Offices perhaps consider an emergency fund as an insurance? If such a fund could finance immediate remedial work and reclaim costs from whoever was judged responsible for this cost later on, a great deal of good would be done. This would allow the immediate work to be done before the problems worsen, and it would not require anyone to prejudice their legal rights. While some might be insured, the insurance does not always cover all the problems, nor is everyone fully covered.
One very important aspect is that some people are quite unable to sell their properties. Mr. and Mrs. Bown, who have a property, at present unaffected, at 87 School street, in May 1985 purchased another property and put theirs on the market. Then the story of Oakthorpe broke, and although one or two people expressed an interest, they broke off negotiations for fear of the fire.
Can something not be done about this very real hardship? At the very least, either the owners should be compensated for the loss of market value caused by that fire, or the Government or the NCB should purchase, at full market price, any property in the area affected by the heat, if the owner wishes to sell.
These disasters are not unknown in the mining villages. My hon. Friends the Members for Sherwood (Mr. Stewart) and for Derbyshire, South (Mrs. Currie), who are both from coal mining areas, know these problems well. I am rather surprised that not one person is on the Labour or SDP Benches to discuss the suffering of a mining village. They care very little for these mining villages.
We should like a statement of NCB liability, but we realise the real difficulty in which the NCB may be placed by the 1957 Act. We cannot wait for the result of a court case to relieve the situation in Oakthorpe. Even if we had a court case and the NCB were found not to be liable, could the Government abandon the people of Oakthorpe?
In the spirit of our discussions throughout, I do not ask for a finding of legal liability. Instead, I ask for action. I ask my hon. Friend the Minister to visit Oakthorpe to see the work that the NCB has been doing and to obtain the facts for himself. Above all, I ask him to meet those who are affected, the local councillor, Mr. Horace Sankey, to whom I must pay tribute for his dedicated assistance, and county council officials. I ask that my hon. Friend visits the area to show that the Government care and to lift the morale and confidence of the residents in the area.