Amendment moved [this day]: No. 1, in clause 4, page 2, line 9, leave out ‘months’ and insert ‘years’.—[Simon Hughes.]

Simon Hughes (North Southwark and Bermondsey) (LD) rose—

Mr. Douglas Hogg (Sleaford and North Hykeham) (Con): Just in time.

Simon Hughes: Just in time is always good enough. I thank the Committee for agreeing to change the time of the sitting because it has allowed colleagues the opportunity to speak on the urgent question in the House. That was much appreciated.

The amendment would delay for two years the period before which the Bill comes into force. I put the arguments for waiting to see how the changes already announced will take place. My final argument was to do with the Government’s review. When do they expect to announce the its conclusions? The consultation finished in October. I understood that we were to expect an answer about now, and people will need to digest that. However, it is another reason for giving Parliament, the Committee and the country time to digest the implications of what has happened in the two years since the Government thought we needed to proceed.

I hope that the Committee can be persuaded that it will be sensible not to rush any changes, even if people are minded to support them in principle. I hope that we can agree that it will be better to wait, take stock of where we are, and then properly evaluate the best way to try cases of serious fraud. I hope that that is an attractive argument.

Mr. Dominic Grieve (Beaconsfield) (Con): I support the amendment. The hon. Gentleman touched on the fact that we have a new Fraud Act—the FraudAct 2006—which has not yet been fully implemented. There has also been no time for us to understand the extent to which it will simplify trials.

I mentioned an issue relating to the Domestic Violence, Crime and Victims Act 2004, which is also highly germane to the debate. Those who participated in the debates on that Act will recollect that it contains a controversial provision that attracted considerable debate, but which the Conservatives did not seek to obstruct. That provision allows for the trial of specimen counts in the case of somebody who carries out what is described as repetitive criminality. When a person has been convicted, it allows the judge alone to make a finding of fact on the outstanding counts that have not been tried but have used the same system to obtain something or otherwise to commit an offence.

The obvious example is someone who uses a credit card 500 times fraudulently and dishonestly to obtain goods or services. Rather than having to plough through all 500 counts, one can pick two or three specimen counts to be tried by jury. After the person has been convicted of those offences, other offences that plainly bear the imprint of their criminality, having been committed in the same period and starting with a specimen count at the beginning and the end of a period, can be dealt with by a judge on his own.

That system existed informally in my early yearsat the Bar. It was called taking offences into consideration. In that period, the system that we had in place was that if a person would not agree to offences being taken into consideration, the judge effectively took them into consideration if he considered that the evidence of a person’s involvement was overwhelming. That system was overturned by the Court of Appeal, which said that if a person disputed TICs, as they were called, the outstanding offences could not go into the balance of the sentencing process. The Government’s proposal in the 2004 Act was precisely to get around the problem by having a formal system of adjudication on outstanding counts. Although some had concerns about the extent to which it might usurp trial by jury, I for one considered it to be a sensible way to proceed.

Mr. David Heath (Somerton and Frome) (LD): My recollection of our proceedings on the 2004 Act coincide with the hon. Gentleman’s. Although we had reservations, we all felt that that was a sensible way to proceed for precisely the reason of exposing the full criminality—I believe that is the phrase the Solicitor-General likes to use—without placing too onerous a duty on the jury. Why on earth it has not been implemented, God only knows.

Mr. Grieve: The hon. Gentleman, with whom I have shared many hours in Committee on numerous Bills, mainly in the field of criminal justice, takes the words out of my mouth because that is precisely the point I was about to move on to.

The Solicitor-General (Mr. Mike O'Brien): Will the hon. Gentleman give way?

Mr. Grieve: I will in a moment when I have made another point.

Seeing that the measure was specifically designed to expose the full criminality in a way that provides reassurance of the maintenance of the principle of jury trial, it is odd that the principle and the power in the 2004 Act should have been ignored by the Government in the current proposals. The situation is all the odder because the 2004 Act has been on the statute book for some little time. The Minister will be able to tell us exactly how many months, or years, but we are talking about a considerable period. Yet I understand from a comment this morning that a particular clause dealing with this procedure, which I would have thought would have been fairly easy to implement, has not yet been implemented and is not due to be implemented until January 2007.

Mr. Hogg: Will my hon. Friend give way?

Mr. Grieve: I had better be fair and give way to the Solicitor-General first.

The Solicitor-General: I am curious because as the hon. Gentleman supported the provision, I would have thought that he understood its purpose. It seems that he did not. The particular provision to which he refers, in the 2004 Act, relates to the charging of specimen counts that deal with the same sorts of other counts which are subsequently the subject of sentencing.

The role of such a trial is to deal with a wide range of activities. They are not the same. They may in some cases be broadly similar, but they may indeed be different. Therefore the prosecution of fraud may involve the prosecution not of a range of identical offences, but a broad range of fraudulent activity which may go across a whole series of transactions, some of which may be similar and some of which may not. Therefore, what the hon. Gentleman is talking about, and what we are talking about in the prosecution of fraud, may well be entirely different things, and that is why one does not deal with the other.

Mr. Grieve: I listened carefully to what the Solicitor-General said and I am now even more puzzled by what the Government are intending to do in this Bill.

The Chairman: Order. Amendment No. 1 to clause 4 has a relatively limited scope. It concerns the commencement date and the territorial coverage, both of which matters the hon. Gentleman will be well familiar with. He may periodically animadvert to, but he may not dilate upon matters that are outwith the terms of the Bill or the amendment.

Mr. Grieve: Mr. Bercow, I am grateful to you for reminding me of the scope of the amendment, but I hope that you will be able to rule at least in order that we are dealing with delay. One of the arguments for delay is to see how the impact of the 2004 Act provisions may work in practice after it has been implemented at the end of January. I will do my best not to digress too much, but the Solicitor-General has raised an issue, to which I hope I can respond promptly and expeditiously. He suggests that in fact there is a completely different effect that is not germane to the issue under consideration. Of course, I will be mindful that I must not stray into a general debate on a clause in a separate Bill.

The Solicitor-General puzzled me because, while I accept entirely that fraud may not necessarily be a systems offence, with a repetition of the same format time over time—although it very often is—he raises a separate issue, which I hope we can properly consider without straying too far. Even if we have trial by judge alone, that does not justify lumping together in one trial a series of separate fraudulent activities. I simply suggest to the Solicitor-General that if a prosecutor attempts to do that, the rules in front of a judge alone would apply exactly as they would in front of a jury and he might well be prevented from doing that, because it could be extremely unfair to a defendant. I hope that the Solicitor-General can provide clarification on that. If we are dealing with one fraud concerning extorting money from A and one from B, I would not necessarily assume that they would be allowed to be tried together.

On the main point, it seems to me that the 2004 Act provision on specimen counts is potentially sufficiently germane to the issue under consideration that we ought to have an opportunity to see how it works. In many cases, I think that it will greatly shorten trials. Prosecutors will be able to select specimen counts in many instances of fraud which involve a system and try those quickly with the reassurance that at the end the judge will assess the full criminality by a speedy method that does not involve a jury. Therefore, it drives something of a coach and horses through one of the Government’s principal arguments. For that reason, and without wishing to digress too far into the principles of the Bill, it seems a powerful argument for saying, “Let’s wait and see how this works in practice,” before we move to a highly controversial measure that departs from our established principles and practices of trial by jury.

Stephen Hesford (Wirral, West) (Lab): I made a similar point on Second Reading. Does the hon. Gentleman accept that while a High Court judge listening to an application could take the matters that the hon. Gentleman describes into account, that would have the same effect as looking at the system of report? If in reviewing these things a High Court judge and/or the Lord Chief Justice judged it as a relevant matter and it was argued before them, they would take it into account. No doubt, if it was powerful they would refuse the application for the non-jury trial.

Mr. Grieve: I accept that the hon. Gentleman makes an absolutely valid point. When an application is made for having a trial by judge alone, I can see that it would be possible for defence counsel to argue that in such a case, as part of the other arguments that could be advanced, it could have a jury trial because we could proceed on specimen counts and have it tried separately thereafter.

Although I accept that that is a perfectly good argument, my point is simply that, for reasons that are philosophically based, I do not like departing from the principal of trial by jury. On the whole, experience shows that if a mechanism or power is provided, it sometimes ends up being used when it might not necessarily be needed. As I disagree with the Government on that, I would much prefer to give the new systems established in the Fraud Act 2006, which were touched on by the hon. Member for North Southwark and Bermondsey, and the 2004 Act the chance to bed in. We might all end up with an agreement in two years’ time between the Solicitor-General, the Attorney-General and myself, with everybody saying, “Actually, as it’s turned out, we now realise that this really isn’t necessary,” at which point we can be convivial and stop disagreeing, which on the whole is a good thing