Clause 36 - Application by defendant for trial to be conducted without jury
Criminal Justice Bill
9:10 am
Mr Simon Hughes (North Southwark and Bermondsey, Liberal Democrat)
I thought that I was putting the hon. Member for Beaconsfield somewhat on the spot earlier by making him speak slightly earlier than he expected. I anticipate, Mr. Cran, that there will be a clause stand part debate; therefore I propose to ensure my contribution on the amendments at this stage because the issue of principle is best discussed in the stand part debate that follows.
There are three amendments in my name and that of my hon. Friend the Member for Somerton and Frome (Mr. Heath); there are amendments from the hon. Member for Nottingham, North; and there are amendments from the hon. Member for Beaconsfield and his hon. Friends. Of the three amendments in my name, amendment No. 295 is a consequential amendment to clause 42, and would be made only if the earlier amendments were made. Therefore I need not take up the Committee's time with it.
The first amendment simply proposes that if Parliament decides to agree to trial being by judge alone, by application, the judge should have complete discretion, once the application has been considered, to grant or not to grant the request. Clause 36 sets out the circumstances in which that could happen. At present, under clause 36(1) a defendant may apply for an application for trial without a jury if one or more defendants are to be tried on indictment for one or more offences. The application may be blocked if one of the defendants objects.
In subsections (6), (7) and (8) there is a requirement for refusal if any of the other criteria apply—the criteria to which the remarks of the hon. Member for Beaconsfield (Mr. Grieve) were principally addressed. Those criteria include the slightly unusual circumstances set out in subsection (6), in which, first,
''the defendant, or any of the defendants, holds, or has held, an office or employment concerned with the administration of . . . justice''
and, secondly,
''the judge is satisfied that, if that defendant were convicted . . . questions would arise as to whether he had properly discharged the functions of that office . . . or was a fit person''
and, thirdly, the judge is satisfied that there are exceptional circumstances.
I understand that provision in principle; it attempts to prevent a judge-only decision where an issue arises that could lead to suspicion of a set of vested or common interests, because other people involved in
the administration of justice would clearly regard someone on the inside as a better person to determine their guilt or innocence. The fear is, however, that it would appear to be an old boys' network decision, in which case jury trial would be a protection and would ensure that justice appeared to be done—for example, in the case of a clerk to a magistrates court who had embezzled funds when he or she was collecting fines. I understand the provision, although we could debate whether the wording is perfect.
Subsection (7) gives a third reason why the judge can insist on a jury trial. It states:
''This subsection applies if the judge is satisfied—
a) that, because of the conduct which is alleged to constitute the offence or any of the offences concerned, the issues which will arise . . . include issues relating to whether the administration of civil or criminal justice has been prejudiced or brought into disrepute, and
b) that the matters . . . give rise to exceptional circumstances''.
I would imagine that that would cover issues associated with perjury and interfering with the course of justice, and I completely understand that cases in which such issues arise should not be judge-only trials. It is important that lay people should make decisions about such cases, so that the judgment does not appear to be a legal decision.
Subsection (8) includes a sweep-up provision that will apply where
''the judge is satisfied that exceptional circumstances exist which make it necessary in the public interest for the trial to be conducted with a jury.''
That will probably cover all the circumstances that would also be covered by my amendment, No. 202. It is not easy to think of exceptional reasons why a judge would decide that the public interest requires a jury trial. The only generic circumstances that I can think of are where something does not technically qualify as an exceptional reason but where we might want to give the judge discretion. Alternatively, there might be reasons that the judge does not want to reveal publicly, relating to previous trials that he conducted, for example, if the judge has tried other people in the same series of trials. If the judge had presided over a couple of trials in a series of cases of armed robbery, with three defendants in each, and all had been jury trials, it would be wrong if a judge alone tried the third trial. The third trial might involve a single defendant, because that was how the prosecution conducted their case, and there might not be any exceptional circumstances.
The circumstances of a case may be perfectly routine, but the judge might believe that it should be tried by a jury. That could be for personal reasons. The judge might have been the subject of extreme criticism in the media—for example, in a sex offence case—for giving a guilty verdict but a lenient sentence. In such circumstances, when the next sex offence came before that judge, he might decide, for perfectly proper and professional reasons, that he wanted a jury to decide the case; otherwise, he might be regarded as a judge of a particular species, a weak or a soft judge. I am unsure whether those would qualify as exceptional circumstances, but it would be impossible for that judge to make the reasons for his decision public.
There are plenty of cases in which one might want to allow the judge, having heard the argument and setting aside the merit of the case as a whole, to say, ''On a balance of argument, I believe that it should be a jury trial''.