Clause 36 - Application by defendant for trial to be conducted without jury
Criminal Justice Bill
11:00 am
Mr Simon Hughes (North Southwark and Bermondsey, Liberal Democrat)
Even if I could, I will not, because that would be extremely unfair. There have been judges with reputations for being exceptionally tough. I remember having given evidence of character on behalf of constituents at one of my local Crown courts, where the fact that it has been judge X rather than judge Y has been highly determinative. People used to make choices according to who was the resident judge and who was on duty on a particular day. While I am not going to name names, I can think clearly of judges known to be pro-prosecution and tough, and of others who have a reputation for being in favour of the defendant. If they are considering a sentencing matter, that is one thing, but if such a person, alone, is to make a decision, we are into a different ball game.
There are cases in which the defendant and others might want to make inquiries about the background of a judge before they made a decision. That will open up the prospect of judges' personal and professional lives, and their financial dealings, having to be in the public domain. That is not good for them and it is not good for the system.
I shall cite one or two more cases. Imagine that the defendant was a former senior civil servant or a former or current Member of Parliament, or a former judge or senior public official, who sought trial by judge alone. If the judge acceded to that request and the trial resulted in an acquittal, that could be perceived as the establishment looking after its own. It is a very dangerous route to take and would lead to a large number of appeals.
We should remember the experience in Northern Ireland. Of course, the context is different, and we understand why the Diplock courts came into being, but they caused real antagonism in the community. In those circumstances, trial by judge alone was necessary for security reasons, but they have never commanded the same public confidence as jury trials. No one ever wanted that system to continue and people have always been struggling to get back to a system of trial by jury. As the hon. Member for North Down will know from her experience both before and after she came to the House, the confidence of the whole community, across the denominational faith divides, lies in trial by jury.
The imbalance in the interests of victims and defendants should properly be taken into account. Although, in a simplistic sense, it might be fair to give the defendant the right to appeal, we know in which sort of cases defendants will choose trial by judge alone. They will be high-profile cases, in which jury trial would be embarrassing, so they will be cases in which judges will be put, most spectacularly, in the dock of public opinion, because they will be sex offences and the like.
I note that in other jurisdictions, such as New Zealand and Australia, where the law has been changed to allow the same choice, the law also includes qualifications of a type that we have not discussed. The most serious cases—those for offences with a higher tariff, punishable by a certain number of years' imprisonment—do not qualify for the choice. I would not buy that anyway, but I urge colleagues to be extremely cautious about moving to a system that
sounds as if it will deal with cases more efficiently, shorten some trials and be popular with some defendants, but will in fact produce a two-tier justice system, in which good decisions are thought to be made by juries and decisions that are much more readily questioned are made by a judge alone. However competent judges are, such a process is not fair to them. More importantly, it will undermine the whole system. Lay participation in the justice system is central, and not something that defendants would be wise to alter or that they should be given the opportunity to alter, especially in the higher courts.