Douglas Hogg (Sleaford & North Hykeham, Conservative)

I beg to move, That the clause be read a Second time.

The object of the new clause is to enable the defendant, or a defendant if there be more than one, to make an application for a trial without a jury. At the moment, as the Committee knows, an application for a judge-alone trial under section 43 can be made only by the prosecution. That raises the question: why should a defendant not be able to make such an application? Itis my recollection that Lord Justice Auld, in his recommendations, contemplated that a defendant should be able to make an application. What I seek to do, therefore, if we must go down this road, is to ensure parity between the prosecution and the defendant.

The question that we need to address is whether there are circumstances in which a defendant might wish to have a judge-alone trial. The answer is yes; I can contemplate at least three sets of circumstances in which that might happen. The first, which will occur increasingly often thanks to changes in the legal aid rules, will occur when defendants pay for their own legal representation. A defendant might well conclude that it would be quicker to hold a trial without a jury. If it is quicker, and he is paying for his own representation, it will be cheaper for him. That might be the sort of situation in which a defendant would wish to have a judge-alone trial. There are parallels in cases of libel, in which defendants can elect judge-alone trials.

The second circumstance that might arise is that in which a defendant might conclude that he is likely to get a more favourable hearing from a judge. I think that that would be a fairly exceptional situation, but I can think of it arising in some circumstances. A defendant may be of a class that would make him think that he would get a less sympathetic hearing from a jury than  from a judge. Let us be honest about this: if one was a professional, middle-class person and an alleged white-collar fraudster, one might feel that one would get a thoroughly unsympathetic hearing from a jury. That has been so in some libel cases, in which defendants have come to that conclusion. One could ask oneself whether the same is not true of politicians. We are said to be one of the least popular groups of individuals in the land, which may well be true. If I were foolish enough to start a libel action, I would much rather have my case tried before a judge alone than before a jury and I can contemplate situations in which, if I were tried for a serious fraud case, the same would apply, simply because we are the kind of people that we are.

There is a different situation that is equally relevant, which depends on the nature of the offence. Let us say that a defendant is charged with milking pension schemes. We know how sensitive the public is about pensions schemes, and rightly so. A defendant might come to the view that such charges would get an unsympathetic hearing from a jury. Let us consider Farepak: I am not suggesting that any fraud has been committed, but for the purpose of illustrating the argument, let us assume that there was an allegation of fraud associated with Farepak. I can very well see that a defendant who was charged with that kind of offence might think that he would get a pretty rough ride from a jury. There are cases in which a defendant might choose a judge-alone trial, because he reckoned that he would get a rough ride from a jury.

The third class of cases is related to the first, but nevertheless stands alone. I can contemplate a situation in which a defendant might conclude that the complexity of a case was so great that it was best dealt with by a judge, on the basis that the jury would not properly understand it and would not return a safe verdict. Let us consider cases of long-term fraud involving lots of people from abroad. Such cases would involve a mass of documents, much of which would have to be translated from Arabic, for example, and the original text of which would not be comprehensible. Furthermore, and more damagingly from the defendant’s point of view, most of the witnesses would speak in Arabic and would have to have their evidence translated by an interpreter. I have done a number of cases in which interpretation was essential and I can say that one rather loses the thread of the evidence when it comes through an interpreter. If there are a lot of witnesses whose evidence is being interpreted, there is a real danger of losing the plot, however good the interpreter may be—many of them are quite good in this context. In those circumstances, I can imagine a defendant saying, “This is a jolly difficult case because of the special reasons that I have advised, and I would be happier if my case were determined by a judge alone.”

I am against this Bill and I hope it fails, but now that we are here we have to try to improve the beastly thing if we can. It is difficult to see an argument of principle for the defendant not being in the same position asthe Crown. It was the view of Lord Justice Auld that the defendant should be in that position and that is the proper way forward. I therefore commend new clause 1 to the Committee.

David Heath (Shadow Leader of the House of Commons & Shadow Cabinet Office Minister, Cabinet Office; Somerton & Frome, Liberal Democrat)

I listened carefully to the right hon. and learned Gentleman, and I found his arguments persuasive to an extent. I am inclined to support his views.

On equity, if there is to be a trial in which the forces on either side are equal under the law, it must be right in principle that the application for a trial without jury should be open to both the prosecution and the defence. I share the right hon. and learned Gentleman’s view on circumstances in which the defence might consider it in the interests of the accused to go to a judge-only trial.

He mentioned the complexity of a case, but the crucial issue is the complexity of the defence. Much of our discussion has been to do with whether the complexity of the prosecution case is understood by a court, but there are instances in which the complexity of the defence in a fraud trial will raise the question whether the jury can understand it fully. My view is that, if both the defence and the prosecution do their work properly, that will not be an issue. However, if there is not a requirement for a jury to be in place, it will be perfectly proper for the defence to argue to a judge that the complexity of the defence is such that it should be heard before a judge only.

That will be particularly true in cases on the cusp of sharp practice and dishonest behaviour in which the defence argues that the defendant’s behaviour was reprehensible in the view of the common man—and therefore of the jury—and not sound business practice, but was not fraud because it was not dishonest. At that margin, a defendant might feel better able to explain their position to a judge than to a jury.

Nothing that I say should be taken as an expression of a view contrary to that which I have expressed throughout progress of this Bill and preceding Bills. I believe that the jury is an essential part of the process, but I can conceive of a position whereby the defence would want a judge-only trial.

My last point returns to principles. I have mentioned the principle of equity, but there is a further principle. As my hon. Friend the Member for North Southwark and Bermondsey said when speaking to the previous amendment, the Solicitor-General, in presenting the case for the Bill on Second Reading and in Committee, has come perilously close to saying that one of its purposes is to secure more convictions, because more people will be found guilty by a judge than by a judge and jury. Considering that one purpose of it is to replace the finding of fact by a jury with the finding of fact by a judge on the basis of the same evidence, that is a worrying principle on which to work.

That concern could be dispelled at a stroke if the Government were to accept the new clause, which would make it clear that not only the prosecution but the defence could expect the interests of justice to be best served by a court without a jury. Nothing could better exemplify that than a clear and explicit statement that the Bill is not purely a device to secure more convictions but is intended to serve the best interests of justice. For all those reasons, I shall be interested to hear the Solicitor-General’s response to the right hon. and learned Gentleman, who made an interesting point.

Dominic Grieve (Shadow Attorney General & Shadow Spokesman On Community Cohesion, Law Officers (Assist the Home Affairs Team); Beaconsfield, Conservative)

Some Members will recollect that when we considered the Criminal Justice Bill in 2003—it introduced section 43, the matter now under consideration—we considered whether jury trial should be restricted for several different categories. One of the principal arguments at the time, and one on which we persuaded the Government to back down, was over the Government’s wish to give a general right to the defendant to obtain a trial without a jury. The right could be denied in cases where it was thought that the defendant was trying to avoid the wrath of the public; that is, the defendant might consider that a compliant judge would be kinder than a jury. I took grave exception to the principle and argued against it. As a result, it was eventually defeated in the Lords and the Government dropped it.

We also considered whether to get rid of juries for cases in which jury nobbling had taken place, or where there were grounds to fear that it might take place and justify, in effect, a Diplock court because the trial could not take place with a jury. For obvious reasons, the prosecutor would normally seek such a ruling, because, on the whole, defendants would not seek a ruling on the basis that they would nobble their own jury, albeit sometimes a defendant fears that somebody else—for example, a co-defendant—might nobble the jury to his prejudice.

Leaving that to one side, I have never been keen on the idea of defendants being able to opt out of jury trial. However, having said that, my right hon. and learned Friend the Member for Sleaford and North Hykeham made a good case, because what is sauce for the goose is sauce for the gander, and there is a lack of equality of arms in a process in which only the prosecution can argue that the seriousness, complexity and length of a trial is such that the jury should be removed, and the trial should take place by judge alone. If the Government are arguing the principle that it is offensive to good justice that such long, complex trials should be allowed to take place with a jury, I cannot see why the defendant should not be allowed to make that argument as well.

Moreover, if we are to end up with multi-handed trials, which often happens—it is common for four, five, six, seven or eight defendants to be tried for fraud together—when the case goes before the Lord Chief Justice on an application by the prosecution for trial by judge alone, it must at least be possible that different defendants will have different views on the matter. Some defendants may welcome the idea of trial by judge alone, but others may argue that they wish to be tried by a jury. Therefore, while the system in the Bill allows such an argument to take place, it seems to be a little defective, whereas the new clause tabled by my right hon. and learned Friend would establish straightforwardly and clearly that all parties can argue one way or the other. I do not think it beyond the bounds of possibility that there might frequently be circumstances in which all sorts of arguments would be made from different angles.

To take an example, the Solicitor-General raised the issue of the full criminality being exposed. One consequence of the exposure of full criminality, as an example, is that it frequently happens—I have been involved in such trials with juries—that there are two principal defendants and a third defendant whose role  in the overall alleged fraud is pretty minimal. He, however, has to sit through months of evidence, while his barrister picks up substantial fees for doing absolutely nothing because it is not until day 56 of the trial that he finally comes to the witness box to give the bit of evidence that concerns his client.

In such cases, there might well be arguments for severance, and one of them might be that one lot of defendants says, “It is a long and complex trial. We would like it to take place in front of a judge alone, because that would shorten it,” whereas the other defendant says, “This is a long and complex trial, and it will be made even longer if I have to appear in front of a judge alone; I want it to be severed, and I want to argue to be tried in front of a jury, because my case is a short and simple one.”

I give that by way of illustration. I might add that that argument could even take place as the Bill stands. Given that one can easily foresee a multiplicity of arguments, I must say that my right hon. and learned Friend has made a powerful and compelling case and I will be happy to support him if the matter goes to a vote. I see that the Solicitor-General has a full reply to make. It might be that on this issue we have persuaded him that there is merit in the point that is being made.

Mike O'Brien (Solicitor General, Law Officers' Department; North Warwickshire, Labour)

I have in my hand the original clause that the Government included in the 2003 Bill. At that stage, it was our intention that there should be an ability for the defendant to waive jury trial. In that case, we also provided for defendants taking different views by giving a veto to a defendant. I am curious, because the Conservatives strongly opposed the provisions at that time and it seems that they nowtake a somewhat different view, as do the Liberal Democrats. Can the hon. Gentleman say whether, if we introduced a provision such as this, which we had not intended to do, the Conservatives—and, perhaps, the Liberal Democrats—would be disposed to support it?I might well be disposed to give it serious consideration.

Dominic Grieve (Shadow Attorney General & Shadow Spokesman On Community Cohesion, Law Officers (Assist the Home Affairs Team); Beaconsfield, Conservative)

I fairly laid out, I hope, two key points. First, my principled opposition to opening a door that allowed people to elect trial without a jury. That is what was debated during the passage of the 2003 Bill, and it is something to which I remain resolutely opposed because I believe in jury trial. I made that clear then, and I am sure that it coloured my approach to the various areas in which the Government wanted to restrict trial by jury. However, I accept that if clause 43, which I do not want to see on the statute book, is to be placed on the statute book, then there may be an argument—the one put forward by my right hon. and learned Friend the Member for Sleaford and North Hykeham—for saying that what I have described as fairness or sauce for the goose and sauce for the gander demands that a defendant should be able to make a similar application.

Although, as I indicated, I can see that that argument could take place in cases in which there is more than one defendant, it ought to be possible, too, if there is a single defendant. I do not know what the Solicitor-General wishes to do about that. In any event, it is not my amendment; it is that of my right hon. and learned Friend, who will doubtless respond shortly.  However, we could leave it for the moment if the Government wished to return to the matter on Report; it could be considered in another place; or we could all reflect on it.

My right hon. and learned Friend makes the compelling case that if we allow one party to ask for something in those circumstances, once we have conceded the principle and even though we did not like doing so, there will be a strong argument for letting the other party make a similar application. I am quite prepared to consider it, although it may be wise to reflect on it briefly before trying to reach consensus. As it is not my new clause, however, I defer to my right hon. and learned Friend—and to the Solicitor-General.

Mike O'Brien (Solicitor General, Law Officers' Department; North Warwickshire, Labour)

It has been an interesting debate. The proposal that the Government put forward in the Criminal Justice Act 2003 was similar to that being put forward as a new clause by the right hon. and learned Member for Sleaford and North Hykeham. If my recollection serves me well—I stand to be corrected—the Conservative party strongly opposed the idea, as did the Liberal Democrats. They now support the provision.

It had not been the Government’s intention to revive the proposal for the defendant to have a waiver on jury trial. However, I am more than happy to reflect on the idea. Some time ago, the Government would have been disposed to accept not the broad recommendation of the Auld review for a general waiver but a specific provision that would give a defendant a veto on a non-jury trial, so that if one defendant wanted a jury trial and the other did not, a jury trail would take place, unless the prosecution had made its application in the normal way.

That is how we dealt with it, but I have been led to believe by the substance of the debate that Opposition Members are seriously prepared to revisit the matter and would be prepared to support a Government amendment on report. I do not know whether we would be in time to do it on Thursday, but we might be prepared to table a Government amendment after due reflection and some discussion. I give no undertakings at this stage; I say only that I am prepared to reflect on the matter and discuss it.

I have listened with care to the proposals of the right hon. and learned Member for Sleaford and North Hykeham. I do not envisage that it will unduly delay the passage of the Bill. We have always tried to proceed through consensus. Given the strong speeches made by the right hon. and learned Member and by the Liberal Democrats in favour of the amendment, and the encouragement of the Opposition spokesperson, the hon. Member for Beaconsfield, I feel that the right hon. and learned Gentleman might not wish to press the matter to a Division, and that he will agree that we should reflect on it and perhaps return to it on Report.

Douglas Hogg (Sleaford & North Hykeham, Conservative)

I am grateful to the Solicitor-General. I realise that he is not giving an undertaking to come back with an amendment on Report that would encapsulate or wholly reflect my thoughts. However, I understood him to say that he would give serious consideration to the principle. He indicated that he might be willing to  embark on negotiations and discussions with Front Benchers. I would be rather pleased to be associated with those discussions. That said, it would be churlish not to welcome what the Solicitor-General has said.

I have told you already, Mr. Bercow, that my knowledge of procedure is 20 years old. Do I need the leave of the Committee to withdraw my motion? If, by any chance, the Government do not introduce proposals of the kind that we have outlined, I am sure that the Committee will not be surprised if I seek to catch the Deputy Speaker’s eye and move something similar on Report. I beg to ask leave to withdraw the motion.