New Clause 1
Fraud (Trials Without a Jury) Bill
5:30 pm
Douglas Hogg (Sleaford and 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.