New Clause 1
Fraud (Trials Without a Jury) Bill
5:45 pm
David Heath (Shadow Leader of the House of Commons & Shadow Cabinet Office Minister, Cabinet Office; Somerton and 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.