New Clause 1
Fraud (Trials Without a Jury) Bill
5:45 pm
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.