Douglas Hogg (Sleaford & North Hykeham, Conservative)

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

The new clause is a safeguard provision. If one refers to section 43 of the 2003 Act, one will see that there are precious few safeguards for a defendant. The only criterion applicable to an order as to whether a judge-alone trial is made is that which is set out in section 43(5). There, the court is not directed in any strong way to consider the position or the arguments of the defendant, and in general terms of fairness and parity, that seems to be unfair. Let us remember that under the existing provisions, the Crown is the party who makes the application, and one must assume that the Crown—the prosecution—is under the belief that it is in the Crown’s interests to make it. However, the Crown is not obliged to consider the welfare and interests of the defendant, nor is the court so directed in any direct manner. Consequently, the interests of the defendant do not seem to be properly protected under the existing legislation.

The Government from time to time talk about rebalancing the criminal system. I am deeply suspicious whenever I hear that, because I subscribe to the old-fashioned view, which I believe none the less to be right, whereby it is better by far that the occasional guilty person escapes justice than that innocent people are convicted. Incidentally, that view is regularly reinforced by Lord Bingham, the former Lord Chief Justice, who has committed himself to it in several recent judgments. I entirely agree with him. I have seen miscarriages of justice, and I have been associated with them in the criminal courts. I have seen people convicted of serious offences when in my judgment they should not have been. It is unpleasant and upsetting, and it should not happen in a mature judicial system. I want, therefore, proper safeguards.

One must ask, “In what circumstances would a defendant assert that a judge-alone trial might be unfair?” We must leave aside the fact that many judges become prosecution-minded. It is important to keep that fact in mind, but it would be difficult to articulate to the trial judge. I have practised at the Bar off and on since 1968-69, sometimes more off than on, because I was a Minister for 13 years, but it does not alter the fact that I am pretty familiar with judges, and many become prosecution-minded. I agree that that argument would not be easy to advance to a trial judge in favour of a jury or of denying a judge-alone trial, but it is a fact.

There are other curious circumstances in which that argument may arise, most notably the perverse verdict. Oddly enough, despite the name, “perverse verdict”, it is one of the important safeguards that a citizen has against the state. A perverse verdict operates when the Crown can establish the evidential requirements needed to sustain a conviction, but, broadly speaking, one should not convict in that case. There are several examples of that; I shall come to the fraud example in a moment.

In general terms, there is the mercy killing type of case in which murder is made out in accordance with the ordinary test of the Homicide Act 1957, but it was done to spare a person a long and horrible death. The perverse verdict is where the jury says, “We will not convict in such a case albeit that the legal requirements have been established.” Although it concerns a different point, the Ponting case is an example of the jury deciding that although the evidential requirements have been made out, the Government have acted oppressively in bringing the prosecution at all.

Stephen Hesford (PPS (Rt Hon Baroness Amos, President of the Council), Privy Council Office; Wirral West, Labour)

Our common-law jurisdiction has developed over hundreds of years and all that common law is judge-made. As time goes by, judges review previous judgments and depart from them or make different judgments. Does not the right hon. and learned Gentleman envisage that a judge might come up with a perverse judgment, to use his term, if he or she thought the prosecution oppressive?

Douglas Hogg (Sleaford & North Hykeham, Conservative)

There is no chance of that at all. If the legal requirement were made, a judge would convict as a matter of fact, but a jury might not because juries bring a different set of considerations to a case. They bring the consideration of a citizen assessing the propriety, appropriateness and broad justice of the case. It is not open to a trial judge who is the judge of both law and fact to do that, but it is open to a jury. Perverse verdicts are so called because the jury should not reach that decision, in one sense, and that is why a judge will not do it. A jury, however, might, and the Ponting case is one such case.

Juries might reach similar decisions in fraud cases in which the Crown has behaved in a way that is oppressive but falls short of “abuse of process”—a technical term with which lawyers are familiar. For example, in a case in which there has been unauthorised eavesdropping, inducements to make witnesses say things or coercive conduct of a kind that does not quite so infringe the PACE regulations as to make the evidence inadmissible,  the jury might well decide that they are damned if they will convict albeit that the legal requirements are met. The perverse verdict is therefore an important safeguard in protecting the individual as against the state, and I can well see why a defendant might say, “I want to have the benefit of a jury trial.”

There is another argument that flows from a point made by my hon. Friend the Member for Beaconsfield. He is entirely right to say that there is often a multi-handed defence in which one defendant is the minnow and the other defendants are the sharks. In such a case, the minnow might well want a jury trial. My new clause would enable the minnow to say, “Please let me have a jury trial.” That might have one of two beneficial consequences: the minnow might win; or the minnow’s application might be so likely to win that the Crown would make an application to sever so that the minnow’s case could be tried separately in a different pond. That is to safeguard the interests of a defendant.

There is nothing in section 43 that seriously protects a defendant but there should be. I am perfectly willing to accept that the language in my new clause might be a little off, but, incidentally, it is modelled on section 43(7) in which the phrase “significantly disadvantage the prosecution” is used by the Government. They cannot, therefore, be heard to quarrel with the phrase “significantly disadvantage a defendant” because that is their language while the phrase

“or otherwise prejudice a defendant”

is a concept very well known to the criminal courts.

I hope that the Solicitor-General, in the surprising spirit of compromise that is developing in the Committee and which as a good-natured chap I encourage, comes forward to say, “Well, he has a point and I will take it away and give it serious consideration”. If he does that, on the same terms as I have withdrawn new clause 1, I will withdraw new clause 2.

Simon Hughes (Shadow Secretary of State for Constitutional Affairs & Shadow Attorney General, Constitutional Affairs; North Southwark & Bermondsey, Liberal Democrat)

I rise to support the new clause and will briefly say why. At the moment, when an application is made, the law as drafted requires the judge to consider a limited number of issues. The most important of which is whether a case is burdensometo the jury; that is the effect of section 43(5) of the2003 Act. There is a definition of what may make a case burdensome that we have partly touched on in earlier debates: complexity, length or both. The judge then has to assess whether complexity or length can be dealt with by procedural matters and if it should become a procedural question. There is only one other further prerequisite in the current legislation. That is that the judge is prohibited by law from coming to the conclusion that to dispense with the jury would be reasonable if it would severely and significantly disadvantage the prosecution.

Douglas Hogg (Sleaford & North Hykeham, Conservative)

I think that subsection (7) applies when considering whether or not there can be changes made to the way the crown is handling or proposing to handle cases.

Simon Hughes (Shadow Secretary of State for Constitutional Affairs & Shadow Attorney General, Constitutional Affairs; North Southwark & Bermondsey, Liberal Democrat)

The right hon. and learned Gentleman is quite right; I was not sufficiently precise in my language.

The last part of the consideration is whether a trial would be able to continue by management and that is a matter when the interests of the prosecution are weighed in the balance.

There is no consideration requirement in the present Act for the defendant’s interests. The right hon. and learned Gentleman, in tabling the new clause, seeks to point out that both parties should be considered in this trial as well as the jury’s interests. The new clause has the merit of introducing a third and highly relevant player into the mind of the judge by law when going through the process. Let us look at the jury—is it in their interests? Let us look at the prosecution—would it be to their disadvantage if the processes were changed? If it is to their disadvantage, that road becomes a cul-de-sac. The right hon. and learned Gentleman asked about the defendant, but he went further than that and pointed out that what is in the interests of one defendant may not be in the interests of all defendants. That, as we all know, it always a material consideration.

The same reasoning determines whether people elect for a summary trial in a magistrates court for a lesser offence or go to a jury. Often one party, normally the less involved participant in the events that give rise to the charges, prefer a jury because it is perceived they would give consideration to the separate roles more carefully and give the benefit of the doubt. The judge, of course, follows the same rules in theory, but would not have the same confidence of a defendant as a jury. However, there would be the ability to distinguish those things. Presuming that this year the Lords will reject the proposal and next year the Government will bring it back and use the Parliament Act, if we are driven to have a new process that involves non-jury trial, it seems imperative that the interests of the defendant is in the mind of the judge when considering an application. That must mean the interests of each and every defendant and that is why the new clause has much to commend.

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

I do not want to take up much more of the Committee’s time. It seems to me that in discussing new clause 1 we touched on the potential of opening up a new area. Although our principled opposition to this Bill remains total—I still believe that the Government will have to resort to the mechanism of the Parliament Act to get it through another place—if at some point in the future it is to go on the statute book, even if I dislike it in principle, I wish it to be as good as possible.

If we are to end up with a situation where both the prosecution and the defence can apply to the judge for trial without a jury this will have an impact on all the preconditions that have to be looked at in order to ensure that there are proper safeguard. It probably also applies to the new clause 4 conditions that we will come on to look at thereafter. As drafted at the moment, section 43 has the prosecutor’s view in mind and not that of the defendant.

If prosecution and defence representations are considered and there is an option for the defence to ask for trial without a jury in the very limited number of cases suggested by the Attorney-General and Solicitor-General, it will be very important that those measures  should be so tailored first to emphasize the desirability of maintaining trial with a jury whenever possible, as long as it is not contrary to the interests of justice, and, second, to ensure that no party is placed at a significant disadvantage.

My right hon. and learned Friend the Member for Sleaford and North Hykeham has highlighted an important area in which I have always thought section 43 was deficient. It seems to look at mechanistic and procedural matters rather than at the issue of prejudice. I hope I am not opening too much of a can of worms because I can see that this is a debate which could continue well into Report if we were to carry out a major alteration to the Bill.

I would encourage my right hon. and learned Friend the Member for Sleaford and North Hykeham to withdraw the motion because, clearly, if we are moving towards the notion that a defendant also should be able to make an application, we would need to be looking at new clause 2 with that in mind. I would wish wherever possible to preserve jury trial even if one side or the other were asking for something different.

That concludes my remarks on the particular new clause, although I suspect that when we come to new clause 4, I am likely to repeat very much the same thing, which may shorten matters. One needs to look at the totality if we are to shift to a defendant being able to make the application as well.

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

I listened with care to the arguments put forward in particular by the hon. Member for Beaconsfield about the interrelationship between this provision and the previous one. I accept that to some extent if we were to look at the previous issue then we might wish to consider some of these issues.

Having said that, let me take the new clause at face value. The effect of new clause 2 would be to allow the defendant in the course of the Bill to argue to the judge that his case would be heard by a jury because he would be significantly disadvantaged by a judge-alone trial. The Government, however, do not accept that a non-jury trial is capable of prejudicing a defendant or placing him at a disadvantage and therefore we would not accept the new clause.

The only example that the right hon. and learned Member for Sleaford and North Hykeham has provided of where the defendant might be disadvantaged seemed to be that he would be hoping for a perverse verdict. As the right hon. and learned Gentleman has said, the judge is less likely to come to a perverse decision on the evidence than is the jury. The judge is also unlikely to decide that he should not hear a case because of the improbability that he would be perverse.

In the circumstances, I am not sure that the argument that the right hon. and learned Gentleman has put forward can possibly stand, because we would be asking the judge to decide on something where he must conclude that it would be perverse of him to decide in the way that the right hon. and learned Gentleman suggests he might. The judge would be deciding that he might be perverse, and that is nonsense.

In the sorts of case to which the right hon. and learned Gentleman drew attention, for example, the Ponting case—I can think of others—we are unlikely  to have a non-jury trial. The Bill deals with serious and complex fraud cases, and the Ponting case was an entirely different matter.

The right hon. and learned Gentleman argues that a perverse jury verdict is a safeguard in particular kinds of cases. That is an arguable point. The alternative argument is that the interests of justice are that there should be justice according to the law, and that it is for Parliament to look at that law and alter it as Parliament sees fit. I hear his point about perverse jury verdicts. In the past, they have been lauded as the democratic view of individuals, even though such a view may, on occasion, be contrary to the law. The complex and serious fraud cases that the Bill deals with are not the sorts of cases where that issue is likely to arise.

The latter part of the right hon. and learned Gentleman’s proposal—the change in proposed new subsection (3)—is different. In considering a section 43 application, the judge has to decide whether there are steps he could take that would reduce the length or complexity of that trial, since that might render a non-jury trial unnecessary. Section 43(7) requires the judge to disregard any step that would significantly disadvantage the prosecution. If there were steps that could reduce the length or complexity of the trial which might disadvantage the defendant, as opposed to the prosecution, we would agree that, rationally, they ought to be disregarded under subsection (7). We cannot think of any such steps in the Bill, and we are not persuaded that we can accept the new clause.

The right hon. and learned Gentleman raised an issue, as others have done, about the issue that I am going to consider in respect of the defendant waiver. I will examine the matter, although he has not persuaded me on it. I think that he had a stronger argument on the defendant waiver more generally. Again, I give him no undertaking and I say to him that I am unlikely to be with him on the point. I hope that he feels that he does not have to press this new clause to a Division. If he does not, I shall ask my hon. Friends to vote against it.

Douglas Hogg (Sleaford & North Hykeham, Conservative)

Again, I am seeking compromise wherever I can get it. I note that the Solicitor-General has less enthusiasm for new clause 2 than he does for new clause 1. I draw the important conclusion that there might be considerable progress on new clause 1 and perhaps some progress on new clause 2. I welcome that, as far as it goes. On that basis, I am minded not to press new clause 2.

However, I say the following to the Solicitor-General and the Committee at large. First, do not overlook the importance of perverse verdicts. They are a safeguard that addresses the risk that the state might act in an oppressive way, as it sometimes does. It is good for a jury to be able to say, “Up with this we will not put.”

Secondly, if the Solicitor-General is right in saying that the circumstances in which a judge will be satisfied that the defendant’s interests will be prejudiced by a judge-alone trial cannot arise, in truth no harm would  be done by including the new clause in the Bill, because it would not carry any weight. However, the defendant’s interests would be protected in his or her own eyes, and we are in the business of dealing with parity.

My last point, which I did not hear the Solicitor-General deal with, is that when there is more than one defendant, there is the minnow, who may well decide that there are advantages in seeking a jury trial. Their interests must not be ignored. If the Solicitor-General will forgive me, the minnow, in this case, escaped his net. On that basis, and subject to my remarks, I beg to ask leave to withdraw the motion.