New Clause 2
Fraud (Trials Without a Jury) Bill
6:00 pm
Douglas Hogg (Sleaford and 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.