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