Douglas Hogg (Sleaford & North Hykeham, Conservative)

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

The new clause is an important safeguard. I concede at once that its purpose is to redraw the test set out in section 43(5) of the 2003 Act. The hon. Member for North Southwark and Bermondsey mentioned that test. I wish to discuss the criteria on the basis of which a judge-alone trial is to be ordered. As the Bill stands, a judge-alone trial will be ordered when, by reason of complexity or length, a trial is likely to be

“so burdensome upon the jury that the interests of justice require”

and so on.

The attention of judges is therefore drawn to the burden on the jury caused by either complexity or length. On Second Reading and in the debate on the 2003 Act, Ministers said time and again that, for the most part, they were not seeking to assert that such cases are so difficult that a jury cannot comprehend what is going on. They are concentrating on the burdensome nature of such trials, which is not peculiar to fraud cases. Many classes of case could be said to be burdensome by reason of complexity or length. Terrorism trials are cases in point—there have recently been very long trials—as are conspiracies to import drugs. Trials can be very lengthy and complicated. The same is true of multi-handed affrays, for which trials can be very long and could therefore be said to be burdensome.

Once the concept of burdensomeness as a result of complexity and/or length has been introduced, that asserts a principle that drives a coach and horses through our commitment to jury trials. Once that precedent is established, it will be difficult to say that there is no argument for doing away with jury trials in terrorism, affray, conspiracy and other cases. I strongly object to a test based on the burdensome nature of trials, because it establishes an unfortunate precedent.

I have therefore tried to apply a different criterion. Generally, I do not think that a jury would find it too complicated to determine a trial, but I am prepared to acknowledge the possibility. If a case arises whose complexity and length impugns the safety of the verdict, that seems a situation where the Committee might look favourably on a judge-alone trial. I have already given examples of how that situation might work in a defendant’s favour, as did the hon. Member for Somerton and Frome. I strongly resist the proposition that we should rely on the burden placed on the jury. However, in a small number of cases, because of complexity or length, it might be proper to consider whether or not a verdict is safe. That is a different approach, and I commend it to the Committee.

It is unlikely that there will be many such cases, but I do not exclude the possibility that there will be one or two every so often. Therefore, I hope that the Committee will give favourable consideration to what I admit is a redraft of the criteria set out in section 43(5) of the 2003 Act.

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

I am sympathetic to the right hon. and learned Gentleman’s argument, and he has given reasons for it. The most important issue for us to face could have been the burdensome consequences of trials for juries. The Liberal Democrats think either that that is not the case, that the burden on juries is not unique to fraud trials or, if it is, that it has been partly dealt with so that such trials will be less burdensome. For one, another or all of those reasons, we do not think that there is a reason for moving to a different sort of trial.

This is a more substantive and well rounded point. An experienced judge would be well able to consider it. Bluntly, it is on a different level from the pragmatic, functional matter of length of trial, documentation and number of witnesses. It relates to what we in this country train and employ judges to do—they are all trained now, and well trained—which is to conduct a trial that, in the end, proceeds fairly.

There is a danger with complex trials. They could be complex trials for offences of affray, which is halfway down the league table of seriousness, or for terrorist offences; they could be complex trials involving detailed forensic evidence for offences of serious assault, homicide and so on, which can be burdensome because of the trauma to the jury and witnesses. The danger is that, for all sorts of reasons, the verdict might not be safe.

Juries are confronted with the issue of how to ensure that they bring in a safe verdict. Juries are told over and again by the judge in summing up that they have to be satisfied that they are sure beyond a reasonable doubt. The right hon. and learned Gentleman made the point that such a verdict may err on the side of acquittal rather than give a verdict that was, as it were, just over the line of being persuaded. The test is much higher. The bar is much higher because we do not want thisto be a country in which convictions are thought tobe dubious, questionable, marginal or any other appropriate adjective. We have unanimous verdicts, but in exceptional cases, verdicts of 11 to one or 10 to two.  

New clause 4 is a serious and more rounded proposition, and is worth considering. To be fair to the Solicitor-General, it deals with an issue that has been reasonably addressed, whereas the issue of burdensome consequences has not been, for reasons that we have talked about—not least the procedural changes. I would be interested to hear his comments. My hon. Friend the Member for Somerton and Frome and I do not have a definite view, but if we must have a test for a trial to be conducted without a jury, we are sympathetic to the one in new clause 4. It may be a better, safer and more rounded test than the one in the current legislation.

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

I welcome this opportunity to look at new clause 4. It is a probing new clause to tease out the reasons why the Government think that jury trials might not be satisfactory in very long cases. There is a slight sense that we sometimes avoid the nub of the matter. The Government argued that very longtrials are burdensome on juries, but, of course, some very long, non-fraud trials will continue to be burdensome.

At the same time, although we have always accepted that trials are burdensome, evidence, such as that from the report into the Jubilee line case, does not support the view that juries cannot hear such cases, although, admittedly, our pool of information is limited because of the difficulty in interviewing juries. Personally, in my experience of fraud trials, or, indeed, trials in general, verdicts have never been inexplicable or appeared perverse. It is true that, on occasions, I have seen people acquitted when I might have taken a different view—that tends to happen when one is prosecuting—but I have never felt that the jury had done something plainly wrong or that there was no material on which it reached its decision. That is one of the reasons why I have so much faith in jury trials.

When applying my own experience, however, perhaps I should be more concerned about whether I have ever had a case in which a guilty verdict was returned and I was worried because I thought that the defendant ought to have been acquitted. We know that such cases happen and, of course, those are the ones that get overturned in the Court of Appeal with the wonderful words of the appeal judge: “We feel that there is a lingering doubt”. However, statistically, such cases are few and far between and in my professional experience I hardly ever encountered them.

When we ask why we should get rid of juries in long fraud trials, we come to some difficult issues, on which my right hon. and learned Friend the Member for Sleaford and North Hykeham touched. He raised the question of whether the truth was not simply that the Government want to get rid of juries in long fraud trials because they believe that they will secure a higher rate of conviction. They are wrong. I do not believe that that is likely to happen.

There is a final possibility. If jurors are forced to remain in court for a very long time listening to a fraud trial, might that make them prejudiced against the defendant to such an extent that they would, at that stage, lose sight of their duty, so that the safety of the verdict could be impugned?

These are quite difficult areas. I see this as a probing new clause designed to tease out what the Government really think. If they have faith in the jury trial system—they are always repeating that they do—they have no reason to feel that jury verdicts are less safe than any others, and I think that that is their stated position. Do they feel, however, that in long trials the safety of the verdict can be called into question? If so, would the Solicitor-General like to tell us why?

I personally take the view—I can only repeat it—that on the whole jury trial delivers a very high quality of justice and does so in a way that is transparent, that the public have come to accept and that, for the reasons given by my right hon. and learned Friend the Member for Sleaford and North Hykeham, is seen to be fair and to provide a safeguard against state oppression—a safeguard that is so important.

If the Solicitor-General has other views, this is our opportunity in Committee to understand what exactly is troubling the Government about long trials. Is the issue anything other than just the burdensomeness to jurors of having to attend court for a long period?

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

I fear that if the new clause is pressed, we will end up voting on it, because it would alter the criterion for determining an application under section 43. The question would no longer be how the length and complexity of the trial would affect the burden imposed on the jury, but how those factors would affect the safety of the verdict. That would be a significant change, because it has never been the Government’s position that there are doubts aboutthe verdicts returned by juries in serious fraud cases or that trial without a jury is necessary to resolvethem. Rather, our position throughout has been that section 43 is needed for the twin purposes of limiting the burden on the jury in such cases and of enabling justice to be done by exposing in court more fully the alleged criminality. The condition set out in the new clause would render section 43 ineffective.

I have heard arguments advanced that other types of trial can last a very long time, and of course they can. However, there is a particular history in relation to serious and complex fraud cases that does not exist in relation to those other types of case. It is not only that eminent reports such as the Roskill report and the Auld report support our view or that various representations have been made to Governments over time; it is that there has been a series of cases. Reference was made to some of the cases on which we rely. I shall talk about some of them—there are others—in which problems arose, in which there were burdens on juries or in which the full criminality of the case was not able to be exposed. Some of the cases are older; some are more recent.

The first case is R v. Cohen and others—the Blue Arrow case—which was completed back in 1992. The allegation was that, in effect, there was an agreement to rig the market. The case involved complex evidenceon rights issues and the basis on which a takeover by Blue Arrow of another company was structured. Defendants were convicted of conspiracy to defraud and given suspended sentences after a trial that lasted a year. The convictions were subsequently overturned on appeal.

The prosecution had significantly reduced the prosecution case before it came to court; that had already happened in order to get the case before a jury. Even so, the trial judge pruned the case further during the trial, greatly reducing both the scope of the indictment and the complexity of the counts. The trial judge ordered further deletions from the indictment between counsels’ final speeches and the jury’s deliberations, directing the jury not to consider the admissible evidence relating to the deleted particulars. That was held to be a material irregularity by theCourt of Appeal when it subsequently considered the matter.

Additionally, the trial judge severed the case into two trials to make it “manageable” for the jury. That still meant 10 defendants facing trial together. On the burden experienced by the jury, the trial judge, Mr. Justice McKinnon, said that no jury should be asked to cope with what that jury had to endure. Following the appeal, the Court of Appeal said that there was

“a significant risk of a miscarriage of justice resulting from the volume and complexity of the evidence.”

It noted that the jury retired with 956 pages of exhibits and such recollections that they might have had of94 prosecution witnesses giving evidence between seven and 11 months earlier and of counsels’ final speeches having been delivered between 59 and 65 days earlier.

The Serious Fraud Office’s view is that the pruning of the case and the trial severance undermined the prosecution’s ability to present a cohesive or coherent case. Measures designed to improve conditions for the jury, such as two periods of extended leave over Christmas and the summer, were said to have helped destroy the basic assumption that a jury determines guilt or innocence on evidence that it is able to comprehend and remember. It is not so much the jury’s comprehension that was in question, but the sheer volume of the evidence.

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

I appreciate the Solicitor-General’s concentrating on complexity and length rather than the new clause, which is about the impact on safety. The Jubilee line case suffered massive interruptions. Notwithstanding that, the evidence was that when the jurors were brought together in one room some time afterwards and asked to recollect the case and the key issues, they were able to do so with little difficulty. I suggest that what the Solicitor-General says is mere hypothesis. The only evidence we have, limited as it is, tends the other way.

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

The hon. Gentleman asked me to set out the arguments about the burden on juries. That is why I am taking so much time. Members of the Committee will have to bear with me, because it is worth the Government setting out some of their concerns about that burden. We have never said that juries are unable to understand such cases—what the hon. and learned Member for Harborough (Mr. Garnier) called the stupid jury argument. That is not the Government’s view, but we do think that the burden on the juror and on juries is unacceptable in certain cases and that, in those circumstances, we should be able to have a non-jury trial.

The hon. Member for Beaconsfield mentioned the Jubilee line case. In his report, Her Majesty’s inspector of the Crown Prosecution Service questioned whether it would have been suitable for treatment under section 43. In a sense, the question of whether the case would ever have been dealt with in a non-jury trial is moot. Of course, problems arose in the management of that case and in the handling of the charges of conspiracy to defraud. There were issues in relation to the illness of a defendant, and some on the disjointed handling of evidence. More particularly, the problems that arose in relation to the Jubilee line case that were exposed in the inspector’s report related to the impact of the long trial on the lives of a number of the jurors. The jurors found that when they returned to work their promotion had been affected, their relationship with their employer has been affected, or the way in which they were able to deal with business had been affected, and the burden on them was significant. I am not sure that the Jubilee line case entirely proves either of our points, although it does give some evidence on both sides of the argument. Yes, the jury in the Jubilee line case gave clear evidence that it understood the case, which was very complex, but it also said that there was a burden on individuals.

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

That point I have accepted, and it is agreed throughout the Committee and the House. Will the Solicitor-General either tell us now, so that it is on the record, or check later, first, whether he has figures that show, for the period before and after the Jubilee line case, which was the one that gave rise to all sorts of reports, how many cases dealing with fraud have taken more than three months, six months or—I am trying to ask the question that allows the easiest answer, if the information exists—a similar period, and, secondly, whether the same figures exist for that period across the criminal courts generally? Obviously the burdensome point will apply in those cases too, because of the length of time away from normal life. It would be helpful for the debate, as much now as on Report, if there were figures that showed how many criminal trials in 21st century Britain—or at least England and Wales—currently exceed the three, six and nine-month hurdles.

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

It might be useful to refer to the Serious Fraud Office’s annual report for 2005-06, which says:

“In this year ten trials were completed including23 defendants, among whom 13 were convicted and ten acquitted”.

I shall have to come back to the hon. Gentleman on the number of trials that lasted longer than six months. I have the figures, but it will take me a moment or two to look them up, although I hope to come up with them shortly, as I quoted them in the debate that we had in the Chamber and they are in the transcript.

I want to take some time to consider those cases in which there was a burden on juries, because it is important to set out the Government’s views in relation to them. Another case that comes to mind is the Maxwell case, which is I am sure is known to all right hon. and hon. Members. The indictment alleged eight separate conspiracies to defraud involving combinations of six defendants, plus two substantive counts of related false accounting.  The Maxwell brothers were acquitted in 1996, after the first trial lasting seven months. The second trial was stayed as an abuse of process. The prosecution had significantly reduced the prosecution case before it came before the court. Even so, the trial judge severed the case for trial management purposes and further reduced the number of counts put forward by the prosecution. The trial judge remarked that

“the prosecution and most of the defendants are agreed that, were it practicable, all the counts should be the subject matter of a single trial ... all are agreed that the length and complexity of such a trial would far outstrip the capacity of any jury”.

Following acquittals in the first trial, the judge due to hear the second trial, Mr. Justice Buckley, stayed the proceedings on grounds of abuse. He noted:

“When using his powers of severance the trial judge recognised that it would prevent the prosecution from putting before the jury the full weight of the case”.

He added that to accept the submission that the second trial should not take place would be

“to accept that in a serious and complex fraud, the limitations of jury trial prevent the prosecution from presenting a case which fairly and adequately represents the fraud alleged. If that is so, then jury trial is unfair and inappropriate.”

In the Da Costa case of 2004, a more recent case, the SFO decided to offer no evidence on a conspiracy to defraud. The allegation was that the suspects had been underwriting marine and other insurance on behalf of an Italian company when they were not authorised to do so. I approach the case with care, because I make no allegation in relation to those individuals. The Crown offered no evidence in relation to it, and it became clear that trying to present the complexity of the case would be burdensome and difficult. The legal arguments and the trial judge’s ruling, which suggested that the insurance contracts would have to be proved separately and could not be relied on to prove the illegality of the scheme as a whole, meant that the jury would be required to grapple with the common law doctrine of ostensible authority against a complex, highly detailed factual background involving thousands of marine insurance policies. In other words, the SFO decided not to proceed because the approach that was insisted on was so complex and unmanageable for a jury. I repeat that I make no allegation in relation to any of the defendants in that case, for reasons that hon. Members will understand.

I have previously referred to the Talbot Village Trust case. The trust was a charity. It employed professionals who, between 1985 and 1995, fraudulently overcharged for professional services related to construction works on major projects. Three of the five defendants were convicted by a jury. On 26 March 2004, one three-year custodial sentence was handed down, which was increased to six years on appeal because of its undue leniency. There were two suspended sentences. The trial judge ordered that the scope of the prosecutions be reduced for trial management reasons. That included evidence that for contracts of the construction company that was run by the acquitted defendants, profit margins were substantially larger than would be expected of such contracts. Even so, the trial lasted for 13 months. In many ways, that is a typical example of a Serious Fraud Office case, in which numerous individual transactions  have to be proved to establish dishonesty. The reduction in the scope of the prosecution case made it appear disjointed in the view of the SFO and undermined it in key areas, such as the establishment of dishonesty. That is why I refer to that case.

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

I am following carefully what the Solicitor-General says and I understand the argument. What he has not said is that there are cases with which prosecutors decide not to proceed because they would fail the test of being convincing in front of any tribunal. They would not be able to accumulate the evidence in a way that a single judge, three judges, a jury or other people would necessarily find convincing. That applies to all considerations of CPS or SFO cases. Although the Solicitor-General makes a good point, it is not persuasive that jury trial must give way so that those cases would work in front of a single judge and be successful, where others would fail and result in acquittal.

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

I hear what the hon. Gentleman says. He asked me earlier about some cases; I shall give him the answer that I did not have to hand then, before I deal with the substantive point. Between 2002 and 2005, 26 trials lasted more than six months, of which six lasted more than a year.

On the hon. Gentleman’s point, the nature of jury trial requires the presentation of oral evidence. By agreement with both parties, a judge may be able view some written evidence in documentation, either before or during the proceedings. He may be able to manage that documentation in a way that does not require the substantial oral presentation that might be necessary before a jury. Furthermore, defence or prosecution lawyers may feel that they have to explain things fully to a jury and so explain them at some length and in substantial detail. The judge, however, may be able to say to the lawyer who is making his presentation, “You have gone on too long. I understand your point. Move on to the next one.” Some hon. Members on the Government Benches may well feel that I am in that position now. That is the how a judge can deal with such a situation.

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

In my experience, it is always a dangerous moment when the judge in a civil case says, “I understand that point; move on.” One discovers subsequently that he does not understand it at all and is saddled with a difficulty.

I will touch on an important point that I mentioned on Second Reading, although I did not get an answer. I can see that if the prosecution and the defence agree to the acceptance of certain facts or material, the judge might have an opportunity to consider them and so short-circuit some of the oral evidence, but it must be clear that if the parties do not agree, whether the trial takes place before a jury or a judge alone, all the evidence must be laid in the usual way and read out if necessary. Without that, it should not be on the record. Even if they are agreed, it should still be on the record.

I am troubled by what the Solicitor-General said, because I do not see where the short cut lies. The logic of what he said is that some evidence not laid in court could still be considered by the judge on his own. In my view, that makes a fair trial impossible.

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

It is the case not only under Diplock court rules but in civil cases that judges may consider documentation. That is not secret; the documentation it is part of the pleadings, documents and evidence in the case. However, in jury trials, the documents will no doubt have to be explained at substantial length so that juries are fully cognizant of the surrounding circumstances. If a judge is known to be aware of those circumstances, a lot of that can be short-circuited.

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

Will the Solicitor-General give way?

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

Let me make this point. The hon. Gentleman says that it might not reduce the length of some trials. I accept that. On Second Reading, I accepted that because some trials might not be severed—all the counts might be included rather than being cut short and defendants might not be dropped off the end so as not to make things too complicated for the jury—some cases might well last longer than an individual severed case. However, the judge would be able to manage much more effectively the volume of material and breadth of the case and to deliver a fair verdict that deals with the defendant’s full culpability without placing an undue burden on 12 jury members.

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

To pick up on the first point about documents, in the jury trials with which I have been involved, voluminous documents were placed before the jury. Not all the documentation is explained in the course of the trial, but the documentation on which the parties rely must be explained and considered and individual paragraphs identified as key in documentary evidence so that the jurors can highlight it to consider later.

I do not really see that the procedure will be any different with a jury than with a judge, except that in terms of opening speeches, it might be possible, as has been said, for the judge to say, “I understand that point,” whereas prosecutors tend to go over ground carefully if they think that they are touching on areas of complexity. It worries me that the very long cases that I envisage will come out of the legislation might be burdensome to judges and lead to difficulties with verdicts and a lack of clarity.

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

Judges do a very good job for us and are very well paid for it. If they must take something of a burden in handling complex and serious frauds, that will perhaps be an instance in which they earn their salary. I shall not worry too much about that. It is incumbent on Members, however, to consider members of the public whose lives may well be significantly affected by the burden of having to sit ina serious and complex fraud case for a period of a year or more. We know from the Jubilee line case thatthat can affect their employment status and their circumstances, and we should not ignore that burden.

I was going to elaborate further on the Versailles case, the Global Wildlife Trust case and the PA spiral case, but in view of the time and the length of my submissions I shall spare the Committee that. Nevertheless, the burden on juries can be serious, and  we must ensure that it is recognised. The new clause proposed by the right hon. and learned Gentleman would change the terms of the judge’s decision, and would do so in a way that the Government do not find acceptable. It is axiomatic that no judge will make a decision that he believes to be manifestly unsafe to the delivery of justice—that is a broader consideration that judges will always have.

It is important to set out in statute the reason for the Government’s view that change must be made. The reason is clear: change is necessary because we need to ensure both that the burden on the jury is not disproportionate and that justice is properly done through exposure of defendants’ full culpability in complex and serious fraud cases. I hope that my references to older cases, despite being truncated, have demonstrated that judges who have to deal with such circumstances are very concerned about that burden and about the effect it has on presenting, handling and managing the case. The SFO, which has to prosecute the cases, is very concerned that the requirement to present complex and detailed evidence orally to the jury makes it difficult properly to set out a case to that jury. That has resulted in severing of cases, reducing of counts, and knocking off of some defendants from the end of charge sheets, none of which delivers justice effectively.

I accept that there are similar problems in some other types of case. However, complex and serious fraud cases have a long history of recommendation after recommendation, of judges calling attention to matters, and of Governments not—until 2003—doing enough about the problem. We are now intent on doing something about it. Justice needs to be delivered.

Douglas Hogg (Sleaford & North Hykeham, Conservative)

The hour is getting late, and I should not be surprised if, at the conclusion of the debate on the new clause, you might feel it appropriate to adjourn, Mr. Bercow. It is a matter entirely for the Committee, so I shall lighten the grief.

Let us keep in mind what we are about. We are trying to define the criteria that would justify a judge-alone trial. The Solicitor-General has advanced at some length the arguments in favour of the existing provisions in the Bill—which may be described as the “burdensome” provisions. I am bound to say that I do not agree with him, which is very largely because an unfortunate precedent would be set that would apply to other types of trial. I am realist, however, and I know full well that the Government have the majority on the Floor of the House and that they are clearly determined to push the idea forward. I think it is a bad idea, but so be it—that is the nature of parliamentary life.

We are also, however, in the business of improving legislation, and when the Solicitor-General was talking a thought occurred to me that I need to share with the Committee. If I may catch the Solicitor-General’s attention, I hope that he will reflect on it. We have accepted the possibility that the defendant will be entitled to apply for a judge-alone trial, and one has to define the criteria that will govern that application. The defendant might make an application on the grounds of burden, and of course subsection (5) of section 43 enables him to do so. But he might also make an application on the grounds that the length and complexity of the trial are likely to impact on the safety of the verdict.

The Committee was good enough to listen to two examples that I produced, one of which received support from the hon. Member for Somerton and Frome. In one example, the detail of the case was such that it might impact on the jury’s verdict; for example, so much interpretation or translation of documents was required that the jury might well become confused, and that would impact on the safety of the verdict. If the defendant is making an application for a judge-alone trial, he must be able to say why, but the reason might not be burdensomeness. It might be the one that I just advanced, at which point the impact on the quality of the verdict should be a criterion.

The example that the hon. Gentleman picked up on—perhaps I advanced it less clearly than he did—was when the concept of the defence is so difficult that it might itself impact on the safety of the verdict. He said, and I entirely agreed with him, that there will be cases where one is on the margin between what is illegal and what is questionable. At that point, a defendant may say to the judge, “This is such a complicated concept, and it involves so much history and so many details, proprieties, cross-national jurisdictions and this and that that a jury will not be able safely to come to a verdict.” The defendant might wish to use a concept of that kind to seek a judge-alone trial.

Therefore, on the basis of improving what I do not like, I am saying that if we must have the concept of burdensomeness, which I do not like, and given that the defendant might make an application, we should reflect on the need for criteria that go to the quality of the verdict on which the defendant can rely when making an application.

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

Given the late hour, I would ask the right hon. and learned Gentleman to come clean with the Committee. The new clause is tendentious. He does not believe that the jury can be impugned in its deliberation in a case. Neither do the Government believe that, yet he wants a defendant to be able to make that argument in order to get a non-jury trial. In fact, the prosecution will never make such an application to a judge because the Government and the Crown do not believe that the deliberations of a jury can be impugned. This is a wrecking amendment.

Douglas Hogg (Sleaford & North Hykeham, Conservative)

The hon. Gentleman is a confused and confusing Member. I do not like the Bill or the concept of burdensome—I do not make any bones about that. But we are where we are, and I am making some suggestions as to how the Bill might be improved. The Solicitor-General has been good enough to say that he will reflect on the desirability of the defendant’s being able to make an application for a judge-alone trial.

My point is that the defendant may do so on the basis that the trial is likely to be burdensome to the jury, but he may have other reasons which go to the safety of the verdict. Those other reasons are not reflected in the Bill or the Act as it is now. Once we accept that the defendant might be able to make an application for a judge-alone trial, we must ask what the criteria will be—and they are not confined to being burdensome. That was my only point, which I think that the Solicitor-General has understood even if the hon. Member for Wirral, West has not. I know that other members of the Committee, on the Opposition Benches, at least, have understood it.

Given that I am in favour of improving the Bill, I am perfectly prepared to accept that my new clause does not go as far as I now think that it should. Because there is merit in giving careful reflection to what I am saying, with the leave of the Committee I beg to ask leave to withdraw the new clause.

John Bercow (Buckingham, Conservative)

I should tell the Committee at this point, in response to the observation made by the right hon. and learned Member for Sleaford and North Hykeham a few moments ago—that I might at this point seek adjournment of the sitting—that I have no intention of doing so. We have only to deal with one further new clause and I should have thought that the Committee would therefore wish to persevere.