New Clause 4
Fraud (Trials Without a Jury) Bill
7:15 pm
Douglas Hogg (Sleaford and 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.