I shall try to give a short but careful explanation, because I know that the hon. Gentleman has raised the issue before, and it is important to give the correct answer.
Subsection (5) enables the non-jury court to convict a person of an alternative offence, where the defendant is found not guilty of the offence for which he is being tried. The principle behind that provision is taken from normal criminal procedure. A jury can find a defendant not guilty of an offence with which he has been charged, but guilty of an alternative lesser offence even if that offence has not been put on the indictment. Alternative verdicts are available only where the lesser offence consists only of legal elements contained in that originally charged. That means that where a defendant is charged only with murder, a jury can acquit of murder but instead convict for manslaughter, because murder is similar to manslaughter. It is the same with robbery and theft. There might be a trial for robbery that is not found, but if theft is found the conviction is made.
It is not possible to move from murder to theft or from murder to robbery. The offences have to be of like nature for a conviction on the lesser offence to be found. The lesser offence arises from the same facts, and therefore the circumstances that have led to the decision for non-jury trial in that case will apply. It clearly makes sense for the tribunal that has already heard all the witnesses and come to a conclusion on the facts to enter the appropriate verdict rather than to start from scratch. It is in the interests of justice that we do not start all over again. That is important—the criminal justice system does not allow us to start all over again on the same charges. Under the changes to the double jeopardy rule—this takes us back again to the Criminal Justice Act 2003—it is possible to retry for the same offence only where the matters are very serious and there is new and compelling evidence.
If we do not give the judge here the same powers that a jury would have to convict on a lesser offence, somebody who is not convicted of the most serious offence but who has none the less committed an offence, could walk scot free from the court. That would indeed be something that any member of the Committee would regret.