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Mr. Hogg : It is a pleasure to follow the hon. and learned Member for Medway (Mr. Marshall-Andrews). His point about public interest immunity is wholly conclusive. He has marshalled the arguments with great lucidity, so I shall be brief.
There is a problem with jury nobbling in clause 38 and we have not tackled it sensibly. I should like to make three brief points. First, it is said that there is a right of appeal and there is, but it is subject to leave and the Bill is silent about the grounds on which that leave will be granted or withheld. We must deal with that problem.
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Secondly, and it is not quite the same issue that applies to public interest immunity, it is important that nothing on the application for a non-jury trial should be allowed to taint the subsequent trial. In the great majority of cases, that will mean that the application for the non-jury trial should be made by a judge different from the one who subsequently hears the substantive trial.
Thirdly, I agree with the hon. Member for Sunderland, South (Mr. Mullin) that before a non-jury trial is granted on the ground of tampering, it is essential that clear evidence is provided that either tampering has taken place or is likely to take place. A bald assertion to that effect is certainly not enough and will result in many non-jury trials being approved on the ground of likelihood alone.
I shall now move on quickly to clauses 36 and 37. I find myself in substantial agreement—I am glad to say, on this occasion—with my right hon. Friend the Member for West Dorset (Mr. Letwin). During the past six years since I was unfortunately driven from Government, I have taken part in several fraud cases, some of them long, which ultimately revolved around the question of whether the defendant was dishonest. Juries are singularly well place to determine that question. In common with the hon. Member for Sunderland, South, I do not buy the argument that jurors cannot address that question: they can and they do.
I make my next point with a degree of caution and diffidence because I hope to be treated with courtesy in courts as well as in the House, but some judges are unduly predisposed in favour of the Crown. That is not surprising. Judges spend many years listening to spurious defence case after spurious defence case, which can make them jolly impatient with defendants. I regard the jury system as an important safeguard to protect the innocent citizen in a way that I do not believe is true of all judges. I regret to say that, but I believe it to be the case.
My next point will be brief, because my right hon. Friend the Member for West Dorset expressed it so clearly. It is the slippery slope argument. Once it is accepted as a proposition that length and complexity provide good reasons for not having a jury trial, why extend it to a second condition and say that a jury is unnecessary because of the commercial or property nature of the case? Once complexity and length are conceded as appropriate grounds, we are heading towards getting rid of all jury trials.
Other right hon. and hon. Members want to speak, so I shall quickly make two final points. First, it is not impossible to find jurors to deal with long cases. The hon. and learned Member for Medway has greater experience than me in that respect. Although it is sometimes difficult, jurors are always to be found and empanelled.
Finally, as the hon. and learned Member for Medway said and as I mentioned at the outset, the public interest immunity point is absolutely conclusive. It is the nature of fraud cases that PII applications will be made, at least at the start. Once a judge starts hearing PII applications in the absence, as always, of the defence, how can we conceivably satisfy the requirements of article 6 of the convention? That point goes to the heart of the matter and demonstrates why the proposal is so ill thought out.
Vera Baird: Amendment No. 1 would leave out clause 36, which couches as a "right" the option to opt out of jury trial. That alleged right should be considered in context. It will be given to a defendant, by a Bill that has repeatedly been described as one that was intended to rebalance rights towards victims and witnesses. Nobody has ever asked for that right. No client has ever said to me, "When you get into Parliament, can you legislate to get rid of these bigoted jurors and get me trial by judge, please?" Nor can we ignore the Government's recent attitude to mode of trial, when the very idea that the defendant should decide whether he should have trial by jury was called a bizarre idea, often in this Chamber itself. It is not that I doubt the current Home Secretary, but in two years the argument has been stood totally on its head, and I fear the level of future acrobatic prowess that may be required.
Will the Government be comfortable for long with a right for a defendant alone to opt for or against a jury trial, to be exercised arbitrarily with no recognition of the rights or wishes of the victim? The Home Secretary himself mentioned that point, but what about a black person in a racially aggravated case, faced with a white defendant who exercises his option to be tried by a white judge and not by anyone from a black community? What about a female rape complainant who comes to court to find that, in a highly gendered situation, the male defendant has the right to opt to exclude every other female from the case and for trial by a male judge? The perception of those two problems is dangerous enough, before one even considers the outcome. It is hard enough now to get rape complainants to come to court, and the very judges who will be given the
responsibility are drawn from a group of men who have made the most appalling comments about rape complainants over the years.The new right will inevitably be abused by defendants—mostly by criminals, but probably by all defendants—in localities. For example, in Redcar particular judges are known to be particularly liberal, and others are known to be particularly tough. If anyone asked me what I thought about the right to trial by judge alone, I would ask, "Which judge?" What will happen will be forum shopping of the worst imaginable sort. Local witnesses will know that a defendant has opted at the last minute for judge X because he is softer than the jury, or has opted for a jury because judge Y, who is hard, has been allocated to the case. That will rightly scandalise victims. The Bill includes provision that the defendant must exercise the option at an early stage, but that is unenforceable. If a defendant has the right to opt for or against jury trial, that cannot be taken away by rules of procedure. It will remain an option until the last day, and will inevitably be exercised on the last day when the identity of the judge becomes known.
What is the new right? It is a right for defendants in a Bill that is supposed to enhance the rights of victims. It is a right that no one has ever asked for. It is anti-victim, as I have described, and it will bring the courts into disrepute. It has no point and no purpose, because no one claims that juries do not work or are not valuable. Some 80 per cent. of the population supports them, so what is going on? It is the beginning of the end of trial by jury.
A year from now, those who have opted for trial by judge alone will have been tried more quickly, and thus more cheaply, than those who have been tried by a jury. One has to proceed in court at the rate of the slowest juror, and one cannot even ascertain what that is, because one does not speak to them and they cannot ask their own questions to clarify the points. The judge can say, "Yes, Mrs. Baird, I've got that, so you can move on." He can also ask about issues that are troubling him.
In a year's time, someone will say, "Hang on a moment, this burglary was tried by a judge alone in a week, but this almost identical burglary took two weeks to be tried by jury and cost twice as much." Why should somebody have legal aid for two weeks when it could be done in one? By then, cases will have had elections made at the last minute between judge and jury—forum shopping—to the scandalisation of victims, and the Government will say that that will not do. The Government will say that by analogy with the argument on mode of trial, it is bizarre for defendants to be able to make such decisions. The Government will say that they must take the decision about mode of trial away from the defendant and give it to the judge, who will exercise his discretion. However, the judge will be under pressure from disposal rates and financial factors, and there will be fewer and fewer jury trials. By that stage, the decision will be at the discretion of the judge, and therefore no one will any longer have the right to opt for jury trial—that is the important point. That is the destination towards which, inexorably, the Bill will take us—in clause 38, to a lesser extent; in clause 37; and,
despite its apparent benevolence at first sight, in clause 36. If the clauses remain in the Bill, by the end of the decade we will be lucky to have a jury in the Eurovision song contest.
Mr. Gummer: I have listened carefully to the debate, but I failed to hear the proof that juries were impossible to find, and that would have made a great deal of difference to the argument. We heard proof that it was difficult to get all cases to court, but that has nothing to do with an inability to find juries. We heard proof that some juries were tampered with, but that has nothing to do with the difficulty of finding juries in the first place. All the evidence that we have had has come from those who have explained that although it is not always easy to find juries, there is no example of a case that would have proceeded had there been a jury but was unable to do so because there was not.
The Home Secretary gave his case away by developing an argument that although juries could be found in all cases, the juries were not as representative as he would like. However, I know of no jury that is utterly representative, because that is impossible. What juries need to be is as representative as possible. Evidence has been given in the debate to show that juries, in the sort of cases that we are discussing, are—if anything—more representative than juries in general. So the Home Secretary has failed to present the very case on which he relied to bring the House to agree with him.
Instead, the Home Secretary has presented the argument that the cases involved are a narrow group—fewer than 100 a year—and that he has no intention of expanding that number. If the Home Secretary had no previous form, many of us might be willing to believe him, because he is an honourable man. However, in recent years—almost, in recent months—the argument has been that there should be no limitation on the number of cases in which the defendant should be denied a jury trial, except those that were very serious, which should be allowed a jury trial. So those that were not so serious would be refused a jury trial and those that were very serious would receive a jury trial—in defence of justice. The House denied that argument, but now—a few months later—the opposite argument is put before us. It is argued that any case that does not really matter—which is short, simple and uncontroversial—should have a jury trial, but any case in the group that previously would have been the only ones to get a jury trial will now be refused one.
Now the argument is precisely opposite to the one that we started with, and hon. Members are supposed to suggest to our constituents that the House will go along with this proposal because we were sure that it would never be extended and that we would never find any other group. However, we know perfectly well that, if we were to agree to the new clause, all those cases that were thought so important as to be removed from the jury's ambit would come along pretty soon.
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