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Standing Committee B
Tuesday 14 January 2003
(Morning)
[Mr. James Cran in the Chair]
Clause 36
Application by defendant for trial to be conducted without jury
9.10 am
Amendment proposed: No. 285, in
The Chairman: With this it will be convenient to discuss the following amendments:
No. 202, in
clause 36, page 23, line 31, leave out 'must' and insert 'may'.
No. 203, in
No. 232, in
clause 36, page 23, line 32, leave out '(6), (7) or (8)'.
No. 252, in
No. 233, in
clause 36, page 23, line 36, leave out subsection (6).
No. 251, in
No. 250, in
clause 36, page 23, line 37, leave out 'or has held'.
No. 234, in
clause 36, page 24, line 7, leave out subsection (7).
No. 235, in
clause 36, page 24, line 16, leave out subsection (8).
No. 236, in
clause 36, page 24, line 19, leave out subsection (9).
No. 295, in
clause 42, page 28, line 2, leave out subsection (1).
Mr. Dominic Grieve (Beaconsfield): I am sorry that the hon. Member for Nottingham, North (Mr. Allen) moved the amendment only formally, because requiring the reasons to be given for the application seems to be of some importance. However, a large number of other amendments can be considered, including some tabled by the Liberal Democrats. I note that the hon. Member for Southwark, North and Bermondsey (Simon Hughes) has only just arrived, so I shall try to hold the fort until other members of the Committee feel able to participate.
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A large number of Conservative amendments have been tabled to clause 36, which may be one of the most important in the Bill. First, we must ask whether a defendant should be able to apply for his trial to be conducted without a jury. The Committee will have to give careful consideration to that, especially as the clause provides for certain exceptions. For instance, someone may make such an application but find that he is denied the right. That is a matter of concern—an issue of principle is involved—and I hope that the Minister will respond.
If the Government take the view that trial by judge alone is so satisfactory that individuals should be able to seek it as an alternative to jury trial, why in the same breath do they seek to deny it to certain categories of individual? As I read the clause, they seem to think that the public would be unhappy with such a move, and that public opinion would be that justice was not being done if the trial took place by judge alone. That is one of the key issues that we have to consider.
The Minister will be aware that the official Opposition have grave reservations about the provisions relating to trial by jury. That said, however, we should consider each provision in turn because I am mindful of the fact that they may each have different merits and because each raises different problems. The principle that someone should be able to choose trial by judge alone is perhaps the most innocuous. After all, the jury system exists principally to provide a defence and protection to the person who is to be tried.
If an individual has a preference for trial by judge alone, it may be a circumstance that Parliament should be willing to permit. The problem is that, when one starts looking at the details, it seems that the Government have an uneasy sense that in some circumstances it could cause problems. They have answered their own question: there are compelling grounds for continuing to have jury trial for all indictable offences and the procedure of mixing and matching and allowing choice is undesirable. We need to examine that issue.
Amendment No. 232 is preliminary to amendments Nos. 233 and 234, which are designed to enable the Committee to consider subsections (6) and (7). Should we, for instance, deny somebody jury trial under subsection (6) because he has held an office or employment concerned with civil or criminal justice? Can the Minister explain the rationale for that approach? It might be that people would be anxious that there would be too pally a relationship between the individual and the person trying him. I can think of one instance in which a disgraced Crown court judge appeared in front of a stipendiary magistrate when the time came for his disgrace to be completed. Nobody said at that time that there was anything untoward about it.
Subsection (7) concerns a different issue, denying jury trial in instances in which the facts concern the administration of justice being brought into disrepute. I find that concept esoteric. The closest real life example that I can think of is that of an individual who is being tried for bribing a judge. It is difficult to
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imagine any other circumstance in which it would apply. The anxiety that I experience in considering the provision is that the phraseology, although doubtless designed to address a particular instance, could be applied far more widely than is intended. For instance, do the Government mean by ''the administration of justice'' that the case of somebody who had been charged with attempting to pervert the course of justice—probably not something that concerned his relationship with the judge, although it might have involved the intimidation of witnesses—would constitute a circumstance in which trial by jury had to take place?
We could even experience the state of affairs in which somebody was denied trial by judge alone for having attempted to nobble a jury, but at the same time—under a later clause—his trial, after a further attempt at jury nobbling, would end up with the judge alone. There are inconsistencies in the wording that could lead to bizarre circumstances. The Committee must, so far as it can, predict and anticipate the bizarre. Otherwise we shall end up with a very strange system.
Amendment No. 251 covers the distinction between a judge and a recorder. It appears that a person would be covered, and would be denied jury trial, only in circumstances in which he was employed in a judicial capacity. What about those who fulfil a range of judicial offices that are not described as employment? Are they supposed to be covered? The Minister might want to consider that. Perhaps I am wrong, and the phrasing of the clause does cover such a person.
Amendment No. 250 is a probing amendment, concerning the post of office holder, unless it comes within subsection (7). To whom is that supposed to apply? If the Minister could help us on that, it would initiate the debate. Similarly, amendment No. 235 seeks to leave out subsection (8). What other exceptions might make it necessary in the public interest to conduct a trial with a jury if those exceptions are not contained in subsections (6) and (7)? That is an important consideration for the Committee.
Amendment No. 236 seeks to leave out subsection (9), which states:
''In this section 'the administration of civil or criminal justice' includes the investigation and prosecution of offences and the carrying out or enforcement of an order or sentence of a court.''
Subsection (9) has been included, I assume, to cover a wide range of officers. Does it cover prison officers, for instance? Are they part of the procedure by which a ''sentence of a court'' is carried out or does it apply only to an officer of the court, such as a tipstaff? We need clarification from the Minister on the meaning of those phrases. I hope that in initiating this debate—although I am sorry not to have heard the hon. Member for Nottingham, North speak on his amendment—I have at least set the scene for discussion. It is clear that the more one studies the detail of this clause, the more complicated it becomes.
The Government started out with the fairly simple view before the Bill was published that if people
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wanted trial by judge alone without a jury there was no reason that they should not have it. It would be less costly and the Government were sure that such trials would deliver the same standard of justice as trial by jury. It has ended up in fact as an extremely complicated mishmash; seeking on one hand to give that right to a defendant but on the other denying it to him in certain circumstances.
I hope that with the Minister's help we can make a detailed examination of the clause to see first whether it needs to be improved. When we have done that, we can examine its principle in the context of the other proposals to reduce trial by jury and to introduce trial by judge alone.
Simon Hughes (Southwark, North and Bermondsey): I thought that I was putting the hon. Member for Beaconsfield somewhat on the spot earlier by making him speak slightly earlier than he expected. I anticipate, Mr. Cran, that there will be a clause stand part debate; therefore I propose to ensure my contribution on the amendments at this stage because the issue of principle is best discussed in the stand part debate that follows.
There are three amendments in my name and that of my hon. Friend the Member for Somerton and Frome (Mr. Heath); there are amendments from the hon. Member for Nottingham, North; and there are amendments from the hon. Member for Beaconsfield and his hon. Friends. Of the three amendments in my name, amendment No. 295 is a consequential amendment to clause 42, and would be made only if the earlier amendments were made. Therefore I need not take up the Committee's time with it.
The first amendment simply proposes that if Parliament decides to agree to trial being by judge alone, by application, the judge should have complete discretion, once the application has been considered, to grant or not to grant the request. Clause 36 sets out the circumstances in which that could happen. At present, under clause 36(1) a defendant may apply for an application for trial without a jury if one or more defendants are to be tried on indictment for one or more offences. The application may be blocked if one of the defendants objects.
In subsections (6), (7) and (8) there is a requirement for refusal if any of the other criteria apply—the criteria to which the remarks of the hon. Member for Beaconsfield (Mr. Grieve) were principally addressed. Those criteria include the slightly unusual circumstances set out in subsection (6), in which, first,
''the defendant, or any of the defendants, holds, or has held, an office or employment concerned with the administration of . . . justice''
and, secondly,
''the judge is satisfied that, if that defendant were convicted . . . questions would arise as to whether he had properly discharged the functions of that office . . . or was a fit person''
and, thirdly, the judge is satisfied that there are exceptional circumstances.
I understand that provision in principle; it attempts to prevent a judge-only decision where an issue arises that could lead to suspicion of a set of vested or common interests, because other people involved in
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the administration of justice would clearly regard someone on the inside as a better person to determine their guilt or innocence. The fear is, however, that it would appear to be an old boys' network decision, in which case jury trial would be a protection and would ensure that justice appeared to be done—for example, in the case of a clerk to a magistrates court who had embezzled funds when he or she was collecting fines. I understand the provision, although we could debate whether the wording is perfect.
Subsection (7) gives a third reason why the judge can insist on a jury trial. It states:
''This subsection applies if the judge is satisfied—
a) that, because of the conduct which is alleged to constitute the offence or any of the offences concerned, the issues which will arise . . . include issues relating to whether the administration of civil or criminal justice has been prejudiced or brought into disrepute, and
b) that the matters . . . give rise to exceptional circumstances''.
I would imagine that that would cover issues associated with perjury and interfering with the course of justice, and I completely understand that cases in which such issues arise should not be judge-only trials. It is important that lay people should make decisions about such cases, so that the judgment does not appear to be a legal decision.
Subsection (8) includes a sweep-up provision that will apply where
''the judge is satisfied that exceptional circumstances exist which make it necessary in the public interest for the trial to be conducted with a jury.''
That will probably cover all the circumstances that would also be covered by my amendment, No. 202. It is not easy to think of exceptional reasons why a judge would decide that the public interest requires a jury trial. The only generic circumstances that I can think of are where something does not technically qualify as an exceptional reason but where we might want to give the judge discretion. Alternatively, there might be reasons that the judge does not want to reveal publicly, relating to previous trials that he conducted, for example, if the judge has tried other people in the same series of trials. If the judge had presided over a couple of trials in a series of cases of armed robbery, with three defendants in each, and all had been jury trials, it would be wrong if a judge alone tried the third trial. The third trial might involve a single defendant, because that was how the prosecution conducted their case, and there might not be any exceptional circumstances.
The circumstances of a case may be perfectly routine, but the judge might believe that it should be tried by a jury. That could be for personal reasons. The judge might have been the subject of extreme criticism in the media—for example, in a sex offence case—for giving a guilty verdict but a lenient sentence. In such circumstances, when the next sex offence came before that judge, he might decide, for perfectly proper and professional reasons, that he wanted a jury to decide the case; otherwise, he might be regarded as a judge of a particular species, a weak or a soft judge. I am unsure whether those would qualify as exceptional circumstances, but it would be impossible for that judge to make the reasons for his decision public.
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There are plenty of cases in which one might want to allow the judge, having heard the argument and setting aside the merit of the case as a whole, to say, ''On a balance of argument, I believe that it should be a jury trial''.
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