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Mr. Paul Stinchcombe (Wellingborough): The hon. Gentleman seemed to suggest that the sweep-up provision in subsection (8) might give the judge the same breadth of discretion as amendment No. 202. I wonder whether he concedes too much when he so states. Subsection (8) requires the judge to consider it
However, subsections (6) and (7) both use the word desirable.
9.30 amSimon Hughes: That is a very good point, and is why, when we thought about the clause, and talked to others about it, it struck them and me that a general discretion with the judge would be better. The hon. Gentleman is right to point out that there are slightly different criteria. The last criterion, which introduces a necessity, is unusual. The judge would have to be persuaded, on a balance of probabilities, that the decision would be in the public interest. The Crown Prosecution Service does that every day, when it makes decisions about prosecution—it takes a more than 50 per cent. test. The judge would have to take such a test. As it happens, yesterday I visited the judges in Snaresbrook Crown court. Mr. Humfrey Malins (Woking): Did you have a good lunch? Simon Hughes: Not particularly. I had lamb pies, an apple, a cup of coffee and some leek soup. Perhaps the lunch improves later in the week. We talked about the matters under discussion. There is nervousness among judges that they might end up trying cases on their own. They are not strident on that issue, although they also anticipate the problem that we shall discuss in the clause stand part debate. I ask hon. Members to consider the protection proposed by amendment No. 203, which would add to the end of subsection (3):
Thus, if the Committee rejected the proposal that the decision that trials be conducted without a jury be discretionary, and it held on to the obligatory consequence, the judge, in making an order, would have one more consideration to take into account: that the defendant's right to a fair trial not be compromised. One might say, ''Hang on a minute. Which judge would say, 'I'm not going to try a case fairly'?'' One would hope that they would all feel able to try cases fairly. However, there is a slightly wider consideration. The question is not simply whether judges think that they can decide the facts reasonably—I am sure that they form views about the facts all the time, even Column Number: 271 though they do not make a judgment on innocence and guilt. However, in terms of a fair trial, the issue is as much to do with justice being done as justice being seen to be done.There may be cases in which the judge believes that it is in the defendant's interest for a jury to give the result. The cases that come to mind most are the notorious sex offences, child killings and the like. I can understand why a defendant would want a judge-only trial in some of those cases. A judge-only trial would probably make the trial much shorter. There would not be the embarrassment caused by the case's being set out before 12 members of the public, and the trial would seem less of a public trial. There therefore might be a temptation for the defendant to say, ''Yes, I want this. This is the way I can get through the system most speedily''. I can foresee pressures on a defendant to do so in some cases. However, if the case is nationally well known—we can all think of recent examples—it may be better for a jury to take the decision, because a jury's authority is greater than that of a judge. I shall make that argument later. The verdict is that of the public, not a professional lawyer. Lady Hermon (North Down): In support of the hon. Gentleman's point, I draw his attention to Diplock courts, which have been in place in Northern Ireland for many years. Judges sitting without a jury there have had to tolerate years of criticism. How can one guarantee that a judge sitting alone here will not suffer that same criticism? Simon Hughes: I am very conscious of the history of the Diplock courts. I remember all the anguished debates that we had in the House in the early 1980s when the now Lord Carlile of Berriew and I, along with other colleagues, struggled over whether we could support the emergency legislation. The system placed huge pressure on the judges, to whom I pay tribute, for I have been in the front line in the most terrifying circumstances. It is an unreasonable pressure to put— The Parliamentary Under-Secretary of State for the Home Department (Hilary Benn): I am listening with great care to the point that the hon. Gentleman makes. Does he accept that the consideration that the hon. Lady has raised does not apply, since the trigger for the clause is that the defendant himself or herself has requested a judge-only trial? The circumstances are very different in Diplock courts. Simon Hughes: I understand that, but I still side with the hon. Member for North Down (Lady Hermon) for this reason. For example, in the case of a stabbing between members of Roman Catholic and Protestant gangs in Liverpool, a defendant might apply for a judge-alone trial. The judge would be put in a position in which he had no discretion but to hear a trial that concerned the two traditions in Liverpool. The Bill's remits extends to Glasgow also. That might put the judge in a very difficult position. At the end of that hearing, should it be a marginal case, he might become reviled and the subject of abuse from the other Column Number: 272 community, even though it was the defendant who applied for a judge-only trial.The provisions could not, by definition, preclude an application for judge-only trial being made for a judge's very first case on his first day. A judge who has never sat before could be trying a Crown court case. There is nothing in the Bill to allow that judge to say, ''No, I am not comfortable with doing that''. It would be a brave judge who would happily make a decision on the facts alone in his first case. Therefore, there are all sorts of practical reasons to prevent that happening. On the detail, I do not have strong theological views. I have practical views like those of the hon. Member for Beaconsfield, but I do not seek to repeat the arguments that he made. However, I shall argue in a moment that the defendant's right to request a judge-only trial is an unwise road down which to go. Amendment No. 285 raises an interesting question, and I understand why it is proposed. However, it may not be practical, for the reasons at which I hinted earlier. Take, for example, an application in Nottingham, or elsewhere, by a defendant in a paedophile case. I am aware that such cases have been the subject of much anguish in Nottingham because of the proposal to house paedophiles in Nottingham jail. As I recollect, the community has been antagonised by that proposal. A defendant would not want to elaborate in any way that might become public the reasons why he was applying for judge-only trial. We might all speculate about that, but if he was poorly represented or not represented—he probably would be represented—he might make the application in a formulation that was not helpful to him. The defendant might sound weak. He would have to be careful that, even though he was pleading not guilty, it did not appear that he was asking for a judge-alone trial because he did not want someone to assume that he was guilty. There are all sorts of difficulties. I understand exactly and, logically, I would be on his side. I would say that of course he should give his reasons and that everything should be above board. The application should be made in public, and the judge should consider it and give his decision in public. Everything should be on the record, not least because if the decision goes to appeal, it can properly be adjudicated by the higher court. My worry is that the reason why some people might decide to ask for a judge-alone trial might be absolutely the reason why they did not want to say what the reason was. It would therefore be impractical. Mr. Graham Allen (Nottingham, North): That is why I wanted first to hear the Minister's view. However, the hon. Gentleman has raised the question, and the example that he gives is of great concern to me—but probably even more so to my hon. Friend the Member for Nottingham, East (Mr. Heppell), in whose constituency lies Nottingham prison, although he is sadly not at liberty to contribute to the debate. I should have thought that it was exactly the sort of case for which people might want to hear a public defence of why a trial should be held before a judge alone. Why should individuals be given that privilege? The reasons would Column Number: 273 need to be explained, particularly in the highly sensitive cases mentioned.Simon Hughes: I meant no discourtesy to the hon. Member for Nottingham, East by mentioning a case that I remember from my past visits to Nottingham, but it was a big issue in many parts of the city and was the sort of case that would be carefully followed by the local press. I shall give one last example. The most famous case relating to a constituent of mine was that of Derek Bentley, who was born and brought up in Southwark. He eventually moved to Croydon, where the events occurred that led to his trial, the famous conviction, his death and the intervention of Lord Goddard, the Lord Chief Justice. Derek Bentley was a man of limited intelligence; he was educationally subnormal. One might expect such defendants as Bentley, and others who are vulnerable because of mental illness or educational disability, to be advised to go for a jury trial, because the jury would have a greater breadth of experience and more sympathy. However, that does not necessarily follow; they might be rather dogged in their determination to have a judge-alone trial for reasons that are rather difficult to explain. It is difficult to see how, with the Bill as currently drafted and particularly without amendment No. 203, judges would be able to refuse applications by single defendants, even though they had some nervousness about the matter, unless other protections were provided. I therefore seek to persuade the Committee that we must strike a delicate balance. That is why I tabled my amendments, and why I am sympathetic to the amendments proposed by the hon. Member for Nottingham, North and those tabled by Conservative Members. We need to proceed carefully, to ensure that we get the balance right if both Houses of Parliament decide to keep that provision in the Bill.
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| ©Parliamentary copyright 2003 | Prepared 14 January 2003 |
