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Mr. Grieve: This is an important point, because the Minister may have missed the extent to which judges have reputations, especially in the Crown court. A defendant's decision whether to opt for trial by jury or for trial by judge alone may be dictated by his desire for some knowledge of which judge will be trying the case. For that reason, he will not wish to make a decision until the last possible moment. Hilary Benn: It will not be the case that the defendant can wait to see who will try the case and then say, ''Oh, if it is going to be Mr. Justice So-and-so, I do not fancy that.'' Amendment No. 202 would change ''must'' to ''may''. I do not agree with that, because as the purpose of the clause is to give defendants a choice, the Government's view is that circumstances in which that choice will not be respected should be very clearly set out, and the Government have done that in subsections (6), (7) and (8). To give the court such wide discretion would not be right.
10.15 amAmendment No. 203 would ensure that when making an order that a trial be heard without a jury, a judge must be satisfied that it will not compromise the defendant's right to a fair trial. The answer to that point was made extremely cogently by the hon. Member for Woking (Mr. Malins). I do not accept, and neither do the Government, that there is a lack of equivalence in terms of the legal entitlement to fairness under article 6 of the European convention on human rights between trial by jury and trial by judge alone. He pointed out that every day many trials take place before a judge alone, and it cannot be right—nor is it the case—that those trials are less fair than those heard before a jury. In relation to article 6 of the convention, I should point out that in several jurisdictions there is no trial by jury in the form in which we operate it. The amendment is quite unnecessary. Amendments Nos. 232, 233, 234 and 235, as their originators acknowledge, probe the meaning of subsections (6), (7) and (8) and express the view that there may be exceptional cases in which the defendant's wish to have a trial by judge alone should not prevail. The principle underlining this policy is that in these cases there is a public interest in the greater public ventilation that a jury trial would provide. This principle is expressed in the variety of arrangements in other common-law jurisdictions that give defendants the option of dispensing with the jury, subject to certain exceptions. I hope that it will help the Committee if I briefly summarise the intent of subsections (6), (7) and (8), all of which are subject to an exceptional circumstances test. It is important that we bear that in mind. Subsections (6) and (7) concern cases that might be Column Number: 281 characterised as having particular significance for the administration of justice; for example, serious cases of perverting the course of justice. Subsection (6) makes it clear that we have in mind cases in which the defendant who makes an application to be tried without a jury is, or was—and that is deliberate—in employment connected with the administration of civil or criminal justice; for example, a judge, a prosecutor or a police officer.In relation to amendments Nos. 251, 250 and 236, the offences with which the defendant may be charged may or may not be related to his job, but they must raise serious doubts about his fitness for employment. Committee members have referred to subsection (8) as a catch-all provision. The circumstances envisaged in subsections (6), (7) and (8) have in common the notion that there is a balance to be struck between the private interests of the defendant to have his or her trial heard without a jury, if that is what he or she wants, and such public interest as there may be from time to time in having trial by jury. I have acknowledged that the defendant may have perfectly understandable reasons for wanting to have a judge alone trial, but there are certain sorts of cases, with the characteristics described in subsections (6), (7) and (8), that the Government adjudge are more appropriately heard with a jury. That is not because jury trial would be fairer, as I explained, but because it would bring a greater measure of external ventilation to the process. Mr. Stinchcombe: Will the Minister explain the reasons for using the word ''necessary'' rather than ''desirable'' in subsection (8)? It seems that the accused's desire for trial by judge would prevail even if the judge decided that it would be desirable in the public interest for the trial to be conducted with a jury. Hilary Benn: If my hon. Friend will bear with me, I shall come to that in a moment. Subsections (6) and (7) focus on cases whose significance lies in their relevance to the administration of justice, because of the defendant's position in the justice system or because the offence bears on the system. We strongly believe that jury trial has added value in such cases, as it avoids any possible suggestion that the criminal justice system is trying its own in a closed, private fashion. The hon. Member for Beaconsfield touched on that. Subsections (6) and (7) need not specify in detail what a judge must consider in deciding whether exceptional circumstances exist, but he or she might be expected to consider issues such as the seriousness of the offence charged and the seniority of the defendant's post in the administration of civil or criminal justice. We recognise, however, that subsections (6) and (7) may not completely exhaust the circumstances in which the public interest should override the defendant's views on the mode of trial. Subsection (8) therefore provides for the judge to have discretion to refuse a defendant's request, where he or she considers that exceptional circumstances make it necessary to do so in the public interest. My hon. Friend the Member for Wellingborough Column Number: 282 (Mr. Stinchcombe) was right to draw attention to the contrast between the test of desirability in subsections (6) and (7) and that of necessity in subsection (8). The hon. Member for Southwark, North and Bermondsey seemed to make a case for the provision, although it is not a catch-all—it tidies up the process.The application of subsection (8) will be subject to an extremely high test, and cases will be very rare. We have deliberately not sought to limit its application by specifying particular types of offence, although it might come into play in a trial involving exceptionally serious charges. The key point, however, is that its application will be subject to the higher test of necessity. Mr. Grieve: I apologise to the Minister. I have had to do some browsing, but I think that I follow him. Do his words not negate the whole thrust of the clause? Leaving aside cases involving those who administer justice, there are crimes that he feels are so serious that jury trial is essential. How is that exception to the argument that people should have a choice justified? How is the philosophical or practical distinction made? It worries me that we may have a process that gives with one hand and takes away with the other. If the Government are confident that trial by judge alone is such a correct alternative, why do they not have the courage of their convictions and stick to their guns? Why do they not remove all exceptions, apart, obviously, from that in subsection (5), which applies where a co-defendant objects? Hilary Benn: I hear the hon. Gentleman's point, but I do not agree. The application of subsection (8) is subject to an extremely high test and the Government think that sensible, whether that convinces him or not. Clause 36 is intended to give the defendant a choice, but that choice should be subject to the tests set out in subsections (6), (7) and (8). The exceptional circumstances set out in subsection (8) may make it necessary in the public interest. That is the test for a trial to be conducted with a jury, and the judge has to make that judgment, subject to appeal. I come to co-defendants— Simon Hughes: Can the Minister give us two or three examples of circumstances in which he thinks that the necessary test will be met? He must have discussed the matter with advisers and others. Why do the Government not propose to emulate the law in countries that have accepted judge only trial but limit it to all but the most serious cases? Hilary Benn: Because, having had those discussions, we have concluded that it would not be sensible to attempt to codify the law in that way. I gave the example of charges of exceptional seriousness. The other reason why we have not made such a proposal is that we feel that it is a decision for the judge to make, subject to the appeal provisions of clause 39. Vera Baird (Redcar): Will my hon. Friend give way? Hilary Benn: I want to make progress, and am conscious that I am taking up a lot of time and we have other clauses to consider. Mr. Malins: We have all day. Column Number: 283 Hilary Benn: Amendment No. 252 concerns co-defendants. The hon. Members for Beaconsfield and for Woking sought to clarify the operation of subsection (5). I hope that I can help both of them. Where the judge has ordered separate trials for defendants who were originally to be tried together, each of those defendants should have the option to elect or to refuse juryless trial regardless of the other's wishes. The hon. Member for Woking was right in his understanding that it would be a sensible way in which to proceed. That is what we intend to do. Amendments Nos. 251, 250 and 236 would limit the scope of subsection (6) to people currently holding employment that involves the exercise of judicial duties. The idea behind the subsection is that particular public interest considerations apply. It is a protection against any appearance that the system may be trying itself. The subsection would involve people in the criminal justice system such as police officers and prosecutors, so it would not be logical to limit its application to magistrates and judges. Neither, although I understand the argument put by the hon. Member for Woking, would it be sensible to limit it to those who are currently so employed; there might be a case that involved somebody who had been retired for a matter of weeks. The problem of the system appearing to try itself might be a consideration, although that would be for the judge to determine in all cases—subject to the guidance that will be issued—and it would have to give rise to exceptional circumstances that made it desirable. It would not apply to someone who worked in a small capacity many years earlier. Amendment No. 295 is consequential, and I think that I have dealt with it in my previous arguments. I apologise for the length of my reply, but a lot of issues have been raised and I hope that I have covered not only the principle of the amendments but the substance of the clause.
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