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“The jurors’ assessments of their own and others’ understanding produced a consistent, generally optimistic picture.”
In that same section, following paragraphs show that even though the jurors were interviewed five months later, without their notebooks and their notes, they were not thrown by the fact that the trial was a fraud trial. That is the fundamental point.
The Solicitor-General is wrong when he says, “We’ve tried everything else,” because we have not yet done so. In the past two years, there has been the Lord Chief Justice’s protocol of 2005, the changes brought about as a result of the Jubilee line case, the inspector’s report and the Law Officers’ recommendations, the Fraud Act 2006, and the testing of the Domestic Violence, Crime and Victims Act 2004. In addition, there is a cross-governmental review that has not yet produced its final report and recommendations. All that has meant that there have been practical changes in the way in which prosecution and defence manage their cases.
The point of new clause 5 is that if we lose the argument on the principle, we at least want some reserve positions or fall-backs. The best fall-back position would be to ensure that burdensomeness and length of trial were not sufficient of themselves; there must be an “interests of justice” case and a “safety of the verdict” case, too. That is why we would include the backstop positions set out in the new clauses.
I ask the House to support new clause 5—if you allow us to vote on it, Mr. Deputy Speaker—not because it would be good to have a Bill that included the amendment, but because if, in the end, we have to accept a Bill that takes such a nonsensical and illogical route, it is better to make that slight improvement to the conditions that must be met if there is to be a non-jury trial. I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
‘In section 43 of the Criminal Justice Act 2003 (c. 44), for subsection (5) substitute—
“(5) The condition is that by reason of the complexity or length of the trial, or both, and their likely impact on the safety of the verdict, the interests of justice require that serious consideration should be given to the question of whether the trial should be conducted without a jury.”.’.— [Simon Hughes.]
Brought up, and read the First time.
Motion made, and Question put, That the clause be read a Second time.
The House divided: Ayes 190, Noes 278.
AYES
Afriyie, Adam
Alexander, Danny
Amess, Mr. David
Arbuthnot, rh Mr. James
Atkinson, Mr. Peter
Bacon, Mr. Richard
Baldry, Tony
Barker, Gregory
Baron, Mr. John
Barrett, John
Beith, rh Mr. Alan
Bellingham, Mr. Henry
Benyon, Mr. Richard
Beresford, Sir Paul
Binley, Mr. Brian
Blunt, Mr. Crispin
Bone, Mr. Peter
Bottomley, Peter
Brake, Tom
Breed, Mr. Colin
Brokenshire, James
Brooke, Annette
Browne, Mr. Jeremy
Bruce, rh Malcolm
Burns, Mr. Simon
Burrowes, Mr. David
Burstow, Mr. Paul
Burt, Alistair
Burt, Lorely
Butterfill, Sir John
Cable, Dr. Vincent
Campbell, rh Sir Menzies
Carswell, Mr. Douglas
Clappison, Mr. James
Clark, Greg
Clarke, rh Mr. Kenneth
Clegg, Mr. Nick
Conway, Derek
Curry, rh Mr. David
Davey, Mr. Edward
Davies, Mr. Dai
Davies, David T.C. (Monmouth)
Davies, Philip
Davies, Mr. Quentin
Davis, rh David (Haltemprice and Howden)
Dorrell, rh Mr. Stephen
Dorries, Mrs. Nadine
Duddridge, James
Duncan, Alan
Dunne, Mr. Philip
Evennett, Mr. David
Fabricant, Michael
Farron, Tim
Featherstone, Lynne
Field, Mr. Mark
Foster, Mr. Don
Fraser, Mr. Christopher
Garnier, Mr. Edward
Gauke, Mr. David
Gibb, Mr. Nick
Gillan, Mrs. Cheryl
Goldsworthy, Julia
Goodman, Mr. Paul
Gray, Mr. James
Grayling, Chris
Green, Damian
Grieve, Mr. Dominic
Hague, rh Mr. William
Hammond, Mr. Philip
Hammond, Stephen
Hands, Mr. Greg
Harris, Dr. Evan
Hayes, Mr. John
Heald, Mr. Oliver
Heath, Mr. David
Heathcoat-Amory, rh Mr. David
Hemming, John
Hendry, Charles
Herbert, Nick
Hoey, Kate
Hogg, rh Mr. Douglas
Hollobone, Mr. Philip
Holmes, Paul
Horam, Mr. John
Horwood, Martin
Howarth, David
Hughes, Simon
Huhne, Chris
Hunt, Mr. Jeremy
Hunter, Mark
Jack, rh Mr. Michael
Jackson, Mr. Stewart
Jenkin, Mr. Bernard
Jones, Mr. David
Keetch, Mr. Paul
Kennedy, rh Mr. Charles
Key, Robert
Knight, rh Mr. Greg
Kramer, Susan
Lait, Mrs. Jacqui
Lamb, Norman
Lancaster, Mr. Mark
Lansley, Mr. Andrew
Laws, Mr. David
Leech, Mr. John
Leigh, Mr. Edward
Letwin, rh Mr. Oliver
Lewis, Dr. Julian
Liddell-Grainger, Mr. Ian
Lidington, Mr. David
Lilley, rh Mr. Peter
Llwyd, Mr. Elfyn
Luff, Peter
Mackay, rh Mr. Andrew
Maclean, rh David
Main, Anne
Malins, Mr. Humfrey
May, rh Mrs. Theresa
McIntosh, Miss Anne
McLoughlin, rh Mr. Patrick
Mercer, Patrick
Miller, Mrs. Maria
Milton, Anne
Mitchell, Mr. Andrew
Moore, Mr. Michael
Moss, Mr. Malcolm
Mulholland, Greg
Murrison, Dr. Andrew
Neill, Robert
Newmark, Mr. Brooks
O'Brien, Mr. Stephen
Öpik, Lembit
Ottaway, Richard
Pelling, Mr. Andrew
Penrose, John
Pickles, Mr. Eric
Prisk, Mr. Mark
Pritchard, Mark
Pugh, Dr. John
Randall, Mr. John
Redwood, rh Mr. John
Reid, Mr. Alan
Rennie, Willie
Robathan, Mr. Andrew
Robertson, Hugh
Robertson, Mr. Laurence
Rogerson, Mr. Dan
Rosindell, Andrew
Rowen, Paul
Ruffley, Mr. David
Russell, Bob
Sanders, Mr. Adrian
Scott, Mr. Lee
Selous, Andrew
Shepherd, Mr. Richard
Simpson, Mr. Keith
Smith, Sir Robert
Soames, Mr. Nicholas
Spelman, Mrs. Caroline
Spink, Bob
Steen, Mr. Anthony
Streeter, Mr. Gary
Stuart, Mr. Graham
Stunell, Andrew
Swinson, Jo
Swire, Mr. Hugo
Syms, Mr. Robert
Taylor, Mr. Ian
Taylor, Dr. Richard
Teather, Sarah
Tyrie, Mr. Andrew
Viggers, Peter
Villiers, Mrs. Theresa
Walker, Mr. Charles
Wallace, Mr. Ben
Waterson, Mr. Nigel
Watkinson, Angela
Webb, Steve
Whittingdale, Mr. John
Widdecombe, rh Miss Ann
Williams, Hywel
Williams, Mark
Williams, Stephen
Willis, Mr. Phil
Willott, Jenny
Winterton, Ann
Winterton, Sir Nicholas
Wright, Jeremy
Young, rh Sir George
Younger-Ross, Richard
Tellers for the Ayes:
Mr. Roger Williams and
Mr. Robert Goodwill
NOES
Abbott, Ms Diane
Ainger, Nick
Ainsworth, rh Mr. Bob
Alexander, rh Mr. Douglas
Allen, Mr. Graham
Anderson, Mr. David
Anderson, Janet
Armstrong, rh Hilary
Atkins, Charlotte
Austin, Mr. Ian
Austin, John
Bailey, Mr. Adrian
Baird, Vera
Banks, Gordon
Barlow, Ms Celia
Barron, rh Mr. Kevin
Battle, rh John
Bayley, Hugh
Bell, Sir Stuart
Benn, rh Hilary
Benton, Mr. Joe
Berry, Roger
Betts, Mr. Clive
Blackman-Woods, Dr. Roberta
Blears, rh Hazel
Blizzard, Mr. Bob
Borrow, Mr. David S.
Bradshaw, Mr. Ben
Brennan, Kevin
Brown, Lyn
Brown, rh Mr. Nicholas
Brown, Mr. Russell
Browne, rh Des
Bryant, Chris
Buck, Ms Karen
Burden, Richard
Butler, Ms Dawn
Byers, rh Mr. Stephen
Byrne, Mr. Liam
Caborn, rh Mr. Richard
Cairns, David
Campbell, Mr. Alan
Campbell, Mr. Ronnie
Caton, Mr. Martin
Cawsey, Mr. Ian
Challen, Colin
Chapman, Ben
Clark, Ms Katy
Clark, Paul
Clarke, rh Mr. Charles
Clarke, rh Mr. Tom
Clelland, Mr. David
Coaker, Mr. Vernon
Coffey, Ann
Cohen, Harry
Connarty, Michael
Cooper, Rosie
Cooper, Yvette
Cousins, Jim
Creagh, Mary
Cruddas, Jon
Cryer, Mrs. Ann
Cummings, John
Cunningham, Mr. Jim
Cunningham, Tony
David, Mr. Wayne
Davidson, Mr. Ian
Dean, Mrs. Janet
Devine, Mr. Jim
Dhanda, Mr. Parmjit
Dismore, Mr. Andrew
Dobbin, Jim
Dobson, rh Frank
Donohoe, Mr. Brian H.
Doran, Mr. Frank
Dowd, Jim
Drew, Mr. David
Eagle, Angela
Eagle, Maria
Efford, Clive
Ellman, Mrs. Louise
Engel, Natascha
Ennis, Jeff
Farrelly, Paul
Fisher, Mark
Fitzpatrick, Jim
Flello, Mr. Robert
Flint, Caroline
Follett, Barbara
Foster, Mr. Michael (Worcester)
Foster, Michael Jabez (Hastings and Rye)
Francis, Dr. Hywel
Gapes, Mike
Gardiner, Barry
George, rh Mr. Bruce
Gerrard, Mr. Neil
Gibson, Dr. Ian
Gilroy, Linda
Goggins, Paul
Goodman, Helen
Griffith, Nia
Grogan, Mr. John
Gwynne, Andrew
Hall, Mr. Mike
Hall, Patrick
Hamilton, Mr. David
Hanson, Mr. David
Harman, rh Ms Harriet
Harris, Mr. Tom
Havard, Mr. Dai
Healey, John
Henderson, Mr. Doug
Hepburn, Mr. Stephen
Heppell, Mr. John
Hesford, Stephen
Heyes, David
Hill, rh Keith
Hodgson, Mrs. Sharon
Hood, Mr. Jimmy
Hoon, rh Mr. Geoffrey
Hope, Phil
Howarth, rh Mr. George
Howells, Dr. Kim
Hoyle, Mr. Lindsay
Hughes, rh Beverley
Hutton, rh Mr. John
Iddon, Dr. Brian
Illsley, Mr. Eric
Ingram, rh Mr. Adam
Jackson, Glenda
James, Mrs. Siân C.
Jenkins, Mr. Brian
Johnson, rh Alan
Johnson, Ms Diana R.
Jones, Helen
Jones, Mr. Kevan
Jones, Mr. Martyn
Joyce, Mr. Eric
Kaufman, rh Sir Gerald
Keeble, Ms Sally
Keeley, Barbara
Keen, Alan
Keen, Ann
Kelly, rh Ruth
Kemp, Mr. Fraser
Kennedy, rh Jane
Khan, Mr. Sadiq
Kidney, Mr. David
Kilfoyle, Mr. Peter
Knight, Jim
Kumar, Dr. Ashok
Ladyman, Dr. Stephen
Lammy, Mr. David
Laxton, Mr. Bob
Lazarowicz, Mark
Lepper, David
Levitt, Tom
Lewis, Mr. Ivan
Linton, Martin
Lloyd, Tony
Mackinlay, Andrew
MacShane, rh Mr. Denis
Mactaggart, Fiona
Mallaber, Judy
Mann, John
Marris, Rob
Martlew, Mr. Eric
McAvoy, rh Mr. Thomas
McCabe, Steve
McCarthy, Kerry
McCarthy-Fry, Sarah
McCartney, rh Mr. Ian
McDonagh, Siobhain
McFadden, Mr. Pat
McFall, rh John
McGovern, Mr. Jim
McIsaac, Shona
McKechin, Ann
McKenna, Rosemary
McNulty, Mr. Tony
Meacher, rh Mr. Michael
Meale, Mr. Alan
Merron, Gillian
Michael, rh Alun
Milburn, rh Mr. Alan
Miliband, Edward
Miller, Andrew
Moffat, Anne
Moffatt, Laura
Mole, Chris
Moon, Mrs. Madeleine
Moran, Margaret
Morgan, Julie
Mountford, Kali
Mullin, Mr. Chris
Munn, Meg
Murphy, Mr. Jim
Murphy, rh Mr. Paul
Naysmith, Dr. Doug
Norris, Dan
O'Brien, Mr. Mike
O'Hara, Mr. Edward
Olner, Mr. Bill
Osborne, Sandra
Owen, Albert
Palmer, Dr. Nick
Pearson, Ian
Plaskitt, Mr. James
Pope, Mr. Greg
Prentice, Bridget
Prentice, Mr. Gordon
Primarolo, rh Dawn
Prosser, Gwyn
Purchase, Mr. Ken
Purnell, James
Rammell, Bill
Raynsford, rh Mr. Nick
Reed, Mr. Andy
Reed, Mr. Jamie
Reid, rh John
Riordan, Mrs. Linda
Robertson, John
Rooney, Mr. Terry
Roy, Mr. Frank
Ruane, Chris
Ruddock, Joan
Russell, Christine
Ryan, Joan
Seabeck, Alison
Shaw, Jonathan
Sheerman, Mr. Barry
Sheridan, Jim
Simpson, Alan
Singh, Mr. Marsha
Skinner, Mr. Dennis
Slaughter, Mr. Andrew
Smith, rh Mr. Andrew
Smith, Ms Angela C. (Sheffield, Hillsborough)
Smith, Angela E. (Basildon)
Smith, Geraldine
Smith, rh Jacqui
Smith, John
Snelgrove, Anne
Soulsby, Sir Peter
Southworth, Helen
Spellar, rh Mr. John
Starkey, Dr. Phyllis
Stoate, Dr. Howard
Strang, rh Dr. Gavin
Stringer, Graham
Stuart, Ms Gisela
Sutcliffe, Mr. Gerry
Tami, Mark
Taylor, Ms Dari
Taylor, David
Thomas, Mr. Gareth
Timms, rh Mr. Stephen
Todd, Mr. Mark
Touhig, rh Mr. Don
Trickett, Jon
Truswell, Mr. Paul
Turner, Dr. Desmond
Turner, Mr. Neil
Twigg, Derek
Waltho, Lynda
Ward, Claire
Watts, Mr. Dave
Wicks, Malcolm
Williams, Mrs. Betty
Wills, Mr. Michael
Winnick, Mr. David
Winterton, rh Ms Rosie
Woodward, Mr. Shaun
Woolas, Mr. Phil
Wright, David
Wright, Mr. Iain
Wright, Dr. Tony
Wyatt, Derek
Tellers for the Noes:
Liz Blackman and
Huw Irranca-Davies
Question accordingly negatived.
‘(1) Section 43 of the Criminal Justice Act 2003 (c. 44) is amended as follows.
(2) In subsection (2) leave out “prosecution” and insert “defendant, or any of the defendants in cases where there is more than one defendant”.
(3) In subsection (7) leave out “prosecution” and insert “defendant, or any of the defendants in cases where there is more than one defendant”.’.— [Simon Hughes.]
Brought up, and read the First time.
Simon Hughes: I beg to move, That the clause be read a Second time.
Mr. Deputy Speaker: With this it will be convenient to discuss the following:
New clause 10— Duty to hear oral representations—
‘(1) Section 43 of the Criminal Justice Act 2003 (c. 44) is amended as follows.
(2) After subsection (3) insert—
“(3A) In determining an application under subsection (2) the judge will grant—
(c) any of the defendants in cases where there is more than one defendant,
the opportunity to make oral representations, and will take such representations into account in deciding whether to make an order that the trial is to be conducted without a jury.”.
(3) In subsection (4), at end insert “and no approval may be given in circumstances where the defendant, or any of the defendants in cases where there is more than one defendant, have not been granted an opportunity to make oral representations under subsection (3A) and for those representations to have been taken into account.”.’.
‘(1) Section 43 of the Criminal Justice Act 2003 (c. 44) is amended as follows.
(2) In subsection (3) after second “satisfied”, insert “, or otherwise believes that such an order would, if made, significantly disadvantage or otherwise prejudice a defendant, or any of the defendants in cases where there is more than one defendant,”.
(3) In subsection (7) of the Criminal Justice Act 2003, leave out “prosecution” and insert “, the defendant, or any of the defendants in cases where there is more than one defendant.”.’.
New clause 13— Application by defendants for certain fraud cases to be conducted without a jury (No.2)—
‘In section 43(2) of the Criminal Justice Act 2003 (c. 44), after “prosecution”, insert “, the defendant, or any of the defendants in cases where there is more than one defendant,”’.
New clause 14— Rights of the defendant—
‘(1) Section 43 of the Criminal Justice Act 2003 is amended as follows.
(a) for “that the condition” substitute “any of the conditions”, and
(b) after second “satisfied” insert “or otherwise believes that an order if made would significantly disadvantage or otherwise prejudice the defendant (or any of the defendants in cases where there is more than one defendant).”.
(3) In subsection (4) after “him” insert “who, before he gives such an approval, shall consider whether the prosecution (or the defendant, or any of the defendants in cases where there is more than one defendant) should be given the opportunity to make oral or written representations to him, and if he so determines an opportunity to make such representations shall have been given.”.
(4) In subsection (5) at the beginning insert “in the case of an application by either the prosecution or a defendant”.
(5) At the end of that subsection insert—
“(5A) In the case of an application by the defendant the condition is that the complexity of the trial or length of the trial or the nature of the evidence that is likely to be called is such that the interests of natural justice require that serious consideration should be given to the question of whether a trial should be conducted without a jury.”
(6) In subsection (7), at the end insert “the defendant (or any of the defendants in cases where there is more than one defendant).”.’.
Simon Hughes: This group contains a range of proposals. Again, I preface my remarks by saying that they do not qualify our views about the Bill, which we do not want. After the preceding debate we are even more clear that the case for the Bill—that fraud trials need judges without juries—appears weaker, because the argument seems to be that long trials are a problem. That problem should be dealt with by procedural means, and many remedial steps are in train.
However, if we are to improve the Bill, there are three proposals that my colleagues and I put before the House, and further proposals in the group from other colleagues. Our first proposal is that if an application for a trial without a jury is allowed to be made to a judge and approved by the Lord Chief Justice, it should be possible for it to be made by the prosecution or by the defence, and by any one of the defendants, if there are more than one.
During the previous debate, the Solicitor-General commented that in Committee the Opposition had proposed that the exemption from jury trial for serious cases should be extended. We were arguing, as he knows, not that we want that to happen, but that if some serious fraud cases in a ring-fenced group of cases are to be heard by a judge alone, there is no logic in justice why both parties to the case—the prosecution and the defence—should not be able to apply for that. It cannot be a fair system if only one side can apply.
It could be argued that it would usually be to the advantage of the prosecution to go before a judge alone, because judges are—I do not mean this pejoratively—hardened in dealing with such cases, whereas juries are not. Members of a jury are unlikely ever to have done a long or difficult case before, and unlikely ever to have to do a jury case again, because they are usually exempt from jury service after serving on a long or difficult case. Jurors therefore come fresh to the case and give it their particular attention, never having served on a jury before.
Many defendants, those representing them and their witnesses might think the system was unfair if it allowed only the prosecution to put the case for going before a judge alone. They might ask why they should not have the same right. There might be cases where a defendant preferred the case to be tried by a judge rather than a jury. Apart from the situation that I mentioned earlier, I can think of only two examples, which are simplistic, in which there had been a great deal of press coverage before an arrest or a charge.
If the defendant or one of the defendants was a woman and the judge was male, the woman might prefer to put her case to a mixed group of people, including women. Similarly, a black or minority ethnic defendant might prefer a jury to a white judge, male or female. However, there are some cases, usually those that have attracted publicity, where defendants might prefer to go before a judge. Such cases are fairly rare. I have not heard defendants make the case to me, or to us, by representation, for a judge trial rather than a jury trial.
Mr. Hogg: May I add the other category, to which I alluded: cases which are likely to be a substantial cost to the defendant, through lack of employment or through direct cost?
Simon Hughes: Indeed. That is more true now that the rules on legal representation have changed. There has been criticism—justified, in some cases—that people who appear to be well off have been getting legal assistance from the public purse for a long case, and there may be more of those cases.
To summarise, people might normally prefer a jury to a judge, because they think a jury might represent them better, for gender, ethnic or other reasons, but in a case that has attracted great publicity or, as the right hon. and learned Gentleman says, in one involving substantial cost, they might prefer to appear before a judge alone. New clause 9 argues for equality of opportunity to make the case.
New clause 10 makes the supplementary point that, if a judge is to consider an application from the prosecution, there should be an opportunity for oral representations—a public presentation of the reasons for not wishing the case to go to a judge-only trial—or, if one defendant made such an application, the other defendants should have the right to present orally to the court the reasons for not wishing the case to go before a non-jury trial.
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