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Robert Neill: I strongly agree with my right hon. and learned Friend. Does he agree that his point about costs would be greatly reinforced if the Government as appears will be the casewere to adopt the Carter recommendations in respect of legal aid and put a cap on expenditure in high-cost fraud cases that are subject to legal aid? That would put legally aided defendants in such cases in an invidious position in relation to costs. Therefore, the Governments proposals could aggravate the problem that my right hon. and learned Friend rightly identifies.
Mr. Hogg: That is right. There is a general point that we need to keep in mind: even when a defence is funded by the state through the legal aid fund, the defendant very often suffers substantial financial loss that is irrecoverable even if they are acquitted. There is no doubt that the proposed legislation will bear on people facing long trials. I hesitate to make that point in the presence of the hon. and learned Member for Medway, as he will say that I am driving in the wedge, but we are talking about fraud cases only and we should be able to give the defendant the opportunity to say, I cannot stand financially the prospect of a very long fraud trial.
There is an issue of fairness. I hope that the Government will respond to what has been said. If they do so on this narrow point, I will not condemn them. I would greatly appreciate it if I could have the opportunity to press new clause 13 to a Division, notwithstanding that a different new clause has been moved and voted on. However, I recognise that that is within the discretion of the Chair.
The Solicitor-General: This group of new clauses is interesting. The new clauses overlap to some extent, but they deal with three broad issues, which I shall seek to address in turn: the right of a defendant in a serious fraud case to seek non-jury trial; safeguards against prejudice to defendants by reason of non-jury trial; and the right to make representations and to have them taken into account.
Opposition Members raised in Committee the question of the right of a defendant to waive jury trial and the equality of arms argument, which has a lot of power. New clauses 9, 13 andsomewhat obliquely14 make provision for defendants to apply. Under new clause 9, the defendants right would replace that of the prosecution to make an application, which would clearly be unacceptable to the Government. When the hon. Member for North Southwark and Bermondsey (Simon Hughes) explained his interpretation of that new clause, I was unsure whether he understood the implications of itbut if he did, perhaps he thought that I might not, but I do.
Let me deal with the substance of the debate. There are strong arguments for allowing defendants to request a non-jury trialto waive their right to trial by jury. The hon. Member for Beaconsfield (Mr. Grieve) asked a reasonable question: why do we give that right to the prosecution and not give it to the defence? As he knows, a general power of jury waiver was initially included in the Criminal Justice Bill 2003, although it was later removed following Opposition resistance in another place.
Mr. Grieve: At the risk of being repetitive, the two things are entirely different. The power to which the Solicitor-General refers was a general power, which did not exist for the prosecution, to enable a defendant to make an application for trial without a jury, subject to certain criteria. The prosecutor might object, for example, on the ground that public excitement about the case meant that the trial should take place with a jury. The Solicitor-General will accept that a good analogy cannot be drawn between the two situations.
The Solicitor-General: I might have saved the hon. Gentleman the trouble of intervening if I had made the point that I was about to make, which is that the Government have not changed their mind about the general principle. It sounds as though some Opposition Members have not changed their minds about it, either, but that they see that there might be cause for making a change in particular, narrow cases.
A case could certainly be made for a more limited provision that would enable defendants only in serious and complex fraud cases to waive jury trial, and we have given some real thought to that possibility. The provision that we were considering would, like that in the 2003 Bill, have given defendants a right to non-jury trial, subject to veto by a co-defendant who wanted to be tried by jury. We doubt whether it would be practical to require a defendant, as the prosecution must, to satisfy any condition in order to secure non-jury trial, along the lines proposed in new clause 14(5). Our view was that, if jury waiver is to be available, it probably ought to be available on request. For example, if, in order to make the application, the defence had to show in detail that the exposition of its defencerather than the evidence being put forward by the prosecutionwas likely to result in a long and complex trial, it might have to expose all the detail and complexity of its argument. If we were to go down this route, a better way to proceed would probably be to give the defence a right to make the application, rather than circumscribing it with various conditions.
Having said all that, although I am not disputing the many points that have been made during the debate, there is one issue that weighed quite heavily with me. When we introduced the Bill, we made it clear that we wanted it to deal with an area of law that had a long and particular history relating to Auld and Roskill, and that we did not regard it as a wedge that could be extended to a series of other non-jury trials. I accept that the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) would say that he would not seek to use against me an allegation of bad faith if I responded to the Oppositions request. However, I note that he subsequently went on to argue, despite saying that he would not do so, that there is an inevitable logic in extending the provision once we have got it. He was saying, in effect, that if we accepted the Oppositions position, we would be accepting the inevitable logic of the provisions being extended to other areas. He used that argument honestlyI am not implying any other motivebut I point out to him that there is a way of not extending that provision, which is to take the view that one will not do so. Indeed, we have given that commitment.
In discussions with the Opposition about introducing such a Bill, we gave various commitments and we have kept to them in good faith and with integrity. We and the Opposition disagree on the basic principle, and we are having that debate. It is important that, insofar as we can, we stick with the faith that we have had with the House that we will bring forward a Bill that deals only with the issue that was in the 2003 Act, that we will listen to the concerns of others and that we will have no further extension of non-jury trials.
If we were to accept the new clause, there would probablyalthough not inevitablybe a certain number of further non-jury trials because a defendant had taken that option. I therefore took the view that we would not make this proposal.
Would we ever consider the point again in the future? We have no plan to do so and we do not accept the wedge argument. It is a constitutional principle that no Parliament can bind a future Parliament, so we will have to see what happens in the future, but our position is that the Bill is what we want and this is where we stand.
Mr. Grieve: How do the Government respond to the fairness point? Leaving aside the past assurancesalthough I respect the Solicitor-Generals position on thathow will the Government answer the question of fairness and equality of arms when the measure appears to give a special power to the prosecutor to circumvent the ordinary system of trial by jury, but denies a defendant a similar right to make an application to do so? Hypothetically speaking, a defendant might feel strongly about that point or be told by his advisers that the length of the trial, the burden on the jury and other issues might prejudice a fair verdict. How will the Government answer that argument?
The Solicitor-General: As I have indicated, our view was that if we were to extend this right to the defence, we would do so without preconditions because of the impact on other parts of the trial. Therefore we would not create equality of arms. In a sense, we would be giving the defence greater rights than the prosecution. The unfairness would apply in a different way. I accept the strength of the hon. Gentlemans argument and throughout this debate I have conceded that there are strong arguments on his side. Indeed, the Government put those arguments forward some years ago and still subscribe to some of them, but in putting forward this Bill we agreed to abide by what was in the 2003 Act and that is why I have taken the view that I have on the issue.
Mr. Andrew Pelling (Croydon, Central) (Con): The Solicitor-General has made it clear on every occasion during the Bills progress that he has no intention of using the provisions to provide any precedent for future changes to trial without juries. Will he concede that if by some false measure the efficacy of the proposal was provedperhaps by an increase in successful prosecutionsthere would be a great pressure on future Ministers to give in and make concessions elsewhere in the legal system?
The Solicitor-General:
There are all sorts of pressures on poor old Ministers. That might be one of
them, but Ministers also have to take a view about where they stand on an issue. I have done that, and the Home Office has done that, and this is where the Government stand. Another Government and other Ministers might take other views, but this is the position of this Government on this Bill.
The premise underlying new clauses 11(2) and 14(2) is that an order for non-jury trial under section 43 might disadvantage or prejudice the defendant. The Government do not accept that non-jury trial is capable of having that effect. Subsection (3) of new clauses 9 and 11, and subsection (6) of new clause 14, amend section 43(7) of the 2003 Act. That requires the judge, in considering whether there are steps that he could take that would reduce the length or complexity of the trial, to disregard any step that might significantly disadvantage the prosecution. The amendments refer insteador, in the case of new clause 14, in additionto steps that would disadvantage the defendant. However, the judge is under no obligation to make an order under section 43, and he certainly need not take steps prejudicial to the defendant in order to justify refusing to order trial without a jury.
New clause 10, which is the same as the new clause moved in Committee, and subsection (3) of new clause 14 would allow representations to be made in relation to an application under section 43. As hon. Members accepted in Committee, section 45 of the 2003 Act already does what we believe to be necessary. Section 45(2) provides that an application under section 43 must be determined at a preparatory hearing, which takes place orally. Section 45(3) provides that parties must be given an opportunity to make representations. If there is any ambiguity of interpretation, Pepper v. Hart means that judges will be able to look at what I as a Minister have said in this House.
Subsection (3) of new clauses 10 and 14 both relate to representations made when the Lord Chief Justiceor the head of criminal justice, Sir Igor Judgeis called on to consider whether to approve a section 43 order. The Government do not consider it necessary to prompt the Lord Chief Justice or Sir Igor Judge to consider whether the parties have been given an opportunity to make representations, as proposed in new clause 10, or to consider whether they should be given the opportunity to do so before him, as proposed in new clause 14. We believe that such matters are best left for the senior judiciary to determine, as that is what they are there for.
I anticipate that the process is likely to be that, after a full oral hearing for the initial application, the head of criminal justice will determine whether a further oral hearing is required. That would be entirely a matter for him, in all circumstances. Sometimes, that further hearing would not be needed, but sometimes it might. I make no commitment on that: we believe that the matter is best left for the senior judiciary to determine. The oral hearing will take place before the initial judge, and that is the best place for it.
Simon Hughes: I am grateful for the contributions on these new clauses. With your permission, Mr. Deputy Speaker, we intend to test the mood of the House in respect of new clauses 11 and 13.
New clause 9 is different from new clause 13, as it would allow an application on the instigation of the defendant alone, whereas new clause 13 would allow equality of arms. Those of my colleagues at the other end of the corridor who oppose the Bill believe that, if we are obliged to go ahead with it, trials should be held without a jury only at the instigation of the defence, and not at the instigation of defence and prosecution. None of us wants to go down that road, but the equality argumentone of the central planks of this short debateremains valid, despite what the Solicitor-General said to the hon. Member for Beaconsfield (Mr. Grieve). If there is a case for the prosecutor to go to the judge and say that the case should be heard by a judge alone rather than by a jury, I cannot see how justice is done if the defendant cannot also do so.
To put it bluntly, there are two proposed alternatives. The first is that the defendant alone could make the application. I understand that the Government will resist that. The second is that there be equality of arms. I have not heard such a strong argument against that. The Government have said honestly that that was not where they were coming from, so that was not where they were. If, despite our opposition, the Bill receives a Third Reading and goes to the House of Lords for consideration, I hope that the Solicitor-General will reflect on whether at least that might be a step in a direction that made it more attractivenot that we would change our view on the substance of the Bill this year, but if the Bill were to become law in future.
There is a difference in importance between new clause 10 and new clause 11. I understand what the Solicitor-General said about the other sections in the 2003 Act which deal with the procedure of putting to the judge in a preparatory hearing the case for both sides before the judge makes that decision. New clause 10 barely increases the strength of the right to do that. It would make a small adjustment. New clause 11, however, would make a significant adjustment to the proposition. It adds another safeguard. We absolutely do not want the Bill, but if we are to have it, there need to be safeguards: the interests of justice safeguard, the security of the verdict safeguard and the interests of the defendant or the prejudice to the defence safeguard. The new clause seeks to ensure that we retain the prejudice to the defendant safeguard.
Finally, I turn to the matter that was referred to in the Governments consideration of the position. I do not believe that the Government argument that if one gave equality of arms it would suddenly open up the debate, stands more than minimal investigation or consideration. Of course there would be the potential for more applications because both prosecution and defence would apply. Therefore there might be more trials of this type. The Government case is that this would be limited to serious fraud in any event, subject to the check of the judge and all the arguments, and then the check of the Lord Chief Justice or others, so there will be many checks down that road. In a way the Government have put their case on the basis of its being an experiment. For there to be an experiment, both sides need to have an equal opportunity to participate. That is not the case. It is a reason why the
Bill should not proceed. If it does proceed, I hope that that is a reason why the House should support the new clauses.
If I may, I beg to ask leave to withdraw the motion.
(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... [Simon Hughes.]
Brought up, and read the First time.
Motion made, and Question put, That the clause be read a Second time:
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