Simon
Hughes: I rise to support the new clause and will briefly
say why. At the moment, when an application is made, the law as drafted
requires the judge to consider a limited number of issues. The most
important of which is whether a case is burdensometo the jury;
that is the effect of section 43(5) of the2003 Act. There is a
definition of what may make a case burdensome that we have partly
touched on in earlier debates: complexity, length or both. The judge
then has to assess whether complexity or length can be dealt with by
procedural matters and if it should become a procedural question. There
is only one other further prerequisite in the current legislation. That
is that the judge is prohibited by law from coming to the conclusion
that to dispense with the jury would be reasonable if it would severely
and significantly disadvantage the
prosecution.
Mr.
Hogg: I think that subsection (7) applies when considering
whether or not there can be changes made to the way the crown is
handling or proposing to handle cases.
Simon
Hughes: The right hon. and learned Gentleman is quite
right; I was not sufficiently precise in my language.
The last part of the
consideration is whether a trial would be able to continue by
management and that is a matter when the interests of the prosecution
are weighed in the balance.
There is no
consideration requirement in the present Act for the defendant’s
interests. The right hon. and learned Gentleman, in tabling the new
clause, seeks to point out that both parties should be considered in
this trial as well as the jury’s interests. The new clause has
the merit of introducing a third and highly relevant player into the
mind of the judge by law when going through the process. Let us look at
the jury—is it in their interests? Let us look at the
prosecution—would it be to their disadvantage if the processes
were changed? If it is to their disadvantage, that road becomes a
cul-de-sac. The right hon. and learned Gentleman asked about the
defendant, but he went further than that and pointed out that what is
in the interests of one defendant may not be in the interests of all
defendants. That, as we all know, it always a material
consideration. The same
reasoning determines whether people elect for a summary trial in a
magistrates court for a lesser offence or go to a jury. Often one
party, normally the less involved participant in the events that give
rise to the charges, prefer a jury because it is perceived they would
give consideration to the separate roles more carefully and give the
benefit of the doubt. The judge, of course, follows the same rules in
theory, but would not have the same confidence of a defendant as a
jury. However, there would be the ability to distinguish those things.
Presuming that this year the Lords will reject the proposal and next
year the Government will bring it back and use the Parliament Act, if
we are driven to have a new process that involves non-jury trial, it
seems imperative that the interests of the defendant is in the mind of
the judge when considering an application. That must mean the interests
of each and every defendant and that is why the new clause has much to
commend.
Mr.
Grieve: I do not want to take up much
more of the Committee’s time. It seems to me that in discussing
new clause 1 we touched on the potential of opening up a new area.
Although our principled opposition to this Bill remains total—I
still believe that the Government will have to resort to the mechanism
of the Parliament Act to get it through another place—if at some
point in the future it is to go on the statute book, even if I dislike
it in principle, I wish it to be as good as possible.
If we are to end up with a
situation where both the prosecution and the defence can apply to the
judge for trial without a jury this will have an impact on all the
preconditions that have to be looked at in order to ensure that there
are proper safeguard. It probably also applies to the new clause 4
conditions that we will come on to look at thereafter. As drafted at
the moment, section 43 has the prosecutor’s view in mind and not
that of the defendant.
If prosecution and defence
representations are considered and there is an option for the defence
to ask for trial without a jury in the very limited number of cases
suggested by the Attorney-General and Solicitor-General, it will be
very important that those measures
should be so tailored first to emphasize the desirability of maintaining
trial with a jury whenever possible, as long as it is not contrary to
the interests of justice, and, second, to ensure that no party is
placed at a significant disadvantage. My right hon. and learned Friend
the Member for Sleaford and North Hykeham has highlighted an important
area in which I have always thought section 43 was deficient. It seems
to look at mechanistic and procedural matters rather than at the issue
of prejudice. I hope I am not opening too much of a can of worms
because I can see that this is a debate which could continue well into
Report if we were to carry out a major alteration to the
Bill. I would
encourage my right hon. and learned Friend the Member for Sleaford and
North Hykeham to withdraw the motion because, clearly, if we are moving
towards the notion that a defendant also should be able to make an
application, we would need to be looking at new clause 2 with that in
mind. I would wish wherever possible to preserve jury trial even if one
side or the other were asking for something different.
That concludes my remarks on the
particular new clause, although I suspect that when we come to new
clause 4, I am likely to repeat very much the same thing, which may
shorten matters. One needs to look at the totality if we are to shift
to a defendant being able to make the application as
well.
The
Solicitor-General: I listened with care to the arguments
put forward in particular by the hon. Member for Beaconsfield about the
interrelationship between this provision and the previous one. I accept
that to some extent if we were to look at the previous issue then we
might wish to consider some of these issues.
Having said that, let me take
the new clause at face value. The effect of new clause 2 would be to
allow the defendant in the course of the Bill to argue to the judge
that his case would be heard by a jury because he would be
significantly disadvantaged by a judge-alone trial. The Government,
however, do not accept that a non-jury trial is capable of prejudicing
a defendant or placing him at a disadvantage and therefore we would not
accept the new clause.
The only
example that the right hon. and learned Member for Sleaford and North
Hykeham has provided of where the defendant might be disadvantaged
seemed to be that he would be hoping for a perverse verdict. As the
right hon. and learned Gentleman has said, the judge is less likely to
come to a perverse decision on the evidence than is the jury. The judge
is also unlikely to decide that he should not hear a case because of
the improbability that he would be perverse.
In the
circumstances, I am not sure that the argument that the right hon. and
learned Gentleman has put forward can possibly stand, because we would
be asking the judge to decide on something where he must conclude that
it would be perverse of him to decide in the way that the right hon.
and learned Gentleman suggests he might. The judge would be deciding
that he might be perverse, and that is nonsense.
In the sorts of case to which
the right hon. and learned Gentleman drew attention, for example, the
Ponting case—I can think of others—we are unlikely
to have a non-jury trial. The Bill deals with serious and complex fraud
cases, and the Ponting case was an entirely different
matter. The right hon.
and learned Gentleman argues that a perverse jury verdict is a
safeguard in particular kinds of cases. That is an arguable point. The
alternative argument is that the interests of justice are that there
should be justice according to the law, and that it is for Parliament
to look at that law and alter it as Parliament sees fit. I hear his
point about perverse jury verdicts. In the past, they have been lauded
as the democratic view of individuals, even though such a view may, on
occasion, be contrary to the law. The complex and serious fraud cases
that the Bill deals with are not the sorts of cases where that issue is
likely to arise. The
latter part of the right hon. and learned Gentleman’s
proposal—the change in proposed new subsection (3)—is
different. In considering a section 43 application, the judge has to
decide whether there are steps he could take that would reduce the
length or complexity of that trial, since that might render a non-jury
trial unnecessary. Section 43(7) requires the judge to disregard any
step that would significantly disadvantage the prosecution. If there
were steps that could reduce the length or complexity of the trial
which might disadvantage the defendant, as opposed to the prosecution,
we would agree that, rationally, they ought to be disregarded under
subsection (7). We cannot think of any such steps in the Bill, and we
are not persuaded that we can accept the new
clause. The right hon.
and learned Gentleman raised an issue, as others have done, about the
issue that I am going to consider in respect of the defendant waiver. I
will examine the matter, although he has not persuaded me on it. I
think that he had a stronger argument on the defendant waiver more
generally. Again, I give him no undertaking and I say to him that I am
unlikely to be with him on the point. I hope that he feels that he does
not have to press this new clause to a Division. If he does not, I
shall ask my hon. Friends to vote against
it.
Mr.
Hogg: Again, I am seeking compromise wherever I can get
it. I note that the Solicitor-General has less enthusiasm for new
clause 2 than he does for new clause 1. I draw the important conclusion
that there might be considerable progress on new clause 1 and perhaps
some progress on new clause 2. I welcome that, as far as it goes. On
that basis, I am minded not to press new clause
2. 6.30
pm However, I say
the following to the Solicitor-General and the Committee at large.
First, do not overlook the importance of perverse verdicts. They are a
safeguard that addresses the risk that the state might act in an
oppressive way, as it sometimes does. It is good for a jury to be able
to say, “Up with this we will not put.”
Secondly, if
the Solicitor-General is right in saying that the circumstances in
which a judge will be satisfied that the defendant’s interests
will be prejudiced by a judge-alone trial cannot arise, in truth no
harm would
be done by including the new clause in the Bill, because it would not
carry any weight. However, the defendant’s interests would be
protected in his or her own eyes, and we are in the business of dealing
with parity. My last
point, which I did not hear the Solicitor-General deal with, is that
when there is more than one defendant, there is the minnow, who may
well decide that there are advantages in seeking a jury trial. Their
interests must not be ignored. If the Solicitor-General will forgive
me, the minnow, in this case, escaped his net. On that basis, and
subject to my remarks, I beg to ask leave to withdraw the
motion. Motion and
clause, by leave,
withdrawn.
New
Clause
3Duty
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— (a) the
prosecution, (b) the defendant,
or (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.”.’.—[Mr.
Hogg.] Brought
up, and read the First
time.
Mr.
Hogg: I beg to move, That the clause be read a Second
time. We are going with
splendid speed, are we not Mr. Bercow? If we crack along, we
might even finish tonight. That would be jolly nice, because I would
not have to get here for 9 am on Thursday; that is an unconscionably
early hour for me. However, that is beside the
point. New clause 3 is
also designed to improve the safeguards for the defendant. It is odd,
but if one looks at section 43 of the 2003 Act, one sees no requirement
on the trial judge to whom the application is being made by the
prosecution to hear oral representations. Perhaps the Solicitor-General
will say that practice directions will be
issued.
The
Solicitor-General: If the right hon. and learned Gentleman
looks at section 45 of the Criminal Justice Act 2003, he will find that
subsection (2) provides
that “An
application to which this section applies must be determined at a
preparatory
hearing”— therefore
an oral
hearing— “(within
the meaning of the 1987 Act or Part 3 of the 1996
Act).”
Subsection (3)
states: “The
parties to a preparatory hearing at which an application to which this
section applies is to be determined must be given an opportunity to
make representations with respect to the
application.” I hope that
that deals with the right hon. and learned Gentleman’s points,
and that he will be able to withdraw the
motion.
Mr.
Hogg: It deals only with the first part of my point, which
I accept has been covered. It does not deal with the second part, about
subsection (3), which deals with the Lord Chief Justice or the
nominated judge. As I understand the procedure under the Bill, the
concept is that the Lord Chief Justice should be a help and that the
judge-alone trial order should be made only with the concurrence of the
Lord Chief Justice or a judge nominated by him.
As far as I am aware, nothing in
the 2003 Act or the Bill requires the Lord Chief Justice to listen to
oral representations. In other words, it is a paper-only exercise. I
certainly accept that many decisions are paper-only
exercises—for example, a decision by the single judge about
whether to grant leave to appeal against conviction or sentence is a
paper exercise only, albeit subject to the proviso that the prospective
appellant can apply to the full court.
I agree that there are
situations when courts determine matters as a paper-only exercise, but
with a matter of this import, I suggest that it is a good thing for the
defendant who does not want to be made the subject of an order to have
the opportunity to make oral representations to the Lord Chief Justice.
That is the burden of new clause 3(3), and I hope that it finds favour
with the
Committee.
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