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Clause 37
Application by prosecution for
complex or lengthy trial to be
conducted without jury
Simon Hughes: I beg to move amendment No. 205, in
clause 37, page 24, line 29, leave out from 'he' to 'but' in line 30 and insert
'may, subject to subsection (6), make an order—
(a) specifying that the trial is to be conducted with a smaller jury consisting of eight jurors all of whom have indicated their willingness to serve on a potentially complex and long case,
(b) appointing up to two special advisers to assist the jury in understanding any arrangements, transactions or records of a financial or commercial nature or which relate to property and which relate to the trial, or
(c) specifying that the trial is to be conducted without a jury.'.
The Chairman: With this it will be convenient to discuss the following amendments:
No. 237, in
clause 37, page 24, line 29, leave out 'must' and insert 'may'.
No. 238, in
No. 239, in
No. 240, in
clause 37, page 24, line 32, leave out '(or both)'.
No. 272, in
clause 37, page 24, line 32, leave out from second 'trial' to end of line 38 and insert
'is likely to be such that—
(a) it may place an excessive burden upon the life of a typical juror; and
(b) after reasonable efforts have been made, no jury can be found for which it would not be an excessive burden.'.
No. 206, in
clause 37, page 24, line 34, leave out paragraph (a).
No. 241, in
No. 273, in
No. 243, in
clause 37, page 24, line 43, leave out 'or commercial'.
No. 244, in
No. 245, in
clause 37, page 24, line 44, leave out 'nature or'.
No. 207, in
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(a) all steps which might reasonably be taken to reduce the complexity or length of the trial have been taken,
(b) the judge is satisfied that after such steps have been taken conditions (1) and (2) above continue to be met, and
(c) the judge is satisfied that such an order will not compromise the defendant's right to a fair trial.'.
No. 274, in
clause 37, page 25, line 3, leave out 'complexity or'.
No. 246, in
clause 37, page 25, line 4, leave out subsection (7).
No. 208, in
clause 37, page 25, line 5, at end insert 'or the defence'.
No. 254, in
clause 37, page 25, line 6, at end add—
'(8) the length of the proposed trial shall not be considered by the judge unless
(a) the Prosecution and Defence have jointly advised that the trial is likely to be longer than 12 months, and
(b) the Judge takes the same view, and
(c) the Judge is satisfied that it is not reasonably practicable to impound a Jury.'.
Simon Hughes: We are now on to the debate on whether jury trials could be done away with after application by the prosecution for judge alone trials in complex or lengthy cases. The amendments from both Opposition parties represent an attempt to mitigate that. I am still not persuaded of the merits of the clause, and like other hon. Members I expect to vote against it when the time comes.
Mr. Grieve: Some of the amendments were tabled by my hon. Friend the Member for Hertsmere (Mr. Clappison), but he is not here because he is unwell. I mention that because he would not want the Committee to think him discourteous for not turning up to debate his amendments.
3.15 pm
Simon Hughes: I hope that none of us will think that.
The Liberal Democrat amendments seek to restrict applications for trial without jury in such cases. Amendment No. 205 suggests two obvious ways, which have been widely canvassed, to deal with the fact that long trials can be inconvenient to juries.
The experience of those who try long trials, especially complex fraud cases, and of the Serious Fraud Office, which manages most cases of that sort, is generally successful. It may surprise the public to hear that there is an 86 per cent. conviction rate. The problem is not public understanding but the practical problem of whether it is convenient to have to be in court week after week in a case that may go on for 18 months. I understand that the Government were motivated to make the change not because of the inability of juries to cope with long cases intellectually or for other reasons, but because of the practicality of dealing with such long cases. The amendments therefore seek to address the practical question of how to maintain the jury principle in a way that does not make jury service too difficult.
The first suggestion in amendment No. 205 is that instead of having a trial without a jury, the judge could order that the case be
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heard by a smaller jury of eight jurors, and that those jurors would have to indicate their willingness to serve on a potentially long case. The second suggestion is that two special advisers could be appointed to help the jury to understand financial or commercial matters.
I am keen to promote the representative nature of the jury. It would not necessarily lead to a less representative jury if we had to establish whether potential jurors were able to hear a long case. For instance, the fact that people may be retired does not necessarily mean that they are elderly: they may have retired at a relatively young age. Those who are not working may be unable to do full-time or even part-time work because of illness or disability, but they may be willing to serve. On the other hand, it may be inconvenient for some people to serve on a jury in a long case for family, personal or career reasons.
The Government are keen that there should be far fewer exemptions from jury service. They want everyone to be included—for instance, GPs should not be able to get off jury service as they have in the past. We need a combination of factors. First, we need to ensure flexibility for those called to jury service—they should be able to say, ''I cannot do it now, but could manage it from next June onwards,'' or, ''I am in difficulty between now and Easter, but not afterwards.'' Secondly, if the risk is that 12 people could not easily be found who could serve for a year, we need to be able to ask potential jurors if they could serve for that long. In either case, we would still ensure a representative jury.
The other objection to jury trial is that cases might be too complex—to be honest, many people find book-keeping complex. If so, we need other people to help the jury. We cannot ask the judge, who may not be an expert, and we cannot ask the lawyers, who may occasionally have an interest in confusing matters. We need someone—perhaps an accountant or a book-keeper—to be able to tell the jury what a balance sheet means and, as an independent adviser, give an interpretation of the figures. That is one way of dealing with the concern over complexity.
Dr. Desmond Turner (Brighton, Kemptown): I am a complete layman, but it appears that clause 37's biggest difficulty is precisely the reverse of the argument that was made under clause 36 that the defence would play the system and choose whatever mode of trial was to their best advantage. In clause 37, the prosecution have the opportunity to do exactly the same. They can attempt to choose the mode of trial that would best increase their chances, and thereby disadvantage the defendant. I see nothing in the clause or the amendments that provides any comfort or protection for defendants.
The Chairman: Order. I appeal to Committee members, as I did this morning, to make short interventions. If speeches are required, all that has to be done is to catch my eye.
Simon Hughes: I am grateful, Mr. Cran.
I share the hon. Gentleman's views. I prefer for there not to be that choice. One job that we always have to do in opposition, as he will discover—
Dr. Turner: Not for a long time.
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Simon Hughes: Some of us hope that it will happen sooner than he may wish, and in any case the hon. Gentleman can be in opposition sitting where he is. That is another option, but far be it from me to give him that advice.
We must seek to ameliorate the situation. I know that we would rather get rid of the clause, but the process up and down the Corridors sometimes means that one does not get all that one wants, and there must be a compromise. I am trying to improve matters without breaching the point of principle to which the hon. Gentleman referred.
It has never struck me that there is a theology behind there being 12 on a jury, although I do know the theology behind the number 12. In this country, I am not sure where the idea to have 12 people on a jury came from. It may have derived from the fact that there were 12 disciples, and therefore somebody felt that that would be the right grouping of people to summon to decide on matters of justice. We moved on, and majority verdicts were introduced—originally 11–1, now 10–2. Given that, it strikes me that there is a perfectly reasonable argument to have a slightly smaller jury. No magic surrounds a jury needing 12 people to make it perfectly representative. Opinion polls could no doubt advise us on that matter.
Mr. Malins: May I reinforce the point by saying that juries in France usually consist of nine people? There is no especial magic in the number 12.
Simon Hughes: There may be some deep psychological and historical reason why different numbers are chosen. We can only speculate on that.
Amendment No. 206 would leave only one reason why the prosecution could apply for a trial to be conducted without a jury. All the amendments are lesser alternatives—they are second preference to removing the clause—but No. 206 would mean that the only condition that could justify not having a jury trial would be that it
''would be likely to place an excessive burden upon the life of a typical juror.''
The amendment would get rid of the argument that to hold a jury trial would be so burdensome that a judge only trial would be
''necessary in the interests of justice'',
not least because some of us argue that that is an evaluation one cannot make, and that justice is better served by the conventional jury trial.
Amendment No. 207 would remove the criteria that the Bill requires the judge to fulfil. Those criteria are sensible as far as they go. If the Bill becomes law, the judge will be required to work out whether the two conditions set out in subsection (4) are fulfilled.
Subsection (6) states:
''In deciding whether or not he is satisfied that both of those two conditions are fulfilled, the judge must have regard to any steps which might reasonably be taken to reduce the complexity or length of the trial.''
That is sensible. A judge might think of ways of making the trial easier. Increasingly, courts use summaries of facts. They use other documentation supplied by agreement of both sides to make it simpler
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to understand lots of paperwork. I welcome that. Decisions are also taken to make the cases shorter. Sometimes they have longer sitting times so that people do not have to spend so many days but have as many hours. Sometimes they have shorter lunch breaks. There are various ways in which it can be done. Often a number of specimen counts are chosen rather than having every possible count on the charge sheet.
We want to beef up the preconditions for ordering a non-jury trial in a serious, complex or lengthy case. First, the judge would have to have taken reasonable steps to reduce the complexity or the length of the trial. Secondly, he would have to be satisfied that it was necessary not to have jury trial to make it less burdensome. Thirdly, he should be satisfied that the defendant's interests would not be compromised. That ties into amendment No. 208.
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