Mr.
Grieve: Some Members will recollect that when we
considered the Criminal Justice Bill in 2003—it introduced
section 43, the matter now under consideration—we considered
whether jury trial should be restricted for several different
categories. One of the principal arguments at the time, and one on
which we persuaded the Government to back down, was over the
Government’s wish to give a general right to the defendant to
obtain a trial without a jury. The right could be denied in cases where
it was thought that the defendant was trying to avoid the wrath of the
public; that is, the defendant might consider that a compliant judge
would be kinder than a jury. I took grave exception to the principle
and argued against it. As a result, it was eventually defeated in the
Lords and the Government dropped
it. We also considered
whether to get rid of juries for cases in which jury nobbling had taken
place, or where there were grounds to fear that it might take place and
justify, in effect, a Diplock court because the trial could not take
place with a jury. For obvious reasons, the prosecutor would normally
seek such a ruling, because, on the whole, defendants would not seek a
ruling on the basis that they would nobble their own jury, albeit
sometimes a defendant fears that somebody else—for example, a
co-defendant—might nobble the jury to his
prejudice. Leaving that
to one side, I have never been keen on the idea of defendants being
able to opt out of jury trial. However, having said that, my right hon.
and learned Friend the Member for Sleaford and North Hykeham made a
good case, because what is sauce for the goose is sauce for the gander,
and there is a lack of equality of arms in a process in which only the
prosecution can argue that the seriousness, complexity and length of a
trial is such that the jury should be removed, and the trial should
take place by judge alone. If the Government are arguing the principle
that it is offensive to good justice that such long, complex trials
should be allowed to take place with a jury, I cannot see why the
defendant should not be allowed to make that argument as
well. Moreover, if we
are to end up with multi-handed trials, which often happens—it
is common for four, five, six, seven or eight defendants to be tried
for fraud together—when the case goes before the Lord Chief
Justice on an application by the prosecution for trial by judge alone,
it must at least be possible that different defendants will have
different views on the matter. Some defendants may welcome the idea of
trial by judge alone, but others may argue that they wish to be tried
by a jury. Therefore, while the system in the Bill allows such an
argument to take place, it seems to be a little defective, whereas the
new clause tabled by my right hon. and learned Friend would establish
straightforwardly and clearly that all parties can argue one way or the
other. I do not think it beyond the bounds of possibility that there
might frequently be circumstances in which all sorts of arguments would
be made from different
angles. To take an
example, the Solicitor-General raised the issue of the full criminality
being exposed. One consequence of the exposure of full criminality, as
an example, is that it frequently happens—I have been involved
in such trials with juries—that there are two principal
defendants and a third defendant whose role
in the overall alleged fraud is pretty minimal. He, however, has to sit
through months of evidence, while his barrister picks up substantial
fees for doing absolutely nothing because it is not until day 56 of the
trial that he finally comes to the witness box to give the bit of
evidence that concerns his client. In such cases, there might well
be arguments for severance, and one of them might be that one lot of
defendants says, “It is a long and complex trial. We would like
it to take place in front of a judge alone, because that would shorten
it,” whereas the other defendant says, “This is a long
and complex trial, and it will be made even longer if I have to appear
in front of a judge alone; I want it to be severed, and I want to argue
to be tried in front of a jury, because my case is a short and simple
one.” I give
that by way of illustration. I might add that that argument could even
take place as the Bill stands. Given that one can easily foresee a
multiplicity of arguments, I must say that my right hon. and learned
Friend has made a powerful and compelling case and I will be happy to
support him if the matter goes to a vote. I see that the
Solicitor-General has a full reply to make. It might be that on this
issue we have persuaded him that there is merit in the point that is
being made.
The
Solicitor-General: I have in my hand the original clause
that the Government included in the 2003 Bill. At that stage, it was
our intention that there should be an ability for the defendant to
waive jury trial. In that case, we also provided for defendants taking
different views by giving a veto to a defendant. I am curious, because
the Conservatives strongly opposed the provisions at that time and it
seems that they nowtake a somewhat different view, as do the
Liberal Democrats. Can the hon. Gentleman say whether, if we introduced
a provision such as this, which we had not intended to do, the
Conservatives—and, perhaps, the Liberal Democrats—would
be disposed to support it?I might well be disposed to give it
serious consideration.
Mr.
Grieve: I fairly laid out, I hope, two key points. First,
my principled opposition to opening a door that allowed people to elect
trial without a jury. That is what was debated during the passage of
the 2003 Bill, and it is something to which I remain resolutely opposed
because I believe in jury trial. I made that clear then, and I am sure
that it coloured my approach to the various areas in which the
Government wanted to restrict trial by jury. However, I accept that if
the measure, which I do not want to see on the statute book, is to be
placed on the statute book, then there may be an argument—the
one put forward by my right hon. and learned Friend the Member for
Sleaford and North Hykeham—for saying that what I have described
as fairness or sauce for the goose and sauce for the gander demands
that a defendant should be able to make a similar
application. Although,
as I indicated, I can see that that argument could take place in cases
in which there is more than one defendant, it ought to be possible,
too, if there is a single defendant. I do not know what the
Solicitor-General wishes to do about that. In any event, it is not my
amendment; it is that of my right hon. and learned Friend, who will
doubtless respond shortly.
However, we could leave it for the moment if the Government wished to
return to the matter on Report; it could be considered in another
place; or we could all reflect on
it. 6
pm My right hon.
and learned Friend makes the compelling case that if we allow one party
to ask for something in those circumstances, once we have conceded the
principle and even though we did not like doing so, there will be a
strong argument for letting the other party make a similar application.
I am quite prepared to consider it, although it may be wise to reflect
on it briefly before trying to reach consensus. As it is not my new
clause, however, I defer to my right hon. and learned Friend—and
to the Solicitor-General.
The
Solicitor-General: It has been an
interesting debate. The proposal that the Government put forward in the
Criminal Justice Act 2003 was similar to that being put forward as a
new clause by the right hon. and learned Member for Sleaford and North
Hykeham. If my recollection serves me well—I stand to be
corrected—the Conservative party strongly opposed the idea, as
did the Liberal Democrats. They now support the provision.
It had not been the
Government’s intention to revive the proposal for the defendant
to have a waiver on jury trial. However, I am more than happy to
reflect on the idea. Some time ago, the Government would have been
disposed to accept not the broad recommendation of the Auld review for
a general waiver but a specific provision that would give a defendant a
veto on a non-jury trial, so that if one defendant wanted a jury trial
and the other did not, a jury trial would take place, unless the
prosecution had made its application in the normal way.
That is how we dealt with it,
but I have been led to believe by the substance of the debate that
Opposition Members are seriously prepared to revisit the matter and
would be prepared to support a Government amendment on report. I do not
know whether we would be in time to do it on Thursday, but we might be
prepared to table a Government amendment after due reflection and some
discussion. I give no undertakings at this stage; I say only that I am
prepared to reflect on the matter and discuss it.
I have listened with care to the
proposals of the right hon. and learned Member for Sleaford and North
Hykeham. I do not envisage that it will unduly delay the passage of the
Bill. We have always tried to proceed through consensus. Given the
strong speeches made by the right hon. and learned Member and by the
Liberal Democrats in favour of the amendment, and the encouragement of
the Opposition spokesperson, the hon. Member for Beaconsfield, I feel
that the right hon. and learned Gentleman might not wish to press the
matter to a Division, and that he will agree that we should reflect on
it and perhaps return to it on Report.
Mr.
Hogg: I am grateful to the
Solicitor-General. I realise that he is not giving an undertaking to
come back with an amendment on Report that would encapsulate or wholly
reflect my thoughts. However, I understood him to say that he would
give serious consideration to the principle. He indicated that he might
be willing to
embark on negotiations and discussions with Front Benchers. I would be
rather pleased to be associated with those discussions. That said, it
would be churlish not to welcome what the Solicitor-General has
said.
I have told
you already, Mr. Bercow, that my knowledge of procedure is
20 years old. Do I need the leave of the Committee to withdraw my
motion? If, by any chance, the Government do not introduce proposals of
the kind that we have outlined, I am sure that the Committee will not
be surprised if I seek to catch the Deputy Speaker’s eye and
move something similar on Report. I beg to ask leave to withdraw the
motion. Motion and
clause, by leave, withdrawn.
New Clause
2Safeguards “(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), at end add ‘, the defendant, or any of the
defendants in cases where there is more than one
defendant.’.”.—[Mr.
Hogg.] Brought
up, and read the First
time.
Mr.
Hogg: I beg to move, That the clause be read a Second
time. The new clause
is a safeguard provision. If one refers to section 43 of the 2003 Act,
one will see that there are precious few safeguards for a defendant.
The only criterion applicable to an order as to whether a judge-alone
trial is made is that which is set out in section 43(5). There, the
court is not directed in any strong way to consider the position or the
arguments of the defendant, and in general terms of fairness and
parity, that seems to be unfair. Let us remember that under the
existing provisions, the Crown is the party who makes the application,
and one must assume that the Crown—the prosecution—is
under the belief that it is in the Crown’s interests to make it.
However, the Crown is not obliged to consider the welfare and interests
of the defendant, nor is the court so directed in any direct manner.
Consequently, the interests of the defendant do not seem to be properly
protected under the existing legislation.
The Government from time to time
talk about rebalancing the criminal system. I am deeply suspicious
whenever I hear that, because I subscribe to the old-fashioned view,
which I believe none the less to be right, whereby it is better by far
that the occasional guilty person escapes justice than that innocent
people are convicted. Incidentally, that view is regularly reinforced
by Lord Bingham, the former Lord Chief Justice, who has committed
himself to it in several recent judgments. I entirely agree with him. I
have seen miscarriages of justice, and I have been associated with them
in the criminal courts. I have seen people convicted of serious
offences when in my judgment they should not have been. It is
unpleasant and upsetting, and it should not happen in a mature judicial
system. I want, therefore, proper safeguards.
One must ask, “In what
circumstances would a defendant assert that a judge-alone trial might
be unfair?” We must leave aside the fact that many judges become
prosecution-minded. It is important to keep that fact in mind, but it
would be difficult to articulate to the trial judge. I have practised
at the Bar off and on since 1968-69, sometimes more off than on,
because I was a Minister for 13 years, but it does not alter the fact
that I am pretty familiar with judges, and many become
prosecution-minded. I agree that that argument would not be easy to
advance to a trial judge in favour of a jury or of denying a
judge-alone trial, but it is a fact.
There are other curious
circumstances in which that argument may arise, most notably the
perverse verdict. Oddly enough, despite the name, “perverse
verdict”, it is one of the important safeguards that a citizen
has against the state. A perverse verdict operates when the Crown can
establish the evidential requirements needed to sustain a conviction,
but, broadly speaking, one should not convict in that case. There are
several examples of that; I shall come to the fraud example in a
moment. In general
terms, there is the mercy killing type of case in which murder is made
out in accordance with the ordinary test of the Homicide Act 1957, but
it was done to spare a person a long and horrible death. The perverse
verdict is where the jury says, “We will not convict in such a
case albeit that the legal requirements have been established.”
Although it concerns a different point, the Ponting case is an example
of the jury deciding that although the evidential requirements have
been made out, the Government have acted oppressively in bringing the
prosecution at all.
Stephen
Hesford: Our common-law jurisdiction has developed over
hundreds of years and all that common law is judge-made. As time goes
by, judges review previous judgments and depart from them or make
different judgments. Does not the right hon. and learned Gentleman
envisage that a judge might come up with a perverse judgment, to use
his term, if he or she thought the prosecution
oppressive?
Mr.
Hogg: There is no chance of that at all. If the legal
requirement were made, a judge would convict as a matter of fact, but a
jury might not because juries bring a different set of considerations
to a case. They bring the consideration of a citizen assessing the
propriety, appropriateness and broad justice of the case. It is not
open to a trial judge who is the judge of both law and fact to do that,
but it is open to a jury. Perverse verdicts are so called because the
jury should not reach that decision, in one sense, and that is why a
judge will not do it. A jury, however, might, and the Ponting case is
one such case.
Juries might
reach similar decisions in fraud cases in which the Crown has behaved
in a way that is oppressive but falls short of “abuse of
process”—a technical term with which lawyers are
familiar. For example, in a case in which there has been unauthorised
eavesdropping, inducements to make witnesses say things or coercive
conduct of a kind that does not quite so infringe the PACE regulations
as to make the evidence inadmissible,
the jury might well decide that they are damned if they will convict
albeit that the legal requirements are met. The perverse verdict is
therefore an important safeguard in protecting the individual as
against the state, and I can well see why a defendant might say,
“I want to have the benefit of a jury trial.” There is
another argument that flows from a point made by my hon. Friend the
Member for Beaconsfield. He is entirely right to say that there is
often a multi-handed defence in which one defendant is the minnow and
the other defendants are the sharks. In such a case, the minnow might
well want a jury trial. My new clause would enable the minnow to say,
“Please let me have a jury trial.” That might have one of
two beneficial consequences: the minnow might win; or the
minnow’s application might be so likely to win that the Crown
would make an application to sever so that the minnow’s case
could be tried separately in a different pond. That is to safeguard the
interests of a defendant.
There is nothing in section 43
that seriously protects a defendant but there should be. I am perfectly
willing to accept that the language in my new clause might be a little
off, but, incidentally, it is modelled on section 43(7) in which the
phrase “significantly disadvantage the prosecution” is
used by the Government. They cannot, therefore, be heard to quarrel
with the phrase “significantly disadvantage a defendant”
because that is their language while the
phrase “or otherwise
prejudice a defendant” is
a concept very well known to the criminal
courts. 6.15
pm I
hope that the Solicitor-General, in the surprising spirit of compromise
that is developing in the Committee and which as a good-natured chap I
encourage, comes forward to say, “Well, he has a point and I
will take it away and give it serious consideration”. If he does
that, on the same terms as I have withdrawn new clause 1, I will
withdraw new clause
2.
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