Fraud (Trials without a Jury) Bill

The new clauses are important and we had an opportunity to explore some of the issues surrounding them in Committee. They raise a difficult matter, as touched on by the hon. Member for North Southwark and Bermondsey (Simon Hughes). New clause 9—or, for that matter, new clause 13, which was tabled by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg)—has the consequence that more trials without juries are likely. The provisions give the defence an opportunity to make an application for trial without a jury. In Committee—and even now—I found myself slightly torn on the matter. I believe in jury trials and I do not believe in the Bill, but I also believe in fairness. It seems to me that if a system is to be introduced by which a prosecutor can go to a judge on an application and argue that the defendant should be deprived of the opportunity of a trial by jury—notwithstanding the fact that the defendant may wish to have one—it is very difficult intellectually to argue that the defendant should not have a similar right if he does not wish to be subject to jury trial. That has had the effect of overcoming my initial reluctance, because the more I think about it—and if I have to contemplate the fact that the Bill will one day be on the statute book—the more I believe that it becomes apparent to anyone looking at the mechanisms that this has been produced entirely for the benefit of the prosecutor. In a sense, the proof of the pudding will be in the eating because if defendants wish to rely on jury trial and the prosecutor does not ask for them to be deprived of it, they will doubtless not make the application in the first place. For those reasons, I take the view that new clause 9—or, for that matter, new clause 13—could provide a minor improvement to this very bad Bill, which I do not support in principle. I was rather struck by the fact that this matter was discussed by the Solicitor-General and me in Committee and that the Government were subsequently informed that if they were to move an amendment to allow this provision to happen, Conservative Members would not seek to stand in their way. Interestingly, the Government turned down the opportunity. In a letter to me and other members of the Committee, the Solicitor-General said:"““Opposition members also raised the question whether defendants, as well as the prosecution, should be able to seek non-jury trial. There are strong arguments for allowing defendants to waive their right to trial with a jury, and indeed a general power of jury waiver was originally included in the 2003 Criminal Justice Bill, although this was subsequently removed following Opposition resistance. A case could certainly be made for a limited provision enabling defendants in serious and complex fraud cases to waive jury trial. The Government is not sure, however, that it would be appropriate to include such a provision in this particular Bill.””" The letter then went on to say that the Government had previously given assurances that all that they were trying to do was to allow the prosecution and no one else the opportunity to make such an application. I have to say that, to my mind, that paragraph gives a rather clear indication of the way in which the Government have been coming at this particular matter. First, the Solicitor-General appears in his letter to conflate the general resistance, which we saw in 2003, of allowing any defendant to make an application for trial without a jury, with the specific issue that we have to consider here. I want to make it absolutely clear that the two have no similarity whatever. I would resist to the bitter end any suggestion that defendants should be given a general power to elect trial without a jury. Indeed, we rehearsed that in 2003 and we made it quite clear then that it was probably a charter for the white collar defendant who wanted a sympathetic judge, rather than a jury that might take a robust view of his activities. For that reason, the general idea of the defendant having an option for trial without a jury does not commend itself to me at all. In this particular case, however, I have to say that I am swayed in my view. I shall listen carefully to what the Solicitor-General and, for that matter, my right hon. and learned Friend the Member for Sleaford and North Hykeham have to say. As between new clauses 9 and 13, I have a preference for new clause 13, which should not present much difficulty to Members who want to support it. New clause 11, tabled by the Liberal Democrats, is of a different order. It seeks to introduce the principle that any decision not to have trial by jury should not"““significantly disadvantage or otherwise prejudice a defendant””." The issue of widening the scope of trial without a jury does not arise in this instance. The new clause would provide an extra safeguard, similar to the other safeguard that we attempted to introduce in the earlier group of amendments. If the hon. Member for North Southwark and Bermondsey were minded to press this new clause to a vote, I would have no hesitation in supporting it. The Solicitor-General said earlier that there would be no creep, in respect of the wedge in the door, once we had moved away from trial by jury in certain fraud cases on an application by the prosecution. However, these matters classically illustrate that that is very likely to happen. There would be a remorseless logic, once we started shifting away from jury trial in some cases, that would allow other people or groups to make similar applications. We cannot get away from that. The best thing that we could do with the Bill would be to vote it out on Third Reading. In the meantime, however, we have to live with the reality. There must be fairness, and as the Bill stands there will be a perception that it has been put together for the benefit and advantage of the prosecutor, and not of the defence.