Fraud (Trials without a Jury) Bill

I want to speak to new clauses 13 and 14, both of which I tabled. I also want to comment on new clause 11 tabled by the hon. Member for North Southwark and Bermondsey (Simon Hughes), although this is one of the cases in which he has nicked one of my amendments from Committee, so I have the intellectual property. I repeat what I have said on several occasions: I am thoroughly against the Bill. That said, we are also in the business of improving it. The fact that we are arguing for changes to the Bill to extend the range of cases that can attract a non-jury trial should not be used to argue that we favour the Bill. New clause 11, in which I have the intellectual property, is admirable. It is designed to ensure that a judge who considers an application for a non-jury trial should be in a position to refuse that application if he or she concludes that the non-jury trial order would significantly prejudice the interests of the defendant. That seems to me to be a clear test, which is in accordance with natural justice and which I strongly commend to the House. Being as dispassionate as possible, I cannot identify a decent argument against it, save the argument of my friend the hon. and learned Member for Medway (Mr. Marshall-Andrews), who asserts repeatedly that the Bill is so bad that we should have nothing to do with it. I will certainly support the new clause if it is pressed to a vote. On new clauses 13 and 14, the question is whether, given that the Crown can make an application for a non-jury trial, the same right should be given to the defendant. I have practised law, off and on, for 40 years or thereabouts. The assertion that one should give to the Crown the sole right to make an application of such profound consequence to the conduct of a trial, and deny it to the defendant, seems to me to be manifestly unfair. I can identify no principle on which someone who asserts that proposition could stand. The argument of parity of arms, equality of position and plain fairness points irresistibly in the direction of giving the defendant the same right as that given to the Crown. Were The Solicitor-General to accept this or a similar proposal, while we would denounce the Bill and the process, I would not accuse him of pushing the wedge into the wood, as I know that we are pushing the wedge into the wood. It would be dishonest of me to criticise him on that narrow ground, and I promise that I would not do so. I do not suppose for a moment that my hon. Friend the Member for Beaconsfield (Mr. Grieve) or the hon. Member for North Southwark and Bermondsey would do so, as we know that we are pushing the Government on this point. Leaving aside the issue of whether the proposal is right in principle, the question also arises as to whether there are cases in which the defendant is likely to want to make such an application. We must consider that for two reasons. First, of course, we must consider whether the general right should be incorporated into the Bill. Secondly, if the answer is that it should, we must prescribe the criteria. The criteria on which the defendant will seek to make an application are not the same as those on which the Crown will seek to make an application; they are different, and probably different in kind. Therefore, I have tried to set out in new clause 14(5) the broad test that a defendant would have to satisfy to procure a non-jury trial order. I suggest that there are at least five cases—doubtless there are others—in which a defendant might wish to make such an application. The hon. Member for North Southwark and Bermondsey identified two. The first, which I ventured to mention earlier, is cost. Increasingly, defendants will be paying their own costs. I do not particularly object to that in proper cases. Even when the legal aid fund pays the costs, the defendant can incur substantial losses through loss of employment or the fact that he or she cannot earn his or her income. In some cases a non-jury trial is likely to be shorter than a jury trial, and for that quite narrow reason a defendant might want a non-jury trial. It is a perfectly good reason, and one that should be available to defendants. Secondly, I can contemplate a number of classes of case that a defendant might prefer to be tried by a judge alone. Defrauding of pensions is an example, in a climate in which people are very sensitive about their pension rights. If the allegation against the defendant was conspiracy to defraud a pension fund, for example, I can imagine the defendant being rather uneasy about leaving that question in the hands of a jury, given the background of which the House is now aware. Let me give another example that is less flattering to ourselves, and cite the class of the defendant. Let us assume that politicians are among the least popular class of individuals. Would a politician—perhaps a high-profile politician—necessarily want to leave his or her case in the hands of a jury? In libel cases, the answer is sometimes no, and what is true of libel cases may well be true of criminal cases. A fairly unattractive politician—or just a politician—might reckon that he would have a fairer trial at the hands of a judge alone than at the hands of judge and jury.