Fraud (Trials without a Jury) Bill

I know that this concerns my hon. and learned Friend, so I shall deal with it at some length. The issue requires careful analysis. In much of Europe single judges or a tribunal will deal with cases. Indeed, in Northern Ireland we have Diplock courts. The Government are confident that existing public interest immunity procedures are fair and effective and do not in any way endanger the rights of defendants. Currently, both lay magistrates and district judges hear public interest immunity applications and go on to find on the facts. The same is true of Crown court judges, dealing with confiscation proceedings. We are confident that these procedures will work equally well when used in the course of an application under section 43. Doubts have been expressed about the impartiality of a judge who, having heard information prejudicial to the defendant, goes on to hear the facts. However, having detailed knowledge of this sort of information does not necessarily mean that the judge will automatically be considered prejudiced, as some of those raising objections seem to imply. Rather, the key question must be whether there are any ascertainable facts which would raise legitimate and objectively justified doubts about a judge’s impartiality. I am not convinced in general that there are. The first point to note is that information prejudicial to the defendant is not likely to be the subject of a PII application in any event, but it is possible. Secondly, the judge is perfectly able to disregard any irrelevant information and may indeed be well used to doing so. In the case of R v. H and C, the House of Lords made the following relevant observations:"““If PII applications are confined, as they should be, to material which undermines the prosecution case or strengthens that of the defence, the bench will not be alerted to material damaging to the defendant. If it is, the principles which should govern the court’s decision whether to recuse itself are the same as in the case of any other tribunal of fact, but the court’s duty of continuing review ordinarily militates in favour of continuing the proceedings before the court which determines the PII application.””" In the recent—2005—case of R. v. May and others, which involved carousel fraud, the Court of Appeal considered the fairness of proceedings where the same judge had dealt with PII applications in proceedings for conspiracy to cheat the Revenue and in later confiscation proceedings. The judge stated that in reaching his decisions in the confiscation proceedings, he had ignored any material that he had earlier decided attracted public interest immunity and should not be disclosed. The appellants argued that that was unfair and that the judge should have ““recused”” himself. The Court of Appeal rejected that argument and emphasised that it was perfectly possible for a judge in such a position to put prejudicial material out of his mind. As the Court of Appeal said:"““That is a familiar process in judicial decision-making in this country. It is, to take only one example, a process which has to be gone through whenever this court has to consider an appeal both against conviction and against sentence: the court in preparing for the hearing may have seen material relevant to the sentence appeal which it must ignore for the purpose of the conviction appeal. It does so conscientiously.””" The Government do not accept that anything in the Bill will prevent defendants from getting a fair trial or lead to any breach of defendants’ rights under the European convention. Indeed, I am pleased to note that when the Joint Committee on Human Rights considered those issues, it came down firmly on the Government’s side.