Criminal Justice Bill

Public Bill Committee, 14 January 2003.

Standing Committee B

Clause 36 - Application by defendant for trial to be conducted without jury

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss the following amendments:

No. 202, in

clause 36, page 23, line 31, leave out 'must' and insert 'may'.

No. 203, in

clause 36, page 23, line 31, at end insert

'if he is satisfied that this will not compromise the defendant's right to a fair trial'.

No. 232, in

clause 36, page 23, line 32, leave out '(6), (7) or (8)'.

No. 252, in

clause 36, page 23, line 35, at end insert

'unless the judge orders separate trials for each defendant.'.

No. 233, in

clause 36, page 23, line 36, leave out subsection (6).

No. 251, in

clause 36, page 23, line 37, leave from 'holds' to end of line 39 and insert

'an office or employment involving the exercise of judicial duties.'.

No. 250, in

clause 36, page 23, line 37, leave out 'or has held'.

No. 234, in

clause 36, page 24, line 7, leave out subsection (7).

No. 235, in

clause 36, page 24, line 16, leave out subsection (8).

No. 236, in

clause 36, page 24, line 19, leave out subsection (9).

No. 295, in

clause 42, page 28, line 2, leave out subsection (1).

Dominic Grieve (Conservative, Beaconsfield)

I am sorry that the hon. Member for Nottingham, North (Mr. Allen) moved the amendment only formally, because requiring the reasons to be given for the application seems to be of some importance. However, a large number of other amendments can be considered, including some tabled by the Liberal Democrats. I note that the hon. Member for Southwark, North and Bermondsey (Simon Hughes) has only just arrived, so I shall try to hold the fort until other members of the Committee feel able to participate.

A large number of Conservative amendments have been tabled to clause 36, which may be one of the most important in the Bill. First, we must ask whether a defendant should be able to apply for his trial to be conducted without a jury. The Committee will have to give careful consideration to that, especially as the clause provides for certain exceptions. For instance, someone may make such an application but find that he is denied the right. That is a matter of concern—an issue of principle is involved—and I hope that the Minister will respond.

If the Government take the view that trial by judge alone is so satisfactory that individuals should be able to seek it as an alternative to jury trial, why in the same breath do they seek to deny it to certain categories of individual? As I read the clause, they seem to think that the public would be unhappy with such a move, and that public opinion would be that justice was not being done if the trial took place by judge alone. That is one of the key issues that we have to consider.

The Minister will be aware that the official Opposition have grave reservations about the provisions relating to trial by jury. That said, however, we should consider each provision in turn because I am mindful of the fact that they may each have different merits and because each raises different problems. The principle that someone should be able to choose trial by judge alone is perhaps the most innocuous. After all, the jury system exists principally to provide a defence and protection to the person who is to be tried.

If an individual has a preference for trial by judge alone, it may be a circumstance that Parliament should be willing to permit. The problem is that, when one starts looking at the details, it seems that the Government have an uneasy sense that in some circumstances it could cause problems. They have answered their own question: there are compelling grounds for continuing to have jury trial for all indictable offences and the procedure of mixing and matching and allowing choice is undesirable. We need to examine that issue.

Amendment No. 232 is preliminary to amendments Nos. 233 and 234, which are designed to enable the Committee to consider subsections (6) and (7). Should we, for instance, deny somebody jury trial under subsection (6) because he has held an office or employment concerned with civil or criminal justice? Can the Minister explain the rationale for that approach? It might be that people would be anxious that there would be too pally a relationship between the individual and the person trying him. I can think of one instance in which a disgraced Crown court judge appeared in front of a stipendiary magistrate when the time came for his disgrace to be completed. Nobody said at that time that there was anything untoward about it.

Subsection (7) concerns a different issue, denying jury trial in instances in which the facts concern the administration of justice being brought into disrepute. I find that concept esoteric. The closest real life example that I can think of is that of an individual who is being tried for bribing a judge. It is difficult to

imagine any other circumstance in which it would apply. The anxiety that I experience in considering the provision is that the phraseology, although doubtless designed to address a particular instance, could be applied far more widely than is intended. For instance, do the Government mean by ''the administration of justice'' that the case of somebody who had been charged with attempting to pervert the course of justice—probably not something that concerned his relationship with the judge, although it might have involved the intimidation of witnesses—would constitute a circumstance in which trial by jury had to take place?

We could even experience the state of affairs in which somebody was denied trial by judge alone for having attempted to nobble a jury, but at the same time—under a later clause—his trial, after a further attempt at jury nobbling, would end up with the judge alone. There are inconsistencies in the wording that could lead to bizarre circumstances. The Committee must, so far as it can, predict and anticipate the bizarre. Otherwise we shall end up with a very strange system.

Amendment No. 251 covers the distinction between a judge and a recorder. It appears that a person would be covered, and would be denied jury trial, only in circumstances in which he was employed in a judicial capacity. What about those who fulfil a range of judicial offices that are not described as employment? Are they supposed to be covered? The Minister might want to consider that. Perhaps I am wrong, and the phrasing of the clause does cover such a person.

Amendment No. 250 is a probing amendment, concerning the post of office holder, unless it comes within subsection (7). To whom is that supposed to apply? If the Minister could help us on that, it would initiate the debate. Similarly, amendment No. 235 seeks to leave out subsection (8). What other exceptions might make it necessary in the public interest to conduct a trial with a jury if those exceptions are not contained in subsections (6) and (7)? That is an important consideration for the Committee.

Amendment No. 236 seeks to leave out subsection (9), which states:

''In this section 'the administration of civil or criminal justice' includes the investigation and prosecution of offences and the carrying out or enforcement of an order or sentence of a court.''

Subsection (9) has been included, I assume, to cover a wide range of officers. Does it cover prison officers, for instance? Are they part of the procedure by which a ''sentence of a court'' is carried out or does it apply only to an officer of the court, such as a tipstaff? We need clarification from the Minister on the meaning of those phrases. I hope that in initiating this debate—although I am sorry not to have heard the hon. Member for Nottingham, North speak on his amendment—I have at least set the scene for discussion. It is clear that the more one studies the detail of this clause, the more complicated it becomes.

The Government started out with the fairly simple view before the Bill was published that if people

wanted trial by judge alone without a jury there was no reason that they should not have it. It would be less costly and the Government were sure that such trials would deliver the same standard of justice as trial by jury. It has ended up in fact as an extremely complicated mishmash; seeking on one hand to give that right to a defendant but on the other denying it to him in certain circumstances.

I hope that with the Minister's help we can make a detailed examination of the clause to see first whether it needs to be improved. When we have done that, we can examine its principle in the context of the other proposals to reduce trial by jury and to introduce trial by judge alone.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I thought that I was putting the hon. Member for Beaconsfield somewhat on the spot earlier by making him speak slightly earlier than he expected. I anticipate, Mr. Cran, that there will be a clause stand part debate; therefore I propose to ensure my contribution on the amendments at this stage because the issue of principle is best discussed in the stand part debate that follows.

There are three amendments in my name and that of my hon. Friend the Member for Somerton and Frome (Mr. Heath); there are amendments from the hon. Member for Nottingham, North; and there are amendments from the hon. Member for Beaconsfield and his hon. Friends. Of the three amendments in my name, amendment No. 295 is a consequential amendment to clause 42, and would be made only if the earlier amendments were made. Therefore I need not take up the Committee's time with it.

The first amendment simply proposes that if Parliament decides to agree to trial being by judge alone, by application, the judge should have complete discretion, once the application has been considered, to grant or not to grant the request. Clause 36 sets out the circumstances in which that could happen. At present, under clause 36(1) a defendant may apply for an application for trial without a jury if one or more defendants are to be tried on indictment for one or more offences. The application may be blocked if one of the defendants objects.

In subsections (6), (7) and (8) there is a requirement for refusal if any of the other criteria apply—the criteria to which the remarks of the hon. Member for Beaconsfield (Mr. Grieve) were principally addressed. Those criteria include the slightly unusual circumstances set out in subsection (6), in which, first,

''the defendant, or any of the defendants, holds, or has held, an office or employment concerned with the administration of . . . justice''

and, secondly,

''the judge is satisfied that, if that defendant were convicted . . . questions would arise as to whether he had properly discharged the functions of that office . . . or was a fit person''

and, thirdly, the judge is satisfied that there are exceptional circumstances.

I understand that provision in principle; it attempts to prevent a judge-only decision where an issue arises that could lead to suspicion of a set of vested or common interests, because other people involved in

the administration of justice would clearly regard someone on the inside as a better person to determine their guilt or innocence. The fear is, however, that it would appear to be an old boys' network decision, in which case jury trial would be a protection and would ensure that justice appeared to be done—for example, in the case of a clerk to a magistrates court who had embezzled funds when he or she was collecting fines. I understand the provision, although we could debate whether the wording is perfect.

Subsection (7) gives a third reason why the judge can insist on a jury trial. It states:

''This subsection applies if the judge is satisfied—

a) that, because of the conduct which is alleged to constitute the offence or any of the offences concerned, the issues which will arise . . . include issues relating to whether the administration of civil or criminal justice has been prejudiced or brought into disrepute, and

b) that the matters . . . give rise to exceptional circumstances''.

I would imagine that that would cover issues associated with perjury and interfering with the course of justice, and I completely understand that cases in which such issues arise should not be judge-only trials. It is important that lay people should make decisions about such cases, so that the judgment does not appear to be a legal decision.

Subsection (8) includes a sweep-up provision that will apply where

''the judge is satisfied that exceptional circumstances exist which make it necessary in the public interest for the trial to be conducted with a jury.''

That will probably cover all the circumstances that would also be covered by my amendment, No. 202. It is not easy to think of exceptional reasons why a judge would decide that the public interest requires a jury trial. The only generic circumstances that I can think of are where something does not technically qualify as an exceptional reason but where we might want to give the judge discretion. Alternatively, there might be reasons that the judge does not want to reveal publicly, relating to previous trials that he conducted, for example, if the judge has tried other people in the same series of trials. If the judge had presided over a couple of trials in a series of cases of armed robbery, with three defendants in each, and all had been jury trials, it would be wrong if a judge alone tried the third trial. The third trial might involve a single defendant, because that was how the prosecution conducted their case, and there might not be any exceptional circumstances.

The circumstances of a case may be perfectly routine, but the judge might believe that it should be tried by a jury. That could be for personal reasons. The judge might have been the subject of extreme criticism in the media—for example, in a sex offence case—for giving a guilty verdict but a lenient sentence. In such circumstances, when the next sex offence came before that judge, he might decide, for perfectly proper and professional reasons, that he wanted a jury to decide the case; otherwise, he might be regarded as a judge of a particular species, a weak or a soft judge. I am unsure whether those would qualify as exceptional circumstances, but it would be impossible for that judge to make the reasons for his decision public.

There are plenty of cases in which one might want to allow the judge, having heard the argument and setting aside the merit of the case as a whole, to say, ''On a balance of argument, I believe that it should be a jury trial''.

Paul Stinchcombe (Labour, Wellingborough)

The hon. Gentleman seemed to suggest that the sweep-up provision in subsection (8) might give the judge the same breadth of discretion as amendment No. 202. I wonder whether he concedes too much when he so states. Subsection (8) requires the judge to consider it

''necessary in the public interest for the trial to be conducted with a jury.''

However, subsections (6) and (7) both use the word desirable.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

That is a very good point, and is why, when we thought about the clause, and talked to others about it, it struck them and me that a general discretion with the judge would be better. The hon. Gentleman is right to point out that there are slightly different criteria. The last criterion, which introduces a necessity, is unusual. The judge would have to be persuaded, on a balance of probabilities, that the decision would be in the public interest. The Crown Prosecution Service does that every day, when it makes decisions about prosecution—it takes a more than 50 per cent. test. The judge would have to take such a test.

As it happens, yesterday I visited the judges in Snaresbrook Crown court.

Humfrey Malins (Conservative, Woking)

Did you have a good lunch?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Not particularly. I had lamb pies, an apple, a cup of coffee and some leek soup. Perhaps the lunch improves later in the week.

We talked about the matters under discussion. There is nervousness among judges that they might end up trying cases on their own. They are not strident on that issue, although they also anticipate the problem that we shall discuss in the clause stand part debate.

I ask hon. Members to consider the protection proposed by amendment No. 203, which would add to the end of subsection (3):

''if he is satisfied that this will not compromise the defendant's right to a fair trial''.

Thus, if the Committee rejected the proposal that the decision that trials be conducted without a jury be discretionary, and it held on to the obligatory consequence, the judge, in making an order, would have one more consideration to take into account: that the defendant's right to a fair trial not be compromised.

One might say, ''Hang on a minute. Which judge would say, 'I'm not going to try a case fairly'?'' One would hope that they would all feel able to try cases fairly. However, there is a slightly wider consideration. The question is not simply whether judges think that they can decide the facts reasonably—I am sure that they form views about the facts all the time, even

though they do not make a judgment on innocence and guilt. However, in terms of a fair trial, the issue is as much to do with justice being done as justice being seen to be done.

There may be cases in which the judge believes that it is in the defendant's interest for a jury to give the result. The cases that come to mind most are the notorious sex offences, child killings and the like. I can understand why a defendant would want a judge-only trial in some of those cases. A judge-only trial would probably make the trial much shorter. There would not be the embarrassment caused by the case's being set out before 12 members of the public, and the trial would seem less of a public trial. There therefore might be a temptation for the defendant to say, ''Yes, I want this. This is the way I can get through the system most speedily''. I can foresee pressures on a defendant to do so in some cases.

However, if the case is nationally well known—we can all think of recent examples—it may be better for a jury to take the decision, because a jury's authority is greater than that of a judge. I shall make that argument later. The verdict is that of the public, not a professional lawyer.

Sylvia Hermon (UUP, North Down)

In support of the hon. Gentleman's point, I draw his attention to Diplock courts, which have been in place in Northern Ireland for many years. Judges sitting without a jury there have had to tolerate years of criticism. How can one guarantee that a judge sitting alone here will not suffer that same criticism?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I am very conscious of the history of the Diplock courts. I remember all the anguished debates that we had in the House in the early 1980s when the now Lord Carlile of Berriew and I, along with other colleagues, struggled over whether we could support the emergency legislation. The system placed huge pressure on the judges, to whom I pay tribute, for I have been in the front line in the most terrifying circumstances. It is an unreasonable pressure to put—

Hilary Benn (Labour, Leeds Central)

I am listening with great care to the point that the hon. Gentleman makes.

Does he accept that the consideration that the hon. Lady has raised does not apply, since the trigger for the clause is that the defendant himself or herself has requested a judge-only trial? The circumstances are very different in Diplock courts.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I understand that, but I still side with the hon. Member for North Down (Lady Hermon) for this reason. For example, in the case of a stabbing between members of Roman Catholic and Protestant gangs in Liverpool, a defendant might apply for a judge-alone trial. The judge would be put in a position in which he had no discretion but to hear a trial that concerned the two traditions in Liverpool. The Bill's remits extends to Glasgow also. That might put the judge in a very difficult position. At the end of that hearing, should it be a marginal case, he might become reviled and the subject of abuse from the other

community, even though it was the defendant who applied for a judge-only trial.

The provisions could not, by definition, preclude an application for judge-only trial being made for a judge's very first case on his first day. A judge who has never sat before could be trying a Crown court case. There is nothing in the Bill to allow that judge to say, ''No, I am not comfortable with doing that''. It would be a brave judge who would happily make a decision on the facts alone in his first case. Therefore, there are all sorts of practical reasons to prevent that happening.

On the detail, I do not have strong theological views. I have practical views like those of the hon. Member for Beaconsfield, but I do not seek to repeat the arguments that he made. However, I shall argue in a moment that the defendant's right to request a judge-only trial is an unwise road down which to go.

Amendment No. 285 raises an interesting question, and I understand why it is proposed. However, it may not be practical, for the reasons at which I hinted earlier. Take, for example, an application in Nottingham, or elsewhere, by a defendant in a paedophile case. I am aware that such cases have been the subject of much anguish in Nottingham because of the proposal to house paedophiles in Nottingham jail. As I recollect, the community has been antagonised by that proposal.

A defendant would not want to elaborate in any way that might become public the reasons why he was applying for judge-only trial. We might all speculate about that, but if he was poorly represented or not represented—he probably would be represented—he might make the application in a formulation that was not helpful to him. The defendant might sound weak. He would have to be careful that, even though he was pleading not guilty, it did not appear that he was asking for a judge-alone trial because he did not want someone to assume that he was guilty. There are all sorts of difficulties. I understand exactly and, logically, I would be on his side. I would say that of course he should give his reasons and that everything should be above board. The application should be made in public, and the judge should consider it and give his decision in public. Everything should be on the record, not least because if the decision goes to appeal, it can properly be adjudicated by the higher court. My worry is that the reason why some people might decide to ask for a judge-alone trial might be absolutely the reason why they did not want to say what the reason was. It would therefore be impractical.

Graham Allen (Labour, Nottingham North)

That is why I wanted first to hear the Minister's view. However, the hon. Gentleman has raised the question, and the example that he gives is of great concern to me—but probably even more so to my hon. Friend the Member for Nottingham, East (Mr. Heppell), in whose constituency lies Nottingham prison, although he is sadly not at liberty to contribute to the debate. I should have thought that it was exactly the sort of case for which people might want to hear a public defence of why a trial should be held before a judge alone. Why should individuals be given that privilege? The reasons would

need to be explained, particularly in the highly sensitive cases mentioned.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I meant no discourtesy to the hon. Member for Nottingham, East by mentioning a case that I remember from my past visits to Nottingham, but it was a big issue in many parts of the city and was the sort of case that would be carefully followed by the local press.

I shall give one last example. The most famous case relating to a constituent of mine was that of Derek Bentley, who was born and brought up in Southwark. He eventually moved to Croydon, where the events occurred that led to his trial, the famous conviction, his death and the intervention of Lord Goddard, the Lord Chief Justice. Derek Bentley was a man of limited intelligence; he was educationally subnormal. One might expect such defendants as Bentley, and others who are vulnerable because of mental illness or educational disability, to be advised to go for a jury trial, because the jury would have a greater breadth of experience and more sympathy. However, that does not necessarily follow; they might be rather dogged in their determination to have a judge-alone trial for reasons that are rather difficult to explain.

It is difficult to see how, with the Bill as currently drafted and particularly without amendment No. 203, judges would be able to refuse applications by single defendants, even though they had some nervousness about the matter, unless other protections were provided. I therefore seek to persuade the Committee that we must strike a delicate balance. That is why I tabled my amendments, and why I am sympathetic to the amendments proposed by the hon. Member for Nottingham, North and those tabled by Conservative Members. We need to proceed carefully, to ensure that we get the balance right if both Houses of Parliament decide to keep that provision in the Bill.

Humfrey Malins (Conservative, Woking)

I should like to speak to amendments Nos. 252, 251, 250 and 235. By way of preliminary comment, I have to say that although the clause excites great emotion among many people, it is as well to recognise that the current law is quite plain: defendants can opt for trial by judge alone in a vast number of cases—and they do, day after day, when they stand in Bow Street court and opt not for jury trial but for judge-alone trial—namely, trial by the district judge. District judges are hearing trials all around London.

The hon. Member for Southwark, North and Bermondsey mentioned the difficulty of inexperienced or brand new judges in the Crown court being asked to take a judge-only trial on their first day as a judge. I agree, but even the most experienced judges, who have been in the Crown court for 10 to years, will have to conduct their first trial at some stage. They might find themselves in the same position. Similarly, it is not uncommon for a High Court judge to go out on the circuit and to be asked to conduct a criminal trial of some magnitude in a Crown court centre, never having appeared in a criminal court before.

Amendment No. 252 deals with the issue that arises in subsection 36(5),

''if two or more defendants are to be tried and any of them opposes the application.''

It seeks to probe what would happen if a judge ordered separate trials for each defendant, as happens occasionally. If two defendants are to be tried together, one must not be pushed into judge-only trial simply because his co-defendant wants it. That is a fair proposition. However, circumstances can arise in which two defendants appear in the dock, on the same indictment, charged with the same offence, and the judge orders them to have separate trials. I need not go into the reasons, nor need the judge. What is the position of each of those defendants in that situation under this clause? It could be argued that if a judge orders separate trials for two defendants who appear at the same time, one could be tried by a judge, and the other by judge and jury. Will the Minister focus on that when he replies?

Amendment No. 251 is a probing amendment that seeks to limit the scope of subsection (6)(a), which is exceptionally wide. It concerns a defendant who holds or has held

''an office or employment concerned with the administration of civil or criminal justice.''

Can the Minister tell us what is encompassed by that phrase? I believe that we should, through the amendment, limit the scope of the subsection so that it includes only those who exercise judicial duties, such as judges, magistrates and even clerks, and perhaps the adjudicators in immigration and other cases. Can the Minister justify the wide scope of the clause? All sorts of people can have been involved in the administration of civil or criminal justice, such as those in a variety of jobs connected with the courts, the probation service, the Prison Service, community service and the like. Can the Minister also refer to the position of those who sit on what might be described as quasi-criminal/civil panels? What about those who sit on the disciplinary panels of the General Medical Council and the Law Society? Those panels have a judicial function and could be said, if one stretched the argument, to have something to do with the administration of civil or criminal justice. I seek to limit that with amendment No. 251.

Amendment No. 250, which deals with the same general issue, refers to the defendant's holding, or having held, an office or employment. That amendment would omit ''or has held'' from subsection (6)(a), and is a probing amendment, as the current wording is terribly wide. The words ''or has held'' give rise to the question, ''When?'' Could such an office or employment have been held 10 or 20 years ago? The employment might have been very brief. What about those who did a fortnight's work experience 25 years ago? I appreciate that issues linked to that matter are dealt with elsewhere in the clause, which puts subsection (6)(a) in context. Nevertheless, it is worth considering whether the Minister intends the words ''holds, or has held'', given considerations of the time limit involved.

Amendment No. 235 is again a probing amendment, and would omit subsection (8). As the hon. Member for Southwark, North and Bermondsey said, subsection (8) is a sweep-up provision. The problem with such provisions is that they tend to cover everything that has not been thought of before. They therefore need a definition. If nothing else applies at all, the judge might be

''satisfied that exceptional circumstances exist which make it necessary in the public interest for the trial to be conducted with a jury.''

That gives the judge the ability, having heard the argument, to say, ''I'm looking at the sweep-up provision, and I'm going to deal with it under that''. We would like to know what the exceptional circumstances might be. The Court of Appeal might lay down some guidelines, and there will be case law on the issue. However, I am not that happy with the concept of its being ''necessary'' for the trial to be conducted with a jury. I find it hard to think of cases in which it would be necessary, which is a strong test, as opposed to, say, desirable or a good idea.

Paul Stinchcombe (Labour, Wellingborough)

I am concerned about the distinction between the words necessary and desirable. As drafted, the clause allows for a judge to be satisfied that exceptional circumstances exist that make it desirable in the public interest for the trial to be conducted with a jury, but none the less obligates him to order that the trial be conducted by himself alone.

Humfrey Malins (Conservative, Woking)

The hon. Gentleman makes a good point, and he speaks with experience, with his career at the Bar.

I shall not stray into the clause stand part debate. However, there are now so many trials by judge alone that the most experienced people whom the provisions will affect will be those many district judges who transfer to the Crown court bench. The principle, which we shall discuss later, seems to be established, and many people opt for that choice.

Hilary Benn (Labour, Leeds Central)

I apologise in advance to the Committee if I respond at some length. In its way, each amendment brings out the principle that lies behind the clause, as well as the detail and the substance. The clause, and others to which we shall come shortly, have attracted great interest in Parliament and elsewhere. Some of that interest has been informed less by their content than by people's perception of what they are about. I was therefore particularly pleased to read what the Home Affairs Committee said about part 7 in general and clause 36 in particular. It said:

''We do not see why a defendant, who is tried on indictment, should not have the option to waive his right to a jury trial, subject to the conditions specified in the Bill''.

We are now debating those conditions. The Committee continued:

''In our view, the proposal offers the potential for a quicker and cheaper form of trial without affecting adversely the defendant's interests. For these reasons, we welcome the proposal to allow a defendant to apply for a trial without a jury.''

We need to take careful note of what the Home Affairs Committee said.

It might assist the Committee to understand the debate on the amendments if I set the clause in context. Like all of us, Sir Robin Auld is clear about the importance of the institution of the jury and about its powerful place in our criminal justice system. As we have all learnt, Governments consider proposals to limit the right to trial by jury at their peril. However, that is no reason to avoid looking at ways of improving the system or at the problems that trial by jury may present in a small number of cases. In saying that, I am anticipating the flow of the clauses to which we shall come.

I hope that I can reassure members of the Committee that the present proposal is not the thin end of the wedge, as some have argued. Jury trial will continue to be the norm for the vast majority of serious cases, if that is what the defendant wants. That is what the clause is about, and it seeks to broaden defendants' options.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Does the Minister have any information showing how frequently defendants elect for judge-only trial once jurisdictions move to introduce such a right? Have the Government considered experimenting with it for a limited period of five or 10 years, rather than moving ahead in one go?

Hilary Benn (Labour, Leeds Central)

I recollect that information is available on the hon. Gentleman's first point, but I do not have any to hand. I will gladly write to him about the experience in other jurisdictions and circulate the information to other members of the Committee. On his second point, I do not see why anyone would want to subject the measure to an experiment if they, like the Government, accepted and felt comfortable with the principle that the defendant should have the right to choose, subject to the restrictions later in the clause. Therefore, I do not think that I would agree with the hon. Gentleman's suggestion.

The clause arises from a recommendation by Sir Robin Auld. The option to dispense with a jury—I nearly anticipated the hon. Gentleman's point—is an established feature of several other common law jurisdictions, including Canada, New Zealand and the United States. The introduction of such an option in this country was widely supported by those who commented on Sir Robin's recommendations, and it is important that the Committee remembers that.

I find it hard to see an argument that quarrels with the principle of allowing a defendant the right to choose. The hon. Member for Beaconsfield—I have gone through six sittings mispronouncing the name of his constituency, and it was only during yesterday's Opposition Supply day that he chose to upbraid me for my incorrect pronunciation—

Dominic Grieve (Conservative, Beaconsfield)

I did not. I believe it was someone else.

Hilary Benn (Labour, Leeds Central)

In that case, I apologise.

Dominic Grieve (Conservative, Beaconsfield)

I certainly did not upbraid the Minister. I would not have been so rude as to do so. In the 19th century the pronunciation appears to have been

variable. Disraeli was undoubtedly the Earl of ''Beeconsfield'' but it is now pronounced ''Bek'', and the etymology shows that it was originally spelled ''Bek''.

Can the Minister comment about other jurisdictions by way of providing a caveat to the right to trial by judge alone of the kind that is included in the Bill? Do they allow for trial by judge alone but deny it under certain circumstances, as is proposed here? It appears that this is a nub point. The Government have extolled the possibilities of the system, but have pulled back, and have therefore introduced an element of doubt into their reasoning. The Committee is entitled to understand why.

Hilary Benn (Labour, Leeds Central)

I do not know the answer to the question about other jurisdictions. If the information is available, I shall gladly write to the hon. Gentleman. I was coming to the point that he made in his opening remarks, during which he coped admirably with his surprise in having to speak so early. He encapsulated the debate in asking the two questions: is it right to allow the choice, and is it right to deny such a choice if it is made? That goes to the heart of a number of the amendments.

The Government see no reason to quarrel with Sir Robin Auld's argument that the principle should be that the defendant should have the right to opt. Therefore, the question is whether there should be any limitation on the option. Being in favour in principle of the right to opt is not inconsistent with the restrictions on that right that are proposed in subsections (6), (7) and (8). Clause 36 sets out the few cases in which it is in the public interest for a jury trial to be ordered, even though that might not be what the defendant wants. In such cases a jury can provide the additional measure of public ventilation of the criminal justice system that, in the limited circumstances in question, is sufficiently important to tilt the balance against the defendant's wishes.

Amendment No. 285 suggests that the defendant should have to give reasons for choosing one method of trial rather than the other. I can see why my hon. Friend the Member for Nottingham, North has tabled it, but I am not persuaded that it would be right for us to place such an obligation on defendants, when that is not required in the case of their current right, which is being retained, to opt for trial by magistrate or by jury. Defendants should be free to opt—that is the purpose of the clause—so their choices do not need to be justified. They could have been made for any of a variety of reasons, some of which have arisen in the course of the debate on both the amendments and the substance of the clause.

It might be, as the hon. Member for Southwark, North and Bermondsey suggested, that the defendant believes that a judge alone trial will be over more quickly. That can be a reasonable consideration. It might be that he has a desire to have a reasoned verdict, which is one of the features of judge alone trial. I am not persuaded, because even if the defendant were required to give reasons, the judge would not be able to take any of them into account. I would also make the point that in clause 39 there is provision for an appeal by either side, so in so far as

issues surrounding this clause are subject to its later provisions, an appeal would provide the opportunity for the arguments to be ventilated publicly.

Graham Allen (Labour, Nottingham North)

The defendant may well opt for a judge only trial because he or she wishes to avoid a jury trial. If someone wishes to avoid a trial by their peers, but others are totally convinced about the need for a jury trial, it should, at least, be incumbent on that person to say in open court why they do not wish to be tried by their peers. The hon. Member for Southwark, North and Bermondsey mentioned sex offenders. Having carefully weighed up the odds, such people might feel that a technical defence before a judge would carry more weight than a trial before their peers. The provision is not intended to deny them that right but merely to ask them to say why they wish to exercise their right to avoid trial by jury.

Hilary Benn (Labour, Leeds Central)

I hear my hon. Friend's argument. To express the reason for their desire to be tried by the magistrates rather than by a jury, for example, is not a requirement that we currently place on those who are charged with either way offences. If it is not required of them, I am not convinced that it should be required in the circumstances that we are discussing. Secondly, what would constitute a reason? A defendant might have a particular preference, having regard to all the circumstances, but there would be no examination of the reason and no one to say that the reason was insufficient. I understand my hon. Friend's point, but I do not think that his suggestion would benefit the process.

Humfrey Malins (Conservative, Woking)

In answer to the point raised by the hon. Member for Nottingham, North, the reality is that, day after day, thousands of defendants in our courts opt for district judge alone trials without having to give any reasons at all. That is common practice. For the purpose of the principle, the difference between the titles ''circuit judge'' and ''district judge'' is irrelevant.

Hilary Benn (Labour, Leeds Central)

The hon. Gentleman is absolutely right. That supports my point.

David Kidney (Labour, Stafford)

Presumably, the rules of court will set out the procedure for making such applications. After all, looking ahead to clause 39, if the judge thinks that subsection (6), (7) or (8) applies and the application must be refused, there will have to be a pre-trial hearing, so presumably, at some stage, there will be some indication that a person is making an application. Although an application might not list the reasons in detail, it will include some information on the basis of which the judge can determine whether he needs to consider whether subsection (6), (7) or (8) applies.

Hilary Benn (Labour, Leeds Central)

I understand my hon. Friend's point, although the clause provides that it will be for the judge to consider whether subsections (6), (7) or (8) apply, having received a simple application from the defendant that he or she wishes to be tried by a judge alone. Clearly, a conversation will take place in those circumstances.

Ian Lucas (Labour, Wrexham)

Can my hon. Friend clarify how the judge would be in receipt of the information

with which to determine whether those subsections apply?

Hilary Benn (Labour, Leeds Central)

There will clearly need to be guidance on the operation of the clauses, and that guidance will need to cover the point raised by my hon. Friend.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Member for Wrexham (Ian Lucas) has picked up an important point, which concerns me, too. I had rather assumed that it was likely to be the prosecutor who would say that he was not happy with the choice, so that the view would first be put to the judge by the Director of Public Prosecutions, the Crown Prosecution Service or other prosecuting service. If that is not the case and the judge must make an independent judgment, he will need to be assisted by documentation or by the history of the case being made available to him. However, the Minister may agree that it is somewhat naive to think that the judge would be making an abstract decision; he will come to that decision under prosecution pressure.

Hilary Benn (Labour, Leeds Central)

As I said in answer to my hon. Friend the Member for Wrexham, that would be clearly covered by the rules of court. The judge at the preparatory hearing will have to decide whether it is appropriate to fetter what would otherwise be the choice of the defendant to opt for a judge alone trial.

Stephen Hesford (Labour, Wirral West)

Is not the point made by my hon. Friend the Member for Stafford (Mr. Kidney) relevant? It would be for the defendant to decide how much information to put before the judge when making the application rather than, as my hon. Friend the Member for Nottingham, North suggested, its being a requirement to tell the court on what basis the request was being made. It would be for the defendant to decide how much information to offer.

Hilary Benn (Labour, Leeds Central)

As I said when answering my hon. Friend the Member for Nottingham, North, there is no obligation on the defendant to provide information on why he wishes to be tried by a judge alone. I draw the Committee's attention to clause 39, which sets out the procedure for dealing with applications relating to clauses 36 to 38.

Humfrey Malins (Conservative, Woking)

The defendant may have the right to apply to a Crown court judge for the trial to be conducted without a jury, but will the Minister answer this specific point? Will an obligation, laid down in rules, be placed on the defendant to declare his preference at the plea and directions hearing, on the first day of the trial or at any other time? What prejudices or bars will exist if he fails to declare at that specific time? Putting it another way, if the application is made on the first day of the trial will it not require an expensive adjournment, lasting weeks, while the prosecution investigate whether there has been a link with the man's past and with certain employments?

Graham Allen (Labour, Nottingham North)

I am certainly not going to press the amendment to a Division, but I wonder whether, if the Minister feels that some helpful points were made this morning, he would consider bringing something back on Report that accommodated some of those matters?

Hilary Benn (Labour, Leeds Central)

I feel a letter coming on. I shall try to answer the first of those points. It would clearly need to be included in the rules of court that the defendant should indicate his choice as early as possible in the process. It would be ridiculous to leave it until a later stage or until a jury trial had been organised. A common-sense approach suggests that the rules of court would need to cover that.

Dominic Grieve (Conservative, Beaconsfield)

This is an important point, because the Minister may have missed the extent to which judges have reputations, especially in the Crown court. A defendant's decision whether to opt for trial by jury or for trial by judge alone may be dictated by his desire for some knowledge of which judge will be trying the case. For that reason, he will not wish to make a decision until the last possible moment.

Hilary Benn (Labour, Leeds Central)

It will not be the case that the defendant can wait to see who will try the case and then say, ''Oh, if it is going to be Mr. Justice So-and-so, I do not fancy that.''

Amendment No. 202 would change ''must'' to ''may''. I do not agree with that, because as the purpose of the clause is to give defendants a choice, the Government's view is that circumstances in which that choice will not be respected should be very clearly set out, and the Government have done that in subsections (6), (7) and (8). To give the court such wide discretion would not be right.

Amendment No. 203 would ensure that when making an order that a trial be heard without a jury, a judge must be satisfied that it will not compromise the defendant's right to a fair trial. The answer to that point was made extremely cogently by the hon. Member for Woking (Mr. Malins). I do not accept, and neither do the Government, that there is a lack of equivalence in terms of the legal entitlement to fairness under article 6 of the European convention on human rights between trial by jury and trial by judge alone. He pointed out that every day many trials take place before a judge alone, and it cannot be right—nor is it the case—that those trials are less fair than those heard before a jury. In relation to article 6 of the convention, I should point out that in several jurisdictions there is no trial by jury in the form in which we operate it. The amendment is quite unnecessary.

Amendments Nos. 232, 233, 234 and 235, as their originators acknowledge, probe the meaning of subsections (6), (7) and (8) and express the view that there may be exceptional cases in which the defendant's wish to have a trial by judge alone should not prevail. The principle underlining this policy is that in these cases there is a public interest in the greater public ventilation that a jury trial would provide. This principle is expressed in the variety of arrangements in other common-law jurisdictions that give defendants the option of dispensing with the jury, subject to certain exceptions.

I hope that it will help the Committee if I briefly summarise the intent of subsections (6), (7) and (8), all of which are subject to an exceptional circumstances test. It is important that we bear that in mind. Subsections (6) and (7) concern cases that might be

characterised as having particular significance for the administration of justice; for example, serious cases of perverting the course of justice. Subsection (6) makes it clear that we have in mind cases in which the defendant who makes an application to be tried without a jury is, or was—and that is deliberate—in employment connected with the administration of civil or criminal justice; for example, a judge, a prosecutor or a police officer.

In relation to amendments Nos. 251, 250 and 236, the offences with which the defendant may be charged may or may not be related to his job, but they must raise serious doubts about his fitness for employment. Committee members have referred to subsection (8) as a catch-all provision.

The circumstances envisaged in subsections (6), (7) and (8) have in common the notion that there is a balance to be struck between the private interests of the defendant to have his or her trial heard without a jury, if that is what he or she wants, and such public interest as there may be from time to time in having trial by jury. I have acknowledged that the defendant may have perfectly understandable reasons for wanting to have a judge alone trial, but there are certain sorts of cases, with the characteristics described in subsections (6), (7) and (8), that the Government adjudge are more appropriately heard with a jury. That is not because jury trial would be fairer, as I explained, but because it would bring a greater measure of external ventilation to the process.

Paul Stinchcombe (Labour, Wellingborough)

Will the Minister explain the reasons for using the word ''necessary'' rather than ''desirable'' in subsection (8)? It seems that the accused's desire for trial by judge would prevail even if the judge decided that it would be desirable in the public interest for the trial to be conducted with a jury.

Hilary Benn (Labour, Leeds Central)

If my hon. Friend will bear with me, I shall come to that in a moment.

Subsections (6) and (7) focus on cases whose significance lies in their relevance to the administration of justice, because of the defendant's position in the justice system or because the offence bears on the system. We strongly believe that jury trial has added value in such cases, as it avoids any possible suggestion that the criminal justice system is trying its own in a closed, private fashion. The hon. Member for Beaconsfield touched on that.

Subsections (6) and (7) need not specify in detail what a judge must consider in deciding whether exceptional circumstances exist, but he or she might be expected to consider issues such as the seriousness of the offence charged and the seniority of the defendant's post in the administration of civil or criminal justice.

We recognise, however, that subsections (6) and (7) may not completely exhaust the circumstances in which the public interest should override the defendant's views on the mode of trial. Subsection (8) therefore provides for the judge to have discretion to refuse a defendant's request, where he or she considers that exceptional circumstances make it necessary to do so in the public interest. My hon. Friend the Member for Wellingborough

(Mr. Stinchcombe) was right to draw attention to the contrast between the test of desirability in subsections (6) and (7) and that of necessity in subsection (8). The hon. Member for Southwark, North and Bermondsey seemed to make a case for the provision, although it is not a catch-all—it tidies up the process.

The application of subsection (8) will be subject to an extremely high test, and cases will be very rare. We have deliberately not sought to limit its application by specifying particular types of offence, although it might come into play in a trial involving exceptionally serious charges. The key point, however, is that its application will be subject to the higher test of necessity.

Dominic Grieve (Conservative, Beaconsfield)

I apologise to the Minister. I have had to do some browsing, but I think that I follow him. Do his words not negate the whole thrust of the clause? Leaving aside cases involving those who administer justice, there are crimes that he feels are so serious that jury trial is essential. How is that exception to the argument that people should have a choice justified? How is the philosophical or practical distinction made? It worries me that we may have a process that gives with one hand and takes away with the other. If the Government are confident that trial by judge alone is such a correct alternative, why do they not have the courage of their convictions and stick to their guns? Why do they not remove all exceptions, apart, obviously, from that in subsection (5), which applies where a co-defendant objects?

Hilary Benn (Labour, Leeds Central)

I hear the hon. Gentleman's point, but I do not agree. The application of subsection (8) is subject to an extremely high test and the Government think that sensible, whether that convinces him or not. Clause 36 is intended to give the defendant a choice, but that choice should be subject to the tests set out in subsections (6), (7) and (8). The exceptional circumstances set out in subsection (8) may make it necessary in the public interest. That is the test for a trial to be conducted with a jury, and the judge has to make that judgment, subject to appeal. I come to co-defendants—

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Can the Minister give us two or three examples of circumstances in which he thinks that the necessary test will be met? He must have discussed the matter with advisers and others. Why do the Government not propose to emulate the law in countries that have accepted judge only trial but limit it to all but the most serious cases?

Hilary Benn (Labour, Leeds Central)

Because, having had those discussions, we have concluded that it would not be sensible to attempt to codify the law in that way. I gave the example of charges of exceptional seriousness. The other reason why we have not made such a proposal is that we feel that it is a decision for the judge to make, subject to the appeal provisions of clause 39.

Vera Baird (Labour, Redcar)

Will my hon. Friend give way?

Hilary Benn (Labour, Leeds Central)

I want to make progress, and am conscious that I am taking up a lot of time and we have other clauses to consider.

Humfrey Malins (Conservative, Woking)

We have all day.

Hilary Benn (Labour, Leeds Central)

Amendment No. 252 concerns co-defendants. The hon. Members for Beaconsfield and for Woking sought to clarify the operation of subsection (5). I hope that I can help both of them. Where the judge has ordered separate trials for defendants who were originally to be tried together, each of those defendants should have the option to elect or to refuse juryless trial regardless of the other's wishes. The hon. Member for Woking was right in his understanding that it would be a sensible way in which to proceed. That is what we intend to do.

Amendments Nos. 251, 250 and 236 would limit the scope of subsection (6) to people currently holding employment that involves the exercise of judicial duties. The idea behind the subsection is that particular public interest considerations apply. It is a protection against any appearance that the system may be trying itself. The subsection would involve people in the criminal justice system such as police officers and prosecutors, so it would not be logical to limit its application to magistrates and judges. Neither, although I understand the argument put by the hon. Member for Woking, would it be sensible to limit it to those who are currently so employed; there might be a case that involved somebody who had been retired for a matter of weeks. The problem of the system appearing to try itself might be a consideration, although that would be for the judge to determine in all cases—subject to the guidance that will be issued—and it would have to give rise to exceptional circumstances that made it desirable. It would not apply to someone who worked in a small capacity many years earlier. Amendment No. 295 is consequential, and I think that I have dealt with it in my previous arguments.

I apologise for the length of my reply, but a lot of issues have been raised and I hope that I have covered not only the principle of the amendments but the substance of the clause.

Humfrey Malins (Conservative, Woking)

I shall be brief. The question of the stage at which the defendant should make an application for trial by judge alone has been raised. Can that be allowed on the first day of the trial, which would result in huge expense? I have had an idea that that might be got round by an instruction to magistrates and district judges that upon any committal or transfer of a case from the magistrates court to the Crown court, a form of words must be used by the magistrate or district judge to the effect that if the defendant wishes to opt for trial by judge alone, such application must be made at the plea and directions hearing, and no later; otherwise, it will not be entertained. That may help the Minister.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister for his detailed response to the various amendments. At this stage of our consideration of the clause, the key issue that has emerged may be the question whether that right should be unfettered or fettered.

On one hand, the Select Committee broadly welcomed the idea that people should be able to apply for and get trial by judge alone because it is their right. It said nothing to suggest that that right was to

be fettered, except when considering any co-defendant's rights. On the other hand, from the Minister and the Government we have a much more complicated clause, which gives the right but sets out circumstances in which that right may be denied. That almost causes me more concern than the principle of the clause itself. A complex and hybrid system will be set up that will question and challenge the right to a judge-only trial. The defendant, as is his entitlement under our law, should be able to choose a judge-alone trial if his co-defendant does not object. Instead, there will be constant bickering and press comment on the circumstances in which a prosecutor—because that is the person who will act on behalf of the state—will argue that the right should be denied for public policy reasons. That brings into clear and immediate conflict the individual's right to choose against the public's right to perceive that justice should be done.

Without betraying too many secrets, I discussed the matter with Lord Falconer when I discovered that the Bill would include exceptions. His reputation as a civil lawyer has been savaged. I explained to him that, in a funny way, although I had anxieties about giving this right in the first place I found that to include exceptions made the whole matter worse. The expression that he used, which I think I can repeat in Committee if not in the Chamber, was that he found my argument ''anal''. I disagree. My argument may be anal, but I shall continue to put forward such arguments.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Are you sure that it was not ''banal''?

Humfrey Malins (Conservative, Woking)

Able.

Dominic Grieve (Conservative, Beaconsfield)

It was not ''able''. It was not an able argument.

All that I can say to the Minister is that the issue is really important. With your leave, Mr. Cran, I wish the Committee to have an opportunity to decide whether the exceptions, which give the state the power to deny the right to choose that clause 36 gives, should be included. Other amendments would be needed, but amendment No. 232 would be the significant amendment to enable that to happen.

Vera Baird (Labour, Redcar)

My point arises from that which the hon. Member for Woking has just made about the timing for the selection. If the right cannot be withdrawn, except within the terms of subsections (6), (7) and (8), whatever rules of court say, would it be possible to deny the exercise of that right up until the last minute? I suspect that it would not be. Rules of court cannot buy the exercise of the section in the statute. Consequently, one will get what the hon. Member for Beaconsfield foreshadowed. Someone who knows the bench will wait until the judge is appointed before he decides whether he wants a judge-only trial. I would do exactly that in the same situation, although it will prove unavoidable and expensive.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the hon. and learned Lady. That is exactly what would happen. Indeed, if I was taking a client through the criminal justice process and wished to protect his interests as much as possible, that is exactly what I would do to keep the margin for

manoeuvre as open as possible. It would be my duty to do so. When appearing before certain judges, I would say, ''We have a nice, rather weak-minded judge''—

Humfrey Malins (Conservative, Woking)

Like me.

Dominic Grieve (Conservative, Beaconsfield)

I would not dream of saying that about my hon. Friend. I would say either, ''We have a rather weak-minded judge'' or ''We have someone quite horrible, and you had better opt for jury trial.''

I must tell the hon. and learned Lady that that goes to the principle of the clause. However, if I had a hierarchy of preference it would be that if the Government really wished to embark on that course of action, the exceptions, especially the obvious one of the co-defendant's rights, should not be included. The Government should have the courage of their convictions. I shall therefore seek to press amendment No. 232 to a Division, because it is an improvement. However, I reserve my position, because important issues need to be raised on clause stand part, and I shall seek to divide the Committee on that too.

Ian Lucas (Labour, Wrexham)

Could the hon. Gentleman help me with one point? How would he distinguish between the prosecution's role in denying jury trial to a defendant in mode of trial proceedings by making submissions to the court, and the present circumstance? Is there a major difference of principle between those two scenarios?

Dominic Grieve (Conservative, Beaconsfield)

As matters stand, the defendant in an either-way offence has the unfettered right to go for jury trial. I always assumed that the background principle for that right was that if the defendant wished to contest the issue it was a preferable course for him to adopt, although as my hon. Friend the Member for Woking said he could opt for trial before the magistrate. However, even if the prosecution argue that the matter should go for jury trial, it is still ultimately a matter for judicial discretion by the magistrates.

In some circumstances, people may be happy enough to have the matter tried by the magistrates but the prosecution will say that it is serious enough to go the Crown court. It will then be up to the tribunal to decide. It has always been thought that the option of going for trial at the Crown court has given the individual extra protection, so I have rarely had people complain that they have been forced against their will to go to the Crown court. In my experience, they usually want to stay in the magistrates courts so that they can plead guilty. I accept that there may be exceptions, but that has been my professional experience. That is rather different from what we find in the Bill.

I do not want to take up more of the Committee's time. With your leave, Mr. Cran, I hope that we can put amendment No. 232 to a vote.

Graham Allen (Labour, Nottingham North)

The hon. Member for Beaconsfield has indicated why the public need protection—if only from the lawyers—so that a defendant would have publicly to state why he wanted a judge-only trial. A number of other hon. Members who are lawyers were honest enough to say the same—that the debate is more about

their dealings with defendants than it is to do with the people for whom parliamentarians pass such legislation. Frankly, that has been a recurring theme throughout our proceedings. Unfortunately, one can almost see a number of colleagues making representations with a client at their side rather than a constituent.

Having said that—I am sure that we shall get a lot more of it—my hon. Friend the Minister said that he could feel a letter coming on. I take that as an undertaking that a letter will be sent. He generously gave an undertaking that he would think further about the important points raised by all members of the Committee, and I hope that he will consider whether it is necessary to produce something on Report. I hope, too, that the hon. Member for Beaconsfield will not press his amendment to a Division. He will not get anywhere by doing that. I hope that he will try to achieve a consensus with the Government by trying to make sense of the clause for everyone. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 232, in

clause 36, page 23, line 32, leave out '(6), (7) or (8)'.—[Mr. Grieve.]

Question put, That the amendment be made:—

The Committee divided: Ayes 3, Noes 14.

Dominic Grieve (Conservative, Beaconsfield)

The Committee, although I welcome its decision, has decisively rejected the possibility of giving the right to trial by judge alone, free of the Government's exceptions. Therefore, we now must consider the principle of the clause. I do not wish to take up the Committee's time, but two matters stick in my mind forcefully. We have a justice system that has always given the right to trial by jury in either-way offences, which are those that are more serious. Our justice system has also sent for trial by jury those offences that are regarded as serious. There are good reasons for that. Anyone who has practised in the criminal court and has seen the process involved in a Crown court trial derives reassurance from the fact that decisions taken by 12 jurors drawn from the community are difficult to impugn, provided—and this sometimes does not happen—the proper facts and evidence are placed before them.

In my experience, miscarriages of justice are rarely the jurors' fault, but that of the prosecution or false

witnesses, or whoever, who come along and present the jurors with an inaccurate or wrong set of facts.

Trial by jury has very desirable social consequences. It is not seen as an adversarial system between the state, through its judicial representatives, and the defendant, but one in which members drawn from the community give the verdict. The matter is difficult to gainsay once it has been done. It therefore provides great reassurance in the way that the justice system operates. It can, very occasionally, lead to some curious decisions—that does not really apply in this instance—where the jury, for reasons that I often find thoroughly proper, sometimes goes against evidence, in favour of defendants. However, I have rarely seen the decision go the other way. I cannot think of a single occasion during my professional practice in which I have considered a jury to have wrongly convicted a defendant.

Trial by jury is, therefore, an enormously important part of our national life. One only has to consider the number of people who do jury service in any year to see how important participation in the criminal justice system is in terms of maintaining confidence in justice and belief in its fairness and integrity.

The clause drives a very big cart through that principle, and it does so for very muddled reasons. I find it difficult to understand the justification for doing it. What troubles me is that the people who will avail themselves of that protection will do so because it suits them, if the verdict goes against them, to say that it was the verdict of the judge on a technical matter, and to use that as a way out of their own responsibility.

There is a big difference between being found guilty by an individual appointed by the state and being found guilty by a group from the community, which has considered the evidence. The message is different and the Minister clearly accepts that, going by the exceptions that the Government have included in the clause. Those exceptions are compelling in raising my anxieties and objections to the clause in its totality. I am, therefore, unconvinced. We have heard nothing about financial arguments or issues, so I take it that that is not a major consideration—

Hilary Benn (Labour, Leeds Central)

It is not a consideration at all.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to hear from the Minister that it is not a consideration at all. We have heard nothing about speeding the administration of justice, so that is not a consideration. So we have a strange, hybrid right that will appeal to those who feel that the offences that they have committed, or have been found to have committed, are such that they want to speed their rehabilitation with right-thinking people as quickly as possible by arguing that it was a judge, and no one else, who found them guilty. It will also be favoured by those who wish to appeal, or believe that they can, to the views or prejudices of the judge, as the hon. and learned Member for Redcar (Vera Baird) pointed out. People know about judges' views and prejudices, and they are likely to try to exploit them for their own benefit.

Stephen Hesford (Labour, Wirral West)

The hon. Gentleman says that we have heard nothing about speed of process. In his experience, do people sometimes opt for a magistrates court trial, contrary to legal advice, because they will get a speedier trial there and they want to get through the process faster than they would by going through the rigmarole of a Crown court trial? A defendant who opts for the process might think that he will have a quicker trial, so we have heard about the speed of trial process; it is one thing that a defendant might want to take into account.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman makes an interesting point. The situation varies from time to time, but it is normally easier to get a magistrates court trial, especially for a short matter—something that would take half a day to a day—in front of a stipendiary magistrate, than to go to the Crown court, so that might be a consideration. However, once someone has decided to go to the Crown court, or been sent there, there is no reason to suppose that the pre-trial procedure will be any different in length whether he is being tried by a judge alone or by judge and jury. The only issue is whether the trial might be faster in front of a judge alone, and I accept that there might be marginal time savings in that respect.

The point is that consideration is not, apparently, what motivated the Government to offer the right. What appears to have motivated them is the view that either system is, from their point of view of supervising the administration of justice, equally satisfactory. That does not persuade me—the exceptions that are placed within that right have most affected my opinion on that matter. For those reasons, I am unable to offer my support. I cannot see the benefits, although I can see an endless series of downsides that result from moving the jury out of the picture for serious offences, in terms of the quality and fairness of justice.

I also think that there will be endless public and press comment about the decisions that judges take in deciding whether the rights should be granted or withheld. For every case in which, as the Minister says, the public will be reassured because the right will be withheld, there are bound to be cases in which the judge decides, if he is acting fairly, that the rights should be granted. There will then be copy in all the tabloid newspapers that reads, ''So-and-so has chosen trial by judge alone. Despite representations by the prosecutor to the contrary, judge so-and-so was quite happy to allow this to happen. This is a serious case. It involves child molestation''—or something else very unpleasant—''and concerns a notable personality, but may not be in the gravest catalogue of offences.'' The entire system of justice will be brought into disrepute in the process.

I appreciate the motives behind the clause. However, I tell the Minister that I am wholly unconvinced, and that I shall vote against it.

John Mann (Labour, Bassetlaw)

I have two reservations on the principle of the clause. I consider every clause in the Bill by asking what it does for my constituents who are hassled by criminal elements or blighted by theft, and I think that the principle of common sense is quite appropriate. I am still waiting to hear what the clause will do for those people.

My first reservation is that I know of a number of cases—from experience and from reading elsewhere—of attempts by people to use their membership of the freemasons to influence events in court. By dint of its being a secret society, the only attempts that would come to light would be unsuccessful ones. Some commentators who have looked at the issue would suggest that freemasonry has an undue influence in the legal profession. Incidents have been relayed to me directly whereby people have gone to court and indicated clearly their membership of a lodge, in order, one assumes, to influence someone. I am aware of those incidents because the attempts were rebuffed. However, if people feel that they can go to court and do such things, either they are highly misguided or there may on occasion be some truth to the claims that I have mentioned.

My second reservation is about an issue that the Minister knows well—he and I have discussed it on a number of occasions—which is the trial of the Leeds United footballers. The club is situated in his constituency. The jury found a Mr. Lee Bowyer not guilty, but I am delighted that Mr. Ridsdale, the chairman of the club, both fined Mr. Bowyer at the time and has now released him, recapturing the legal costs in so doing. I think that those acts were quite appropriate.

Mr. Bowyer was found not guilty, so clearly he is not guilty. If he had elected, before a white judge, trial without jury in front of another white judge, and was found not guilty, so that the cause of justice was served in exactly the same way, there would still have been a problem with justice being seen to be done.

In questions relating to race—an allegation that underpinned that trial very publicly, both in the city of Leeds and nationally—justice being seen to be done is in some ways as important as justice being done. In such a case, justice is more likely to be seen to be done in a trial by jury, with 12 good people and true from a range of backgrounds, than if a white man goes to a white judge and asks for a trial under another white judge who would reach the same conclusions. That important dynamic needs to be considered. I know that my hon. Friend the Minister is aware of the case, as well as its implications.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The hon. Gentleman makes an extremely important point. The Bowyer-Woodgate case was a high-profile case and clearly one in which issues of race and racial attack were central. The reality is that, in most urban areas in England—and certainly in big trials in Cardiff, and to a lesser extent Newport and Swansea—a jury will include at least some members of minority communities. By definition, a jury is a more representative decision-making body than a single judge, because we can hardly claim to have a representative judiciary in terms of either gender or ethnic background, even on the basis of simplistic quotas. It is really important that juries are seen to be representative. However good a job judges do, they are not yet in that category, because if one person from one background, a woman or a man, judges a trial, that provides an additional reason for thinking that justice has not been done.

Ian Lucas (Labour, Wrexham)

I want to pick up the valid point made by my hon. Friend the Member for Bassetlaw (John Mann). Does the hon. Gentleman agree that subsection (8), which covers the situation when

''the judge is satisfied that exceptional circumstances exist, which make it necessary in the public interest for the trial to be conducted with a jury'',

would certainly apply in a case such as the Bowyer-Woodgate case? No doubt, guidelines will be put in place in due course to make that clear.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The answer is, who knows? We cannot know that that will be the case because the Minister said that it had not been thought necessary to explain the provision and there has been no discussion of guidelines to be approved by Parliament. Guidelines might be issued by the Lord Chief Justice, although they sometimes run into difficulty, as we saw recently. I would far rather trust the more representative jury of 12, and I shall set out the reasons why I share with the hon. Member for Beaconsfield and others the view that we would be unwise to go down the road proposed by the Government.

Paul Stinchcombe (Labour, Wellingborough)

Do not trials such as the Bowyer-Woodgate trial make it clear that there should be exceptions to the right to demand a trial by judge alone? Does not that mean that the issue of principle now is whether we should give the accused that right to seek trial by judge alone? As a Liberal, does the hon. Gentleman believe that the accused should have that right?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I do not think that being a Liberal affects the decision terribly.

Paul Stinchcombe (Labour, Wellingborough)

The right to choose.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I shall come back to that. On the earlier issue, the difficulty is that people would be even more critical of judges if they said no to an application by a white defendant and yes to one by a black defendant. I can see all sorts of reasons why judges would run into difficulty personally; and they would pilloried as a judge who favoured the black or the Asian community. I shall argue my case, but I think that we are going down a dangerous road.

Dominic Grieve (Conservative, Beaconsfield)

Is not the other point that it is also grossly unfair to Mr. Bowyer? Why, because he is a celeb, should he be forced to go through trial by jury even though he wants a trial by judge alone, when for an identical offence committed in the same location, two unknowns would be able get trial by judge alone without any difficulty?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Exactly. The more one looks at the argument, the more difficulties arise.

I am absolutely clear that the choice would be made only if we went down the road hinted at by the hon. and learned Lady, and it would be made only at the last minute. As for the point made by the hon. Member for Nottingham, North, it is not a matter of looking after the client—like everyone else, the defendant is a member of the community, and the advocate for the defendant will give them the best advice. We cannot take away the right to make the choice, but it often cannot be made until the very last

minute. It would be quite wrong and open to all sorts of argument to do otherwise; it would involve further hearings and would raise human rights issues concerning whether the choice could be exercised only by a certain time or a certain date and in a certain way.

The reality is hugely affected by who the judge will be, just as people's decision on whether to plead guilty or whether to appear in the higher or lower court depends on who the magistrate or district judge is. Those real factors come into play every day of the week, and people in Tower Bridge magistrates court decide whether to be tried there or somewhere else depending on their view of the person who regularly sits there as magistrate.

Vera Baird (Labour, Redcar)

I am thinking further along the lines helpfully suggested by my hon. Friend the Member for Bassetlaw and followed by others. We seem slightly to be neglecting the rights of victims. A white defendant will inevitably want to exercise his right to be tried by a white judge—there are only two black judges—whereas the main witness, the victim of the crime, is black and will want an open assessment to be made of his credibility to set against the defendant's, so he will want the case to be judged by a cross-section of the community and not by an upper-middle-class white person.

I obviously bore the Committee by walking into the Room and talking constantly about rape, but one can see easily how the problem is at its highest in such cases. Rape cases raise thorny difficulties about credibility. For instance, if the complainant was a black person and the defendant a white person who, without any of these provisions applying, had elected to go for a non-jury trial, we can see that the mischief would be at its height. I wonder where victims rights are in all this.

James Cran (Conservative, Beverley and Holderness)

Order. To help the Committee, I have noticed that interventions are becoming longer and longer and I would remind hon. Members that interventions should be short and sweet.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Victims' rights are on the list of issues that I wanted to raise. One of the things that I have argued for—I have lost the argument against lawyers, I have to say, in a different context—is that at the end of a trial but before sentencing, the victim, if he wishes to do so—or if, tragically, the victim is not alive, someone who can speak on his behalf—should be able to put a case to the court in person, just as the defendant can effectively put his case to the court. What we do now has always seemed to me a terrible imbalance. It is frustrating to be with families of victims watching a trial from the public gallery, as they feel entirely excluded from the process. Witness impact statements do not go quite far enough, so I share the hon. and learned Lady's view. On my list is the fact that we are going down a road that appears to give greater additional rights to the defendant than we do to witnesses for the prosecution and victims.

In the previous debate, for reasons with which I am entirely happy, we did not have the opportunity to

vote on clause 36(3) because I did not press my amendment on fair trial criteria. We are now dealing with issues of substance, and I wish to explain why the key reasons for going down that road leave me entirely unpersuaded.

Jury trial is incredibly popular and well respected; it is more respected than any trial by judge will ever be. Judgment by lawyer will never be as popular as judgment by lay citizens. There are complex reasons for people opting to have judgment without jury in the lower courts; one is that they are the less serious cases. By definition, they must be, otherwise they would be in the higher courts.

In many cases it is ordinary people who sit on the Bench. Of course there are district judges, but my perception is, although I do not have statistics to bear it out, that people will more readily choose the lower court over the higher court if there is a lay Bench than if there is a district judge—a full-time stipendiary. They do so because they think that the case-hardened judge is less likely to be sympathetic than representatives drawn from the local community. There will always be more than one, as the lay magistrates always sit with a minimum of two and normally with three.

We should enhance what works, and jury trial works extremely well. It works because it is one of the ways in which the ordinary citizen shares in the process of justice. The hon. Member for Nottingham, North and others keep saying that we are losing contact with what ordinary people want and need. We must be careful to have maximum lay participation in the criminal justice process. There are only two ways in which we can do that: one is to have jury trial as often as possible—real people deciding cases—and the other is to have more lay magistrates.

Interestingly—I do not attribute it directly to the Government—under the 18 years of Conservative government, the number of lay magistrates increased, while in the past five years it has fallen. I do not understand why, and I am very unhappy with it. I hope that it is a trend that we can reverse, as we need more lay magistrates, not fewer.

Juries have a breadth of experience, as the hon. Member for Bassetlaw said, that judges simply do not have. Jurists come from 12 different walks of life—they come from different backgrounds—whereas the judiciary just ain't like that. A judge is less likely to gain such a breadth of experience the longer he spends in a narrow circle of people.

Juries sometimes come to judgments that might technically in law be unexpected—the Ponting case comes to mind. The jury decided that the prosecution was nonsense, so they acquitted. The jury are a safeguard against the law's getting into a stupid position: they come to a common-sense view by argument. There is no evidence that people do not think that jury trial is a very important principle, so moving away from it has risks.

Paul Stinchcombe (Labour, Wellingborough)

I am struggling with the philosophy behind the arguments. As a Liberal, the hon. Gentleman normally believes in the freedom to choose. Surely, even if the Bill were passed

unamended, Ponting would still have had the right to trial by jury and would still have been acquitted.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Of course he would. Let me explain why a Liberal is arguing that a defendant should not have the choice: it will undermine the criminal justice system to have two types of justice in the higher courts. It will be perceived as a two-tier system. There will be a jury trial system, which will give one level of credibility to verdicts, and a lesser—and less credible—system in which people opt for a judge only trial. It will do a fundamental disservice to the criminal justice system. That is why it is in no one's interests and why we should not have the choice—the jury system is better. Why opt for a less good and less authoritative system when we already have a good one?

I share with the hon. Member for Beaconsfield a strong belief that if a judge makes a decision, criticism of judges will increase. Judges are already criticised for the sentences that they impose, but this will open them to criticism for their decisions. Judges who become known for acquitting often will gain reputations that are unhelpful in that regard and those whose verdicts are decided on the facts and are overturned on appeal will be undermined in a way in which they are not undermined if there is only a variation in the sentence. The situation is different from that in civil cases, in which matters of negligence or suchlike are decided. This is about whether somebody is guilty or innocent. If the Court of Appeal says, as it will do periodically, that a judge got it wrong, the criminal justice system will be seriously unsettled.

Some judges come to their jobs having been prosecutors. Inevitably, some will arrive having only ever done prosecutions, and others having only ever done defence work. Judges come with reputations that juries do not have. However much they try, they will not be able to overcome the fact that they have been known as the hammer of the Bailey or whatever, because that will be what they have done for 20 years; a jury is not like that.

We know that judges are appointed to conduct particular, serious cases—sometimes they are senior judges, sometimes High Court judges. If the decision as to guilt or innocence is taken by a judge, there might be a suspicion that a particular judge has been chosen for a particular case to get a particular verdict. That cannot be helpful.

Mark Simmonds (Conservative, Boston and Skegness)

Has the hon. Gentleman thought through the point that there might be a perception in the public mind that the separation of the powers between the executive and the judiciary might be undermined for that very reason?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

That is right. The fact that judges are appointed by the state, and the Lord Chancellor is a member of the Cabinet, so it is a party political appointment—some of us argue that that should not be the case—muddies the waters. It is important to keep the law and order process, both police and courts, separate from any perception of politics, so I share the hon. Gentleman's concern.

Stephen Hesford (Labour, Wirral West)

Can the hon. Gentleman name one High Court judge, currently sitting, who he thinks would fall into the trap that he has described?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Even if I could, I will not, because that would be extremely unfair. There have been judges with reputations for being exceptionally tough. I remember having given evidence of character on behalf of constituents at one of my local Crown courts, where the fact that it has been judge X rather than judge Y has been highly determinative. People used to make choices according to who was the resident judge and who was on duty on a particular day. While I am not going to name names, I can think clearly of judges known to be pro-prosecution and tough, and of others who have a reputation for being in favour of the defendant. If they are considering a sentencing matter, that is one thing, but if such a person, alone, is to make a decision, we are into a different ball game.

There are cases in which the defendant and others might want to make inquiries about the background of a judge before they made a decision. That will open up the prospect of judges' personal and professional lives, and their financial dealings, having to be in the public domain. That is not good for them and it is not good for the system.

I shall cite one or two more cases. Imagine that the defendant was a former senior civil servant or a former or current Member of Parliament, or a former judge or senior public official, who sought trial by judge alone. If the judge acceded to that request and the trial resulted in an acquittal, that could be perceived as the establishment looking after its own. It is a very dangerous route to take and would lead to a large number of appeals.

We should remember the experience in Northern Ireland. Of course, the context is different, and we understand why the Diplock courts came into being, but they caused real antagonism in the community. In those circumstances, trial by judge alone was necessary for security reasons, but they have never commanded the same public confidence as jury trials. No one ever wanted that system to continue and people have always been struggling to get back to a system of trial by jury. As the hon. Member for North Down will know from her experience both before and after she came to the House, the confidence of the whole community, across the denominational faith divides, lies in trial by jury.

The imbalance in the interests of victims and defendants should properly be taken into account. Although, in a simplistic sense, it might be fair to give the defendant the right to appeal, we know in which sort of cases defendants will choose trial by judge alone. They will be high-profile cases, in which jury trial would be embarrassing, so they will be cases in which judges will be put, most spectacularly, in the dock of public opinion, because they will be sex offences and the like.

I note that in other jurisdictions, such as New Zealand and Australia, where the law has been changed to allow the same choice, the law also includes qualifications of a type that we have not discussed. The most serious cases—those for offences with a higher tariff, punishable by a certain number of years' imprisonment—do not qualify for the choice. I would not buy that anyway, but I urge colleagues to be extremely cautious about moving to a system that

sounds as if it will deal with cases more efficiently, shorten some trials and be popular with some defendants, but will in fact produce a two-tier justice system, in which good decisions are thought to be made by juries and decisions that are much more readily questioned are made by a judge alone. However competent judges are, such a process is not fair to them. More importantly, it will undermine the whole system. Lay participation in the justice system is central, and not something that defendants would be wise to alter or that they should be given the opportunity to alter, especially in the higher courts.

Paul Stinchcombe (Labour, Wellingborough)

I do not share hon. Members' objections to the principle or philosophy of the clause. It is right that we already have trials by jury and trials by judge alone, in both criminal and civil jurisdictions, and that we already give many accused people the right to choose trial by judge alone. For all the reasons set out in the preliminary reports that resulted in the clause, it seems correct that that right should be extended. If that happens, it is essential that there should be exceptions, fettering the right in the interests of justice or some other public interest. We have debated that in the context of one sort of case, in which race, rather than celebrity, is the determining factor.

However, the clause gives rise to practical concerns, for which reason I join in the request of my hon. Friend the Member for Nottingham, North for the Minister to think again about at least some of the clause and come back to us with further reassurance, either by letter or on Report. I am especially concerned about the use of the word ''necessary'' rather than the word ''desirable'' in subsection (8), which will have certain consequences. An accused might make an application for trial by judge alone in a case that involves race, an extremely serious offence, or religious prejudice, but the judge might be of the opinion that in the interests of justice it is clearly desirable that the trial should be conducted with a jury. Notwithstanding the fact that the judge comes to that conclusion, he would be prevented by clause 36 from ordering trial by jury. That gives rise to some concern.

I believe that a critical practical issue on timing is involved, which I believe would have to be dealt with by the Bill. The reality is that any lawyer will be mindful of which judge is to hear the case before he advises his client whether to exercise the right. Although I share the concerns expressed by my hon. Friend the Member for Nottingham, North, I accept that. If we are not aware of the reality when framing legislation, we will pave the way for miscarriages of justice and all sorts of delays and expense. We should be mindful of that reality and try to legislate to prevent the harm and mischief that could arise.

Humfrey Malins (Conservative, Woking)

The clause has excited a great number of people, and principled arguments have been made by both camps. On one hand, the Metropolitan police

support the principle of the clause; on the other, a respected group such as Justice takes a very different view.

The General Council of the Bar and the Criminal Bar Association have considered the clause carefully. I was struck by what they said about the defendant's ability to choose trial by judge alone. They feel that it is an area of high principle, but I shall not go into detail, save for one item. They state:

''We also acknowledge our profound anxiety that if this proposal is implemented, at some later date it may not seem such a great variation to relocate the right to elect for trial by the judge along from the defendant to the judge. This suggested change would undoubtedly pave the way for a future Home Secretary to remove the 'right' to jury trial entirely, leaving it at most as a form of trial that is within the discretion of the judge at the directions hearing.''

That is something that we will have to watch. One the face of it, plenty of arguments can be made that the clause should not trouble us too much. However, after reading what the Bar Council has to say, one thinks that it may not happen but that it may be the beginning of a move that we would desperately deprecate in the long run. That is a concern that we should all genuinely share.

I end on a marginally flippant note. I was listening carefully to the point made about the Leeds United footballer, which reminds me of the trials of some great celebrities in the past few years. I may be wrong, but I am sure that Lester Piggot, Jeremy Guscott—what a great three-quarter he was—Ken Dodd and Bruce Grobbelaar all appeared before juries during the past few years. I have a funny feeling that they were all acquitted, which suggests that they would have been properly acquitted by a judge. However, it is swings and roundabouts, and there are hundreds of thousands of people in this country who, if their great hero came before a jury of which they were a member, would not convict them whatever the charge. I remember saying that about Jeremy Guscott, because it was necessary for him to play in the England trial a few weeks later.

I make that flippant point to show that there is an upside and a downside for celebrities. As my hon. Friend the Member for Beaconsfield said, the celebrity who is denied the safeguards of clause 36 because he is a celebrity may be in a difficult position compared with the non-celebrity. It should trouble us that although the clause appears now to give certain rights, and although there are too many problems, the real danger is where it could lead. That is why what the General Council of the Bar said was effective; and we should not ignore it.

Vera Baird (Labour, Redcar)

The issue that has latterly come to the fore, which I intended to raise, is the real difficulty—

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Two o'clock.

Standing Committee B

Clause 36 - Trials on indictment without a jury

Vera Baird (Labour, Redcar)

The general points against the clause have already been made, but I want to emphasise four of them. The right to elect trial by judge alone already exists, but it relates only to low-level crime. Of course, at that low level, it is not a certainty that one is electing trial by judge alone, because the case may be tried by lay fact finders, in which case the lay element would not be excluded.

The level of crime for which one can elect a magistrates court trial or, sometimes, trial by judge alone has varied over the years. Parliament has decided for what level of crime such an election is appropriate. Until now, Parliament has decided that, above a certain level of crime, the right mode of trial for the state is jury trial. Consequently, the existence of that procedure in relation to the lower level of crime is not in issue. The right to choose jury trial is not merely an advantage for the defendant, for which he should be entitled to opt: it is the right way to try serious crime, as the Government accept. They have said repeatedly that jury trial has served us well. Consequently, it is in the public good that, above that low level of crime, jury trials should be conducted in public, by the public, under the legal guidance of a judge. Given that broader interest in jury trials, they should not be prevented from occurring by the wish of a defendant.

I fear that the right to opt out will bring the system into disrepute. For example, accused paedophiles, alleged to have committed serious sexual offences, would expect to get a less unsympathetic hearing from a cool judge than from members of the public. It would be very difficult for people from an estate to accept that a person charged with abusing children in their vicinity had been able to opt for a form of trial that might favour them less because it would take less account of public awareness of the seriousness of such offences. People on an estate, such as Grangetown in my constituency, might ask why it was possible for the public to be completely excluded from considering the guilt or innocence of someone charged with such an offence, and at his behest.

White-collar criminals constitute another sector that is capable of bringing the criminal justice system into disrepute. People involved in middle-class crime who opt for non-jury trial will be seen to be opting for trial by their peer, a middle-class person who might be

expected to be more sympathetic to peccadilloes along the way than a broader spread of persons from different classes.

In addition, there are already complaints that magistrates who come from nice middle-class areas overestimate the impact of fairly low-level violence and are too ready to convict for it because it seems so dreadful to them, whereas it may not seem so harsh to someone who lives in a different social setting. There are also complaints about the opposite point of view. It is said that an experienced magistrate, who has seen an awful lot of horrible things, may undervalue some minor assault, although it is an important incident and may be part of a longer course of conduct on the estate where it occurred. Those problems all result from the fact that one individual may be seen from the outside as having particular prejudices or having taken particular positions in previous trials, whereas the public interest requires a diversity of fact finders and decision makers. It is not right that a defendant should be able to opt out of that fairer, wider, more socially desirable scrutiny.

Those are the problems that I perceive in the clause. However, the Bar Council pinpointed a worry, which was also flagged up by the hon. Member for Woking (Mr. Malins) before lunch, that there is a direct analogy with the Government's earlier attempts to remove a defendant's right to choose jury trial and to lodge it with the judiciary. There is a parallel here: at present, we are introducing a right to choose non-jury trial or jury trial. How soon, however, will it seem far more logical, just as it seemed to the same Government only a year ago, that that decision should be vested in the judiciary and not in the defendant? How soon will it be before jury trial is available only at the discretion of a judge?

There are problems with the clause as it stands, and there is considerable fear that it is the thin end of the wedge. My hon. Friend the Minister is aware of that argument, but it is extraordinarily difficult for him to give any reassurances on it. Although the next step or the next step but one may not be in the Government's mind now, it is none the less available to a Government who wish to introduce it. That is devoutly to be avoided, and the best way to avoid it is never to start in the first place.

There is a real risk of injustice from this proposal to rape complainants in particular. I shall make my next comments as brief as possible, as the Minister and others present listened to similar comments in the Chamber last night. It is well known that the conviction rates for rape are very low: 9 per cent. of complaints result in a conviction. That is largely because women are not happy to come to court because they do not like how they are treated. The judiciary are not the only culprits. They have not been supported very well by the police, although the police are getting better. They have not been supported very well by the Crown Prosecution Service, although it is getting better. The judiciary do not seem to be changing quite so speedily.

We often read headlines of appallingly sexist statements from the judges who are hearing rape trials. I do not know whether the Committee wants to

hear any quotations, or whether it will take them as read. [Hon. Members: ''Go ahead.''] In 2000, when one hoped that such attitudes would have passed, a judge called Goldstein, named and shamed in the Old Bailey, said that if previous sexual history was not allowed in rape trials, no jury would ever know whether a complainant was a tart or a nun. He said that that would be extremely unfair on a jury as they would not know what to make of her. That was in 2000, remember.

That judge sent the case to the Court of Appeal because he found no way of including previous sexual history in the trial under current law, although he dearly wanted to do so. Things did not get significantly better when he got to the Court of Appeal. There, Lord Justice Rose said that it seemed common sense to the Court of Appeal that if a woman had had sex with a man before—this was about previous sexual history with the defendant—she would have been more likely to have consented to sex with the same man again. Any woman judge sitting beside Lord Justice Rose, had there been any, or even any man who had had gender awareness training, would have appreciated that it might in fact be less likely that a woman would want to have sex with the same man.

I say that without fear of defiance, even though most of those present are men. There could be any kind of implications, could there not? A woman who has had sex with a man might start to go out with somebody different, and would then be less likely to want to have sex with the first man. She may decide that he is too serious, and that she will not do it out of prudence. All sorts of factors may influence her decision. However, the Court of Appeal can see only that it pointed one way: in favour of that woman's being, as it were, promiscuous. With such horrors being said now, one can only say on behalf of rape claimants, even though the conviction rate is pathetically low, thank goodness for juries, who to some extent come between them and such attitudes.

The problem now is that the judiciary set the framework within which the jury deliberate. The judiciary is 90 per cent. men, and those to whom I referred are not simply two old fogeys who ought to be retired: Rose is 60-ish, and Goldstein is not even approaching 60. Where will rape claimants be if their cases are to be heard by such men, at the option of the defendant? They will have no say whatever in the process. They will see a man opting for trial by a man alone, in an intensely gendered area. I am not alone in thinking that. In announcing the White Paper, ''Justice for All'', the Home Secretary said that he was very aware that issues to do with rape and domestic violence were highly gendered, and that Ministers, most of whom are men, needed to listen carefully to women in order to understand the essence of the problem. I pray the Home Secretary in aid, and say that the matters are delicate and gendered, and should not be left to men alone to decide. In particular, they must not be left to men who have previous convictions for getting matters wholly wrong, as the judiciary do.

I am not alone in identifying the problem: the Government have already legislated on it. The Sexual Offences Acts used to allow a wide discretion to judges on whether previous sexual history could be considered in rape trials, and they exercised that very widely indeed. In 1999, the Government narrowed that discretion and required that a series of steps be taken, because they appreciated the very difficultly that I point to.

What goes for rape goes, I fear, for domestic violence also. Again, the issue is intensely gendered and is one that many males think should be mediated between the parties to a marriage, and not the subject of intrusion by the public authorities at all. The somewhat old-fashioned judiciary—the men of the judiciary—have exemplified that view. There will be not only poor outcomes but a lack of confidence among women to come forward—the very opposite of what the Government have pursued.

Humfrey Malins (Conservative, Woking)

The hon. and learned Lady is being critical of the judiciary, and in some respects I understand that. However, is she aware that at the most recent judicial seminars for all practising and part-time judges in London, there have been lectures on the issue of domestic violence at which it has been explained to the judiciary that domestic violence is almost more aggravating than common or garden violence? The judiciary are taking that point on board now, even if they once did not.

Vera Baird (Labour, Redcar)

It is nothing but to the credit of the Judicial Studies Board that it has at last started to take such issues on board. The issue of domestic violence has been at the forefront of gender issues, to the disadvantage of the issue of rape. The quotations to which I referred are quite recent. I have asked a raft of questions about the education that judges receive in order to try rape cases. Although the Lord Chancellor replies that only the most sympathetic are able to do try such cases, he cannot point to any criteria. Furthermore, High Court judges do not have any compulsory training at all. The Judicial Studies Board does not apply to High Court judges—they can opt for it—but by and large they go on to the Court of Appeal and set the precedents that guide those beneath them. Such a system is next to useless, as it educates those at the bottom but not those whose findings they have to follow.

I could go on for hours on the iniquities of the judiciary, but it is not only I who say that. It is a real complaint and a real danger. I urge the Minister to think again.

Mark Simmonds (Conservative, Boston and Skegness)

It is a pleasure to make my first proper contribution to the Committee, and I do so with some trepidation, having seen the tremendous experience and expertise ranged on both sides. I have not practised or studied law in any detail, so I hope that the Committee will be gentle with me.

Some serious issues are at stake in the clause. I agree with other hon. Members that it will undermine the criminal justice system and the public's confidence in it—and it may at times bring it into severe and

serious disrepute. As an outsider, I take note of what the experts say. It is pertinent that the Law Society and the Bar Council are unequivocally opposed to the clause.

I do not wish to repeat what has been said, but my hon. Friend the Member for Woking and the hon. and learned Member for Redcar (Vera Baird) both said that it is potentially a slippery slope and that we are only one small step away from the rights of the defendant being taken away. It will be much more difficult to explain what I would call bizarre, unusual and unexpected decisions. The public accept that such decisions occur occasionally—there are 12 minds working on a case in a jury trial—but if there is only one judge, he could appear tainted. At best, it could seem that the old boy network was at work; at worst, there could be a perception of corruption.

I do not suggest that our judiciary are susceptible to corruption: I am talking about the public's perception. We shall deal with that in a little more detail when we come to clauses 38 to 40, on jury tampering, but I suspect that one individual is far more easily got at than 12.

I reiterate what I said when intervening on the hon. Member for Southwark, North and Bermondsey (Simon Hughes). The public have tremendous confidence in the split between the Executive and the judiciary. There have been times when ''pressure'' has been brought to bear—I am going back a long way, for example to the train robbers, when political influence was supposedly brought to bear to ensure a conviction. I would not want the public to have the perception that judges could be politically influenced, but there is no chance of that happening with the jury system. I am afraid that it might happen if we go down this route.

The hon. Member for Southwark, North and Bermondsey said that jurors have a far greater breadth of experience and knowledge of life and come from a far greater spectrum of the community than one judge could. Judges inevitably come from a white, male, middle-class background; jurors obviously do not. There is also a greater propensity for jurors to come from a wider area of the community, and they will have a greater dispersal of prejudice. Again, a judge is inevitably going to have some prejudices, and that may influence some decisions.

I have great fears—I shall go into them in more depth when we reach clause 37—about the pressure applied to judges, particularly by the media in high-profile cases because a celebrity has been mentioned. The judge could end up being the person on trial: his background and that of his family could be explored. That might also touch on the point about the judge having prejudicial views that might influence his decision. Those are my fundamental concerns about the clause.

Stephen Hesford (Labour, Wirral West)

I want to make a few short points in support of the clause. I have listened carefully to the opposition from a number of quarters on both sides of the Committee—it is important in these matters for there to be a measure

of agreement, so it is incumbent on those of us who are not of the same mind to listen to one another. I am sure that the Minister has done so. It is telling that the hon. Member for Beaconsfield (Mr. Grieve) and my hon. and learned Friend the Member for Redcar used the same example, in order to make exactly opposite points. I see the hon. Member for Beaconsfield nodding. He mentioned that a paedophile would want to use the system to avoid a jury trial because the jury would not like to hear the circumstances of his activity, whereas my hon. and learned Friend used the argument the opposite way round. That cannot be right—

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman is wrong. The hon. and learned Lady and I approached the issue from opposite directions, but both approaches were legitimate. Her example was as valid as mine—people will play the system and will be perceived to be trying to do so for a particular benefit, whereas the present system does not allow anyone to contemplate such a strategy. That illustrates how the justice system is in danger of being brought into disrepute and question.

Stephen Hesford (Labour, Wirral West)

I am quite unprepared to accept that. Under one of the arguments, the paedophile will be in front of a jury, which one or other of those arguments tries to avoid. I do not see that there is not a logical fallacy—there is.

I submit that the hon. Member for Beaconsfield is being perverse in his argument. He does not like the clause because he favours jury trial. That is a perfectly proper position for him to take, although I do not agree with it. However, he goes on to try to undermine the clause by getting rid of the safeguards within it. Again, that is an illogical position.

Dominic Grieve (Conservative, Beaconsfield)

I do not think that it is illogical. Even if we got rid of the so-called safeguard measures, I would be very uneasy, but at least the clause would have a consistency to it that made it less likely to be called into public question. I accept that, even with the safeguards removed, it would still enable people to play the system. There is a double mischief involved: first, the manipulation of the system, and secondly the public perception of the system being manipulated. By including the exceptions provisions, we shall make the situation much more difficult, even though I understand why they have been put in. The flaw in the Minister's argument is that he includes them, having said that he thinks that trial by judge alone is equally good. He cannot mean that, because he has included the exceptions.

Stephen Hesford (Labour, Wirral West)

I do not accept that. I hear the hon. Gentleman, but there is a lack of logic at the heart of his position. He can hold one view, but not both; the fact that he is prepared to argue both undermines his position of principle that there should not be a move away from jury trial.

One has to look at this part of the Bill as a whole. I was not privy to the drafting or to the discussions about why it might be presented in this particular form, but it seems unlikely that those drafting the Bill, including my hon. Friend the Minister, would not have had in mind the need for balance. Clause 38 might be

seen as the nub of this part of the Bill, and it must have crossed people's minds that clause 37 is an attempt to achieve balance. The Minister will no doubt tell me whether I have understood the Bill's logic—he is not nodding at the moment—but it seems right to provide balance by including clause 37. Clause 38 essentially withdraws one of the defendant's rights, and he should have an equal opportunity to explore his possibilities.

To wrap up the point, no one has consistently argued how clause 36 can be fundamentally prejudicial to a defendant's interests if it is the defendant who elects trial by judge. The issue has been skirted round, but I do not follow that line of argument. Non-jury trials—judge only trials, involving lay magistrates or what were formerly known as stipendiary magistrates—take place in different courts at different times, and the principle is long established.

Dominic Grieve (Conservative, Beaconsfield)

The principle that a defendant may elect trial by judge alone is clearly not unfair to him. The unfairness in the clause creeps in through the exceptions, which may prejudice the interests of those who want to opt for trial by judge alone but cannot do so. However, we must consider the wider interest, which goes beyond that of the defendant. Is it fair or good for the criminal justice system to include the mechanism in the clause? As I hoped I had explained, the clause is in danger of causing serious injustice. Indeed, the hon. and learned Member for Redcar highlighted the injustice that may be done to victims, and we should consider that.

Stephen Hesford (Labour, Wirral West)

Again, I hear what the hon. Gentleman says. To conclude, however, I am not at all persuaded by the arguments that have been arrayed against the clause. If it is pushed to a vote, I will support it.

Hilary Benn (Labour, Leeds Central)

This has been a genuinely interesting debate. It has been slightly shorter than that on the amendments, but both have aired a wide range of issues. Those issues were triggered by the clause, and they hang on the central question of the extent to which the right that the Government are offering the defendant to choose trial without a jury should be fettered in some way. That is the core of the matter.

My hon. and learned Friend the Member for Redcar mentioned cases of rape and domestic violence, and she possesses greater expertise and knowledge in that regard than every other member of the Committee combined. She raised an interesting and important point. One could adopt a different approach and identify those types of trial in which the greater public interest should prevent the defendant from exercising the right in the clause. However, the Government do not want to do that.

I have another point for my hon. and learned Friend. In so far as there are problems about the extent to which different forms of trial achieve the justice that she seeks and in so far as public perceptions differ as to how different forms of trial achieve—

James Cran (Conservative, Beverley and Holderness)

Order. I wonder whether the Minister would address the Chair—not necessarily because I want him to look at me all the time, but because it is difficult for the Hansard writer if he continually talks to his Back Benches.

Hilary Benn (Labour, Leeds Central)

I apologise to you, Mr. Cran, and to the Hansard writer; I did not intend that to happen.

In so far as the public perceive that the different forms of trial achieve different outcomes, as far as justice is concerned, it is incumbent on the criminal justice system to ensure that those differences do not exist. The point raised by the hon. Member for Woking, about the training now being undertaken, is significant. Whatever the type of trial, whether jury trial or trial by judge alone, it is important that the interests of justice, and the considerations that my hon. and learned Friend the Member for Redcar raised, should be equally served.

My hon. Friend the Member for Wirral, West (Stephen Hesford) put his finger on what, in essence, clause 36 is intended to do, which is to balance the competing arguments and interests that have been aired in this interesting debate. That is our intention—not because we are unaware of the issues that have been raised, but because we consider the clause the best way to try to resolve them.

I have a little more information now in response to the question asked in the earlier debate by the hon. Member for Southwark, North and Bermondsey about what happens in other jurisdictions where a parallel right exists, and the extent to which it is fettered.

Dominic Grieve (Conservative, Beaconsfield)

I had thought that it was my question, but it may also have been asked by the hon. Member for Southwark, North and Bermondsey.

Hilary Benn (Labour, Leeds Central)

I apologise if I did not give due credit for all the question's origins. Having undertaken to write to members of the Committee, let me just say that in the United States of America the right to opt for trial without a jury operates only with the consent of both parties and the judge, and in Canada it operates with the Attorney-General's consent, in the most serious cases. Those other jurisdictions, having wished to grant the right to defendants, have accepted that it should be fettered in certain circumstances. That strengthens the argument that fettering the right is not unusual or unfair.

The hon. Member for Beaconsfield talked at the beginning of the stand part debate about defendants availing themselves of the protection of the clause—I hope that I have quoted him correctly. He used an interesting form of words, because the clause is intended not as a protection, but to offer a choice. Like my hon. Friend the Member for Wellingborough (Mr. Stinchcombe), I do not think that the Committee should have difficulty in allowing the choice, subject to subsections (6), (7) and (8).

I was puzzled that the argument of the hon. Member for Southwark, North and Bermondsey zigzagged between the view that jury trial was needed to protect the defendant, which I do not

contest for a second, and the view that it was needed in the public interest, whether the defendant wanted it or not. He advanced both arguments. Defendants and their legal advisers can be trusted to make their own decisions about when jury trial is in the defendant's interest. Nothing in clause 36 would prevent them from taking the necessary considerations into account.

I accept entirely the point that the hon. Gentleman made using the example of the Ponting case. Indeed, going back in history, it was the jury system that led to a re-evaluation of the law on capital cases. Juries refused to convict people, since they regarded the penalty then on the statute book as unfair. He is right about protection in the relevant circumstances, but I would trust the defendant to have regard to his or her own interests in deciding whether to exercise the right under the clause.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I hold both views of the matter. I see it from the point of view of the interest of the criminal justice system, and secondarily from that of the interest of the defendant. To pick up on the point made by the hon. Member for Wirral, West, the reason why a defendant may need looking after, as it were, is that he may be the one person who has never before been in the circumstances in question, and may not be able properly to evaluate all the considerations. Judges, lawyers and other people involved will be very familiar with the situation, but the defendant may not make the right judgment under all the pressure of the circumstances.

Hilary Benn (Labour, Leeds Central)

I hear that argument, which reinforces the importance of appropriate advice in making the decision. However, the same argument would apply in relation to the existing right of choice in either way cases. I do not accept it as an argument against giving defendants the right to a choice.

Several hon. Members have referred to the question of the broader public interest and my hon. Friend the Member for Bassetlaw (John Mann) gave an example, in relation to the Leeds United case, that might or might not fall within clause 36(8). The subsection provides for the relevant considerations to be taken into account. It is a matter for the judge, but it is also appealable under clause 39, which would provide an opportunity for all the issues to be aired. On the point about freemasons, it is improper and illegal to attempt to subvert the criminal justice system in that way and would remain so under the clause.

We need to be slightly careful about where the argument of the hon. Member for Southwark, North and Bermondsey might take us. If we accepted all that he said, we might be forced to the conclusion that we should abolish the right of election in either way cases and decide that nothing could go before the magistrates, but everything should go before a jury. Every argument that he advanced would apply equally in that context. It is important, in deciding that the individual should be given the right under the clause, not to accept that justice from a judge alone is of lesser quality—not least for the reason I gave earlier, that many judges already dispense such justice regularly.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I understand the either way argument. Parliament has had other debates of this kind, when considering whether to remove the right of election. My view is that it is perfectly proper to consider, at any stage, what should be included in the category of the most serious offences. What is wrong is to assume that an entire band of offences should suddenly switch from one to another. I am always open to the argument that an offence is in the serious category, where the presumption will automatically be jury trial.

Hilary Benn (Labour, Leeds Central)

Perhaps I should have realised that the hon. Gentleman would accept my challenge in that spirit. I hear what he says.

On the matter of the timing of the choice, I reaffirm that we propose to establish time limits by means of the rules of court. We do not want judge shopping to go on when people exercise the right under the clause.

Finally, I want to deal with the one other substantive argument that has been made—by my hon. and learned Friend the Member for Redcar and the hon. Members for Woking and for Boston and Skegness (Mr. Simmonds), from whom we heard for the first time in this Committee and whose contribution was very welcome. I can only reiterate that the slippery slope or thin end of the wedge argument is not appropriate.

Jury trial for serious offences will remain the norm, and all that the clause is intended to do—subject to the safeguards of subsections (6), (7) and (8), which we have debated at great length, and which are aimed at balancing the different arguments that we have heard in the Committee—is to give defendants the right to decide whether to be tried by a jury or a judge. I bring the argument back to Sir Robin Auld's original recommendation and the fact that the provision was widely welcomed when it was first published, and has the support of the Home Affairs Committee.

Stephen Hesford (Labour, Wirral West)

May I correct something that I said in my speech? I referred to clauses 37 and 38, but I meant clauses 36 and 37.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 12, Noes 5.

Clause 37 - Application by prosecution for

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

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.'.

James Cran (Conservative, Beverley and Holderness)

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

clause 37, page 24, line 32, leave out

'the complexity of the trial or'.

No. 239, in

clause 37, page 24, line 32, leave out

'or the length of the trial'.

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

clause 37, page 24, line 35, leave out

'in the interests of justice'.

No. 273, in

clause 37, page 24, line 39, leave out from first 'that' to 'will' and insert

'the length of the trial'.

No. 243, in

clause 37, page 24, line 43, leave out 'or commercial'.

No. 244, in

clause 37, page 24, line 43, leave out

'or which relate to property'.

No. 245, in

clause 37, page 24, line 44, leave out 'nature or'.

No. 207, in

clause 37, page 25, line 1, leave out subsection (6) and insert—

'(6) Such an order may not be made unless—

(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 (Liberal Democrat, North Southwark and Bermondsey)

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.

Dominic Grieve (Conservative, Beaconsfield)

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.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

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

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.

Desmond Turner (Labour, 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.

James Cran (Conservative, Beverley and Holderness)

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 (Liberal Democrat, North Southwark and Bermondsey)

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—

Desmond Turner (Labour, Brighton, Kemptown)

Not for a long time.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

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.

Humfrey Malins (Conservative, Woking)

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 (Liberal Democrat, North Southwark and Bermondsey)

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

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.

Mark Simmonds (Conservative, Boston and Skegness)

Before the hon. Gentleman moves on, could he explain why he believes that if the trial were to be presided over by a judge, as opposed to having a jury, it would shorten the trial procedures and make it less burdensome for those still involved in the trial?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I believe, and I stand to be corrected by hon. Members with experience, that if there is a jury, it generally takes longer for the points to be made in court. Lawyers on both sides feel obliged to spell things out at greater length—whether that is necessary is a separate matter. Moreover, the jury is not allowed to do what the judge does. When a judge is in proper control of the case he will frequently say, ''Thank you very much, Mr. Malins. I have taken the point.'' He will then stop everyone else repeating, elaborating on or extending it. There is a significant difference.

In evidence giving, the case can be shortened by having a judge and no jury by about a quarter to a third, and in submissions to the court by about the same amount. I bow to the evidence if there is any. I can see the merit in terms of speeding up the wheels of justice, but the price we will pay will be the loss of the security of the verdict and all the benefits of a jury trial.

David Cameron (Conservative, Witney)

Is there not a danger that complex fraud cases could be made longer rather than shorter? Currently, in trials with a jury the prosecution and the defence always try to keep it simple and straightforward. In a judge only trial the lawyers might run away with themselves in complexity with ever increasing complex papers and arguments.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

That is a risk. Professionals only trials have distinct disadvantages. Lawyers with a particular expertise in serious fraud might talk in the language of acronym, summary and technicality. Not only might that become more obtuse and obscure, but the defendant might lose the plot. The public and those who report the trial would be far less likely to understand the case. In the Saunders case, for example, there was a public interest in the case of a great big international company, fraud and so on being reported accurately. To put it bluntly, it is

important that legal affairs correspondents, who may not necessarily be lawyers, can report in simple terms what has happened to someone's investments, shares or business. There are serious justice issues in making sure that there is an obligation on lawyers and on judges to speak in the language of ordinary people. The truth is that if cases are well prepared they are easy to understand; it is when people have not done the preparation that they use technical language to hide the fact that they do not know what is going on.

Amendment No. 208 would change clause 37(7), the wording of which seems slightly unjustified. It reads

''But a step is not to be regarded as reasonable if it would significantly disadvantage the prosecution.''

It strikes me that a clause should be even-handed and not disadvantage either the prosecution or the defence. Amendment No. 208 would provide that even-handedness. I hope that colleagues will consider these ways of improving the system if we change the principle, although I hope that this House and the other House will not change that principle.

Dominic Grieve (Conservative, Beaconsfield)

I listened with care to the hon. Gentleman. In moving amendment No. 205 he raised an interesting topic for discussion about improving the clause. I will return to it at the end of my comments. Our amendments run through the clause subsection by subsection to identify the key areas that the Committee may like to consider in it.

I, too, believe in the validity of jury trial. It should not be pushed aside without good and sufficient reason. That said, I am pragmatic: if good and sufficient reason can be shown and there are no serious impediments to justice being done and being seen to be done, I am prepared to keep an open mind.

It is unclear, apart from the burden on a jury, which I will return to in a moment, that this is necessary for justice to be done and to be seen to be done. Statistics speak for themselves: the conviction rate at the Serious Fraud Office is about 80 per cent. I do not accept that it is beyond the capacity of juries to return understandable, coherent verdicts in long and complex trials. Cases such as the Maxwell case are sometimes bandied about, but they support my argument rather than undermining it. The evidence as it emerged and was commented on amply supported the final decision of the jury, even if it was not the one that might have been expected at the outset.

In any event, long and complex trials, as the hon. Gentleman rightly said, have their own problems. A wise prosecutor tries as much as possible to avoid them. Interestingly, the Government take a different view and clearly think that long and complex trials may be very necessary in the interests of justice, so they want to get rid of juries to enable such trials to happen more smoothly. Hence, the provision in clause 37(7) that a step is not to be regarded as reasonable if it would significantly disadvantage the prosecution.

My first observation on reading the clause is that its provisions may be intended to cover long and complex fraud trials. As drafted, however, it offers the possibility of non-jury trials for a much wider scope

of offences than just fraud cases. I say that to the Minister, and shall illustrate it as we proceed.

I specialise in health and safety at work, an area that would undoubtedly be caught by the provisions because the trials are often lengthy and complex, and arguably often concern property, in the sense that an incident took place on property. I do not know whether the provisions are intended to cover such cases. However, I think that there is the potential for that. If so, I point out to the Minister, as an illustration of my point, that the Court of Appeal and the House of Lords have repeatedly issued dicta that the Health and Safety at Work, etc. Act 1974 is, by its very nature, one for which it is for juries to decide the questions of fact. The burden of proof can be reversed and is not the ordinary proof beyond reasonable doubt. Given that, the jury is the essential safeguard between the defendant and the unfair prosecution that might be visited on him.

Amendment No. 237 is a straight ''may'' and ''must'', and would remove the necessity. I accept that the Minister could argue that it is a wrecking amendment. Although it would still allow a trial to take place without a jury, it would leave a residual discretion to the judge to say that a jury trial was necessary, notwithstanding the drawbacks.

Amendment No. 238 concerns the complexity of the trial, which brings me to my point about complexity as opposed to length. Subsection (4) makes it clear that one can go for trial by judge alone because of either length or complexity. I accept that the two might go hand in hand in most cases. However, health and safety trials do not normally meet the criteria of great length—though I was involved in one that went for six weeks. I understood, from the White Paper and elsewhere, that we were talking about trials that last for five, six or nine months. Health and safety trials are undoubtedly complex, however, because they often require that multiple expert reports be listened to, and there might be a need for lots of technical documents and the instruction of a jury, frequently in engineering, electrical engineering and other scientific disciplines. It might be extremely complicated to explain to a jury why someone failed to look after his employees. Such matters undoubtedly satisfy the complexity test, but I have never heard it suggested in my field of practice of health and safety at work that it was necessary to dispense with the jury.

Why is there a complexity provision? If a trial is merely complex, but not lengthy, what burden is placed on the jury that the Government consider impossible for them? What evidence is there that justice cannot be done because of complexity, as opposed to length? I understand the argument about length. What is the argument on complexity? We should break the matter down into component parts. There is at least an argument that complexity has nothing to with the issue, and that the problems spoken about in the White Paper are those that relate to length, and volume of material.

Amendment No. 239 is designed to home in on the length of the trial. A long trial might not be complex at all. If I have understood the subsequent provisions, it appears that the burdensomeness might spring from

length. Even if it is lengthy, a trial can be perfectly comprehensible. The key area for the Committee to consider is whether the Government can adduce serious, credible evidence that, from a potential panel population of possibly 25 million or 30 million people—I do not know the exact number, but it must be pretty vast—between the upper and lower age limits, the judicial system cannot produce jurors to try cases. If the only issue is length, I am satisfied that one can always find jurors. I have never known a case in which it has not been done. One might start with a panel of 200, but that does not matter. I have not heard it said that the jury panel with which a court has ended up is a group of unemployed halfwits. I accept that there are issues concerning juries, but I find the message that is being pushed by the Government extremely unsatisfactory.

Humfrey Malins (Conservative, Woking)

Patronising.

Dominic Grieve (Conservative, Beaconsfield)

Indeed. I would like to draw the Minister out. If that is his anxiety, we need to know about it.

Amendment No. 240 is a consequential amendment, which we need not go into. I should like comment on amendment No. 272, which was tabled by my hon. Friend the Member for Hertsmere, who is not here. It is rather sensible. No jury can be found for which it would not be an excessive burden. That brings us to the nub of the issue. Can the Minister bring to the Committee good evidence that there are instances in which no jury can be found for which it would not be an excessive burden to do a six or nine-month case? I am not sure about the lengths of the longest criminal trials to have taken place in this country. It would be useful to know how many trials lasting more than six months there have been in the past year or two. That would be a helpful indication as to the extent of the problem, so that we can decide whether the solution before us is the right one.

Amendment No. 273 is solely about length of trial. Then we come to amendment No. 206, which concerns burdensomeness. Subsection (4)(a) and (b) say two similar but slightly different things. I seek the Minister's help as to what the relationship is between them and how they differ. They bear repetition. They concern instances in which the complexity or length of a trial, or both

''(a) is likely to make the trial so burdensome to the members of a jury hearing the trial that it is necessary in the interests of justice for the trial to be conducted without a jury, or

(b) would be likely to place an excessive burden upon the life of a typical juror.''

I am not convinced that I understand the distinction. I think that paragraph (b) is saying that there is no problem, but it would be so irksome to the juror that there ought not be a jury and paragraph (a) is saying that not only would it be irksome but, in some way, the quality of justice would suffer as a result. Even if I am right, I am not convinced by the argument. Can the Minister explain the relationship?

I would like to draw the Minister out a little on amendment No. 241 and the ''interests of justice''. The interest of justice is that there should be a fair verdict. Is he saying that the current system is not producing

fair verdicts? If not, the phrase should be removed from the clause. It is really all about the convenience of jurors.

Let us be honest, many things are burdensome. It is burdensome to be called up for jury service, though it is a hugely important function for the average citizen and we should celebrate it more than we do and afford it greater recognition within society. It is one of the key elements of participatory democracy. We often speak about devolution in that context, but jury service is one of the best examples of real participatory democracy that I can think of.

I am unconvinced by the phrase ''the interests of justice''. Will the Minister explain how placing a burden on the juror does not serve the interests of justice? On that basis, we could get rid of jury trial altogether: it is bound to be burden on anyone who is called up. The Government do not really mean ''the interests of justice'', so we should call a spade a spade and take it out.

Amendment No. 244 brings us to ''relate to property''. The Minister is laughing, and I am glad to provide him with some mild entertainment in the course of a long afternoon sitting and I take it as a mild compliment. However, once one focuses on the detail, it becomes a serious issue. Part of the clause is simply verbiage to decorate an otherwise unpleasant and uneasy change.

I referred to the famous amendment No. 244 earlier. Under subsection (5)(a), the complexity and length of a trial is attributable

''to the fact that the issues likely to be material to the verdict of a jury hearing the trial relate to arrangements, transactions or records of a financial or commercial nature or which relate to property''.

If in a health and safety case a victim has died falling down steps or been crushed by a machine, would it not fall squarely under subsection (5)(a)? Arguably, all sorts of other criminal cases might do so, too. Do we really want that definition, or should it relate to commercial transactions affecting property? Amendment No. 243 would leave out the word ''commercial'', so will the Minister explain what it means in this context?

Amendment No. 274, tabled by my hon. Friend the Member for Hertsmere, would leave out the word ''complexity'', so subsection (6) would refer to reducing only the length of the trial. That takes us back to the question of the true motive.

Amendment No. 246 would remove subsection (7), which deals with disadvantaging the prosecution. My experience of fraud trials is not enormous, but I have done some. I remember an 18-count trial in Norfolk, in which I represented a solicitor accused of mortgage fraud. We got the indictment severed in three, and the judge said that an 18-count indictment was ludicrous, not because of the comprehensibility to the jury, but because of what the prosecution wanted to show. The judge did not aver it in open court, but subsequently took the view that if the defendant was convicted on one indictment, it would be difficult to resist

conviction on the others, and that if he was acquitted on one, the prosecution might want to consider the matter further. In fact, he was acquitted on the first and second indictment, and the prosecution then dropped the third, greatly to the saving of the public purse.

I am all in favour of the severance of indictments, although I remember the prosecutor being upset about it because the massive product that he was going to present had to be compartmentalised. In fact, it did him a good turn. He had lost sight of the wood for the trees and, in this case, of the fact that most of the witnesses were in league with the defendant in the mortgage fraud. There had been no fraud, because they had never been misled. They were the building society managers who had been lending the money on the defendant's say so.

I point that out because it is my experience that large trials are far from an advantage to the prosecution. Distilling issues into small compartments is enormously helpful to everyone, including the prosecution. However, I agree with amendment No. 208, because if the change is not to be to the disadvantage of the prosecution, it should not be to the disadvantage of the defence either.

Amendment No. 254, to which my hon. Friend the Member for Woking will speak, concerns the 12-month rule for a trial. How long is a long trial? We have to grasp that nettle and decide how to define it. Otherwise, I fear that there will be many problems.

I apologise for taking up too much of the Committee's time, but I have identified important points on which I want the Minister's answers. It would be easy to be carried away with the flow of rhetoric that appears in clause 37, but it masks the Government's real intention. They believe that lengthy trials are a bore for the prosecutor and the judicial system and would much rather have them tried by judges, although there is no reason from the point of view of fairness why juries should not be involved.

Humfrey Malins (Conservative, Woking)

I do not like clause 37. We will debate the issues of principle involved on clause stand part, but I want to ask the Minister some questions.

If there is a mischief that the Minister is seeking to cure through the clause, what is it? What research has been done to prove that there is a problem? What soundings has he taken from the judiciary, the Bar Council and others intimately involved in trials about the merits of his proposals? How many juries have been discharged because of the case's complexity or length, and how many cases have not been able to start because of the impossibility of empanelling a jury?

If there are dozens of examples of each case, one will have more of an understanding, particularly if it is backed up by detailed research among the judiciary and legal profession. That would provide more understanding of why the clause has been included. However, until we get that research, we cannot be particularly pleased with the clause, not least because it is another move to take away jury trial from a defendant. In my experience, there are few, if any, cases that cannot be properly turned into language

that is understandable by jurors and properly dealt with in a reasonable time.

Amendments Nos. 238, 240 and 254 concern two aspects: complexity of trial and length of trial. I echo the question of my hon. Friend the Member for Beaconsfield about how long is a long trial? Is it six, nine or 12 months? Is it merely an arbitrary decision for a judge to take in each case? Amendment No. 254 would insert a provision to tighten the position on the length of a trial by saying that it should not be a deciding factor unless first, the Crown and the defence have jointly certified that the trial will last for more than 12 months, secondly that the judge takes the same view, and thirdly that the judge is satisfied that it is not reasonably practicable to empanel a jury.

Otherwise, we would have the vagueness of counsel saying that the case will take a long time, and therefore would be an ideal case in which to have no jury. The judge would then ask how long the case would take, and counsel for the Crown would say that he did not know because he did not know how many witnesses the defence would call, but believed that the Crown case could take a few months. If the defendant was then obliged to say how long his case would last, he might come up with a figure that was different from the Crown barrister's.

The point of my comments is that certainty is needed in such situations. A judge in court No. 1 might say that a case looked as if it would last for six months, based on what counsel had said, and that therefore he would wheel it away from the jury and give it to another judge sitting alone. Meanwhile, in court No. 2 a judge might decide that a case looked interesting, and decide to take it even though its duration had been estimated at 10 or 11 months. There is no certainty in using the phrase, ''length of a trial.'' Where is the evidence that the length of a trial in the past has resulted in a jury being discharged or being unable to return a verdict?

There is a further issue that I should like to raise. I do not like the phrase

''excessive burden upon the life of a typical juror.''

The more I look at that phrase, the less I understand what it means. What is a life? Are the Government saying that the life of a juror is a 24-hour-a-day life? Is the phrase implying that the excessive burden falls on the juror during the trial hours—10 till 4 pm, with substantial breaks—or that the burden is such that the life of the juror is deemed to be 24 hours a day? Are members of the jury taking home with them too many pressures and problems? It is not a happy phrase.

I would consider a burden on the life of a juror to be trying a murder or drugs case in which there are serious threats of tampering with the jury or their family members. As a jury member it would be a burden on my life if I was walking to court every day concerned that I was being followed by a friend of the defendant.

The issue of complexity has been covered already. It is a good thing if counsel on both sides can reduce the evidence into a form that is easily comprehensible. That is done day after day in fraud cases. I forget who it was—I will be forgiven, I hope—who suggested that

in cases of fraud heard by a judge sitting alone there might be a temptation for everyone involved to become increasingly complex in their arguments, so that eventually the judge might be overwhelmed by the complexity of the matter, and might have to discharge himself or herself because he or she could not understand the arguments. There is thus also a danger of going too far the other way.

If I had come across dozens of cases over the years in which it was too difficult for the jury to comprehend the documentation, or in which it was impossible for counsel for the Crown to reduce that documentation to comprehensible elements, I would understand this provision. If I had come across cases over the years, even anecdotally, in which jurors could not continue because of the burden of time, I would find it a little more acceptable. However, as things stand I have severe doubts on the issues of complexity and length.

On amendment No. 244, I assume that the Minister will confirm that the word ''property'' in clause 37(5) refers to real property rather than intellectual property, intellectual property being entirely different from real property, although the two are different aspects of the same matter. Perhaps we shall receive confirmation on that from those who are in the know, but let us assume that it refers to real property, namely a building. This is very strange. The clause states:

''The second condition is that that complexity . . . will be attributable—

a) to the fact that the issues likely to be material to the verdict . . . relate to property''.

I do not know what that encompasses—

Sitting suspended for a Division in the House.

On resuming—

Humfrey Malins (Conservative, Woking)

I was talking about property and amendment No. 244. Put simply, a complicated case involving conveyancing fraud relating to a property that might last for only eight days could, under the provision, be taken from a jury. The Minister will correct me if I am wrong, but it could equally be argued that a complicated case involving burglary of domestic property relates to property. Will the he explain precisely what he means? There is a danger that the prosecution will be tempted to consider it easier to remove more and more cases from a jury and place them in the hands of a judge.

There are many issues to which we should return on clause stand part, which I look forward to discussing. However, I hope that the Minister will respond to the issues that I raised in relation to complexity, length and property.

I gather that the hon. Member for Southwark, North and Bermondsey, who spoke to amendment No. 208, tabled it five minutes before I did, but we had the same idea of a level playing field. I asked the Minister what might disadvantage the prosecution, and what might disadvantage the defence. Will he explain why subsection (7) does not include the words ''or the defence''?

Hilary Benn (Labour, Leeds Central)

The amendments partly demonstrate, and I hope that all members of the Committee acknowledge, that the criminal justice system has a problem with juries and long and complex fraud and fraud-related trials. Two recent high-profile cases make that point. The first was the Blue Arrow case in which the Court of Appeal commented that the case had become almost unmanageable and that there was a significant risk of a miscarriage of justice resulting from the volume and complexity of the issues presented to the jury. In the case of Regina v. Levitt in the following year, the trial judge ruled that a substantial body of evidence should be excluded, not because it was irrelevant or inadmissible but because it would be unmanageable for the jury and make the trial unacceptably long.

The hon. Member for Woking asked for evidence. The two cases are part of the evidence, but I also refer him to the Auld report, which he will have read carefully. In paragraphs 173 and 174, Sir Robin Auld clearly and cogently set out the reasons why the change was deemed necessary. Long and complex fraud and similar trials can last for months. The average length of trials prosecuted by the Serious Fraud Office is now about six months. Such trials place an excessive and unreasonable burden on the members of the jury. They also make it difficult to ensure a representative jury. Judges are understandably sympathetic to those seeking to be excused from serving on a long trial on the grounds that they cannot afford to have their working and personal lives disrupted for months on end.

I accept that jury service is an important civic duty, but there must be proper limits to the imposition that it is right to make on jurors' lives. Considerable efforts have been made in the past to assist the courts in managing the trial process in such cases. The Criminal Justice Act 1987 implemented a number of recommendations made by the Roskill Committee, including the establishment of the Serious Fraud Office. The preparatory hearing regimes in the Criminal Justice Act and the Criminal Procedure and Investigations Act 1996, with their emphasis on case management and the presentation of issues to the jury, are working well.

However, there continue to be a few cases, such as the ones that I have just cited—they are only a few and it is important to get the clause in perspective—that are so lengthy and/or complex that they stubbornly the resist the best efforts of all involved to reduce the burden on the jury without imperilling justice. I do not agree with the argument that severing trials is not a bad thing. The need to sever trials, pare down justice and reduce judges in serious fraud and similar trials to make them manageable for the jury means—this is the point at the heart of subsection (4)(a)—that the full criminality in such cases is not exposed, to the detriment of justice. That cannot be right.

That is the answer to the point made by my hon. Friend the Member for Brighton, Kemptown (Dr. Turner). This is not about disadvantaging defendants but about ensuring that the full case is heard and the full extent of the alleged criminality is exposed to the trial's consideration without excessively burdening

juries. I point out that the Home Affairs Committee supported the proposal.

David Cameron (Conservative, Witney)

The Minister is making the point that the Government want to change the rules on jury trials because of complex fraud cases. He is trying to make the case that there is a difficulty with such cases. Does he accept that there is scepticism throughout the Committee, because this is not the first time the Government have tried to limit jury trial? This is not the argument that they advanced on previous occasions. Many of us think that this is an attempt to have another bite at the cherry from a different point of view.

Hilary Benn (Labour, Leeds Central)

Of course I am aware of the scepticism, but neither I nor the Government are responsible for it. All one can do in Committee is to judge the proposal on its merits. I am trying to advance on its merits the case for why the change is sensible. It is a long-standing problem, and as Sir Robin Auld said, it is growing worse. Efforts have been made to address it in the past but the difficulty continues. If the full extent of the alleged criminality cannot be brought out because of the steps taken to make the case manageable for the jury, are the interests of justice served? That is the argument for the change.

I hope that hon. Members will not hear with heavy hearts that I now turn to the first of 17 amendments to clause 37.

Humfrey Malins (Conservative, Woking)

The Minister may have forgotten that I asked specific questions about what research the Government have done among the judiciary, the Bar and the Serious Fraud Office on these matters, and how many cases have been discharged because of complexity or length in the past year or two. That would give us some background.

Hilary Benn (Labour, Leeds Central)

I do not have to hand the answer to the second question about the number of cases; I undertake to look into it and, if that information is available, to provide it to the hon. Gentleman. The answer to his first question is covered extensively, which is why I made particular reference to paragraphs 173 and 174 of the Auld report. Sir Robin Auld describes at considerable length the consultation on the consideration of the case for changing the current arrangements in the criminal justice system over a number of years.

On amendment No. 205, the hon. Member for Southwark, North and Bermondsey recognised that trials without jury may be appropriate in these cases, but he proposes other solutions. It is not clear to me that the problems that I have identified would be significantly more manageable if we went for a jury of eight as opposed to 12. The numbers issue does not go to the heart of the question of the damage that can be done to a trial by seeking to make it digestible for a jury, or of the impact that it has on the lives of jurors themselves. Changing the number of jurors would not address those issues.

There is also a risk that the jurors serving on such cases might be self-selected by virtue of the fact that they were able to do that. That raises a concern about departing from the principle that jurors are randomly

selected from the population local to the Crown court in question. Although no one would claim that the jury system is perfect, its representative nature and that random selection are important considerations. That goes to the heart of the problem, which is why the change is proposed. Those two principles would be compromised by the proposals in amendment No. 205, or by simply saying, ''Never mind—as long as you can find some jurors who are prepared to give up a year or more of their lives, it is okay to carry on.'' I do not accept that argument.

Amendment No. 205 also proposes that the jury should have a number of special advisers—a phrase for which I have particular affection, because of my former employment. The idea is interesting, but as the defence would have no way of examining the advice that the advisers gave the jury in open court, I am not attracted to it.

Amendment No. 237 repeats the ''may'' for ''must'' argument that we had in debating the previous clause. I resist it for the same reasons that I advanced on that occasion.

Amendments Nos. 238 to 240, 206, 241 and 272 are designed to explore the various elements of the conditions that the Bill imposes. I shall set out why subsection (4) has been drafted as it has, because a number of hon. Members drew attention to that. Trials may be exceedingly long without being particularly complex, even in respect of cases involving financial and commercial evidence. They may also be exceedingly complex without being particularly long, although it is fair to say that complexity tends to make a trial longer. The drafting of subsection (4) is concerned with the interplay of the two, because length or complexity, or a combination of both, can produce the problems set out at paragraphs (a) and (b). We need to provide for those cases, but we do not want to risk bringing in other cases inadvertently.

I must confess that I had some difficulty following the argument advanced by the hon. Member for Beaconsfield, that a health and safety case would be caught not only by the provisions of subsection (5). We must remember that subsection (5) is a condition that has to be fulfilled, as is subsection (4). I genuinely cannot see how the case that he gave as an example could apply. Nor was I persuaded by the argument advanced by the hon. Member for Woking about a burglary. As I said, we do not want to bring in other cases inadvertently. That is why the opening words of subsection (4) state quite straightforwardly that the complexity or the length, or both, must be the source of the problem.

There is no question of any implication that juries are not competent to hear cases. Long and complex financial cases are burdensome to everyone involved, but we are talking about cases in which jurors need to be relieved of that burden, because of the complexity and because all other means of alleviating it could diminish the overall justice of the case. Subsection (4)(a) needs to be read in conjunction with subsections (6) and (7). I shall come to my earlier point about the interplay between the two in a moment.

Subsection (4)(a) is intended to address the injustice that can be caused by severing trials, paring down evidence and reducing charges in the interests of making trials more manageable by juries, because justice, not least to the victims, requires the full criminality of these serious crimes to be addressed by the courts. That is not happening satisfactorily at present.

I remind those who tabled the amendments of the high threshold that applies before a judge can conduct these cases without a jury. Subsection (4)(a) is about cases in which it is necessary in the interests of justice for a case to be conducted without a jury, and it is a high test.

The hon. Member for Beaconsfield and others raised concerns about the extent to which clause 37 allows trial without a jury in cases other than those whose length or complexity derives from the sheer volume of purely financial evidence. The hon. Member for Hertsmere wants those cases to be limited to lengthy trials.

The key features that have caused such difficulties with juries in serious fraud cases falling within this narrow category can be a feature of other cases, too: for example, those that involve trafficking or money laundering or VAT-related frauds. The context for such offences is the sophisticated modern commercial and financial world. A common element is the use by defendants of a complicated network of companies, parties and overseas bank accounts to obtain property or launder currency. Their prosecution can necessitate the presentation of vast quantities of complex and technical evidence. In response to the hon. Member for Woking, in cases that fulfil the other requirements, property could include intellectual as well as physical property. As I said, efforts have been made over the years to try to deal with these problems, and the clause has been proposed because of the difficulties that remain, to which I have drawn attention.

On amendment No. 207, the court will be required to bear in mind all the efforts that can be made to make the case manageable for the jury. Subsection (6) requires the judge to consider everything that can reasonably be done to prepare a case for a jury trial before deciding whether, in spite of everyone's best endeavours, a jury trial would not serve the interests of justice or would place an excessive burden on the members of the jury hearing the case. In doing so, the judge will exercise his or her powers under the preparatory hearing regime.

Humfrey Malins (Conservative, Woking)

Will the Minister give way?

Hilary Benn (Labour, Leeds Central)

May I continue? It may help the hon. Gentleman.

I can see the point behind the amendment: the hon. Gentleman wants to be sure that all the options that would allow a jury trial have been tested, but the subsection as drafted provides for that to happen. A judge cannot be satisfied that the conditions for ordering trial without jury under the clause have been met without having regard to the steps that might be taken to reduce the length and complexity of the

trial. However, I cannot agree that the order cannot be made until those steps have been taken, because it is just those steps that have the potential to impair the justice of the case. If the judge is satisfied that the steps can be taken to reduce the length or complexity of the trial to the point where the conditions for judge alone trial are not satisfied, the steps will be taken and the case can be tried by the jury. If the judge thinks, notwithstanding all the reasonable steps that will be taken, that conditions for a judge alone trial will inevitably be satisfied, there is no point in taking those steps to the detriment of the satisfactory conduct of the trial.

Humfrey Malins (Conservative, Woking)

Is the Minister saying that the problem is that he believes that a jury cannot understand complex and lengthy trials?

Hilary Benn (Labour, Leeds Central)

No, that is emphatically not what the Minister is saying, which is why I said so a moment ago. I draw the hon. Gentleman's attention to my remarks. It is about the burden that length and/or complexity creates. In the first instance because of the sheer length of time and the disruption that that imposes on juries—the excessive burden in the wording of subsection (4)(b) and in subsection (4)(a)—the Committee must consider the interplay between the duty of the process to allow the full criminality to be exposed and the damage that having to reduce that criminality to make it manageable for the jury does to the trial process.

We now come to the point in subsection (7) about not disadvantaging the prosecution. I understand that amendment No. 208 is trying to ensure that the interests of the defence are not significantly disadvantaged. However, I would say to the hon. Member for Southwark, North and Bermondsey that the amendment is unnecessary because the judge is already required to ensure that the defendant's right to a fair trial is not compromised in any way. The defendant has many additional guarantees of fairness, not least under the European convention. Of course, the clause provides for rights of appeal against a court order to conduct or continue a trial without a jury, so there is no question of doing anything that would damage the defence.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

If the Minister is so satisfied that the judge's obligation is to ensure that the trial is fair, the subsection is unnecessary.

Hilary Benn (Labour, Leeds Central)

Except that subsection (7) is about disadvantaging the prosecution in the sense that the steps would require the full criminality not to be put before the court. Thus, in order to make their case, the prosecution would want to lay everything out before the court for consideration. By slicing it up or leaving things out, it might be possible to make it more manageable, so as to satisfy the conditions that would allow for jury trial. However, in the process, the cause of the prosecution would be disadvantaged, because it would not be possible to expose the full extent of the criminality. That is why the subsection is there. That consideration does not apply to the defence.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I understand, but I have two points in rebuttal. First, the whole process is triggered only by the prosecution, and secondly, I think that the Minister said something earlier that was in error: it is my understanding that where there are agreed documents or ways of making a précis of the case, they are shown to both counsel and agreed by both sides before being used by the court, so any such methodology would have been agreed between the sides anyway.

Hilary Benn (Labour, Leeds Central)

On the second point, I hope that I did not say anything in error. I take the point about documents being available, but I am much persuaded by the views that were expressed in the Blue Arrow and Levitt trials, which I mentioned at the beginning of my contribution. They said that, in such cases, one is considering something that is unmanageable. That is why we are having this debate.

As to the hon. Gentleman's other point, I accept that the prosecution apply to initiate the process, but the judge has to consider whether any steps can be taken to obviate the need to hear the trial without a jury. At that point, the prosecution have an interest in saying that such steps could be taken, but that if they were to be, the cause of the prosecution would be disadvantaged because things would be omitted that were important in exposing the full criminality.

Dominic Grieve (Conservative, Beaconsfield)

It seems to me that the hon. Member for Southwark, North and Bermondsey has a point. The defence come along and ask for trial by jury. The judge then says that the prosecution want trial by judge alone, but that he has considered the matter carefully and has come to the conclusion that it might be possible to have trial by jury if he tinkers with the way in which the indictment is to be tried. The defence counsel then thinks that there may well be a problem about having a fair trial. Surely, at that point, the defence must be included under subsection (7), because at the moment of coming to that decision, it might be that everyone agrees to go back to having trial by judge alone. The option must be included, otherwise it cannot be taken into account.

Hilary Benn (Labour, Leeds Central)

That is not the case, simply because the whole thing is appealable anyway, so if the defence are unhappy about the decision, they will have the opportunity to appeal it under clause 39.

Amendment No. 254 is about whether there should be a reference to trial length. We considered whether that would be appropriate, but came to the conclusion that it would be inflexible and overly mechanistic. How long is long? We came to the view that such assessments are best left to the courts. That is why the clause is so drafted.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I shall deal quickly with the points. I shall not press my amendment to a vote, because I wish to vote on the clause as a whole. On the Minister's rebuttal of amendment No. 205, I accept that the number of jurors does not go to the heart of the issue. However, if there are eight jurors rather than 12, the matter is less burdensome in the round because it is burdensome on fewer people. I do not accept that having a smaller number of jurors makes them self-selecting. The evidence does not support that view.

The evidence suggests that, when a group of people are empanelled, the cross-section can be just as reasonable, even though some are not comfortable with a long trial. One does not end up with more women or more men, or more older or more younger people, because society as a whole has a sufficient number of adaptable people in it, and it would appear to be able to meet the demands of the criminal justice system. For the reasons that the Minister gave, there are not many lengthy trials. Therefore, although in theory the outcomes are not statistically quite as random, I do not think that in practice the evidence bears that out.

On the point about special advisers, the Minister was in error. Any document produced by anyone in such an advisory capacity could be cleared by both sides. That often happens. If documents are produced to help jurors, they are agreed all round. If a special adviser or some other person assisting the judge produced such a document, I would expect that to happen.

The Minister prayed in aid a couple of well-known cases that became unmanageable. Although I remember the cases—it was merciful that I did not have to follow them in detail—I am not sure whether that was caused by the inability of the criminal justice system to cope or by the prosecution's bad management. I recall that there was some criticism of the way in which the prosecution was managed in those cases. The evidence and the statistics show that the Serious Fraud Office is generally getting much better at managing such matters. About 10 or 15 years ago, the SFO's strike rate of successful convictions was about two in three. In the past five years, it has been more than eight in 10. The number of people working at the SFO has been beefed up. The procedures were reviewed and improved. There were criticisms of the fact that results were not being delivered. The old evidence is not very good evidence, and has been superseded by new evidence.

The fundamental arguments that remain are about amendment No. 208, which refers to subsection (7). The issue concerns whether the law ought to require that the judge not regard any of his assessments as of any disbenefit or benefit to either the prosecution or the defence. I am uncomfortable with, and disappointed by, the fact that the Minister could not find it within himself to accept that ''or the defence'' should be added to subsection (7). I have not seen his papers, but I have a sense that that bit of advice might come under the first category of things to be offered as a concession in times of difficulty. I know how such things work now. There is a first range of concessions, a second raft of concessions, and, as matters proceed to the House of Lords, a third raft of concessions. I have a sense that a bit more pressure of numbers further down the line would produce the change without too much difficulty. I hope that, even though the Minister, quite understandably, speaks to the brief on round 1, rounds 2 and 3 may persuade him and his colleagues that we should do something different. I shall reserve the other matters for later, and although I am not entirely comfortable with the proposals, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Humfrey Malins (Conservative, Woking)

This is a very important clause—one of the most important that we have considered. It is to be contrasted with clause 36, which was important in some ways. In effect, it said that there would be fewer jury trials, but at least it had the merit of giving the defendant the option of trial by judge alone. The real mischief in clause 37 is not that the defendant has that option; it is that the defendant has no option. The mischief is that the prosecution can opt for a trial without jury, no matter what the defendant may want. That is why it is very serious: it is the first clause in the Bill that can properly and purely be said to be attacking the principle of jury trial for a defendant.

It has been a fundamental right for a very long time that a defendant should be able to be tried by a jury. That right is even more important in serious cases. In the most serious cases—and fraud cases are very grave—the defendant should have the right to be judged by a randomly selected jury of his or her peers, not by a single judge. Such offences carry great penalties, and society would feel more content if those charged with the more serious offences that this clause envisages were dealt with by a jury.

Has the Minister persuaded us today that there is a case for this clause to stand part of the Bill? I do not think that he has. It is not as if we had evidence that there is a crying need for long and complex cases to be tried not by a jury but by a judge alone. I ask him again, if he cannot answer me today, to write to me on a series of questions. It was entirely possible for those advising him to anticipate from the amendments what the questions would be and to have briefed him fully in advance so that he could make his case to the Committee.

I shall repeat my questions now. In how many cases have a jury been discharged in the past three or four years as a result of so-called complexity? In how many cases in the past few years have a jury been discharged because of the length of a case? In how many cases has it been impossible for a judge to empanel a jury to hear a case? What specific research have the Government done, never mind anybody else, with those who practise week after week—the SFO, the Bar or the judiciary—in serious fraud cases?

If the Minister could provide arguments today drawn from case after case that has gone wrong or been impossible to complete because of length or complexity, we would recognise that he at least has an argument. Those who think carefully about the matter will realise that this clause should not be allowed to remain in the Bill, because it gives the defendant the message that if the prosecution can persuade the court that a case is complex and lengthy, he will lose the right to trial by jury. No matter what the defendant's rights may have been in the past, it is over—that has gone. What powerful case is there for accepting that?

Who is against the Government on the issue? The Law Society and the General Council of the Bar are

against them. Undoubtedly, the Minister has already read the observations made to the Home Affairs Committee. He is keen to pray in aid that Committee when it supports him, which it does not always do, so I hope that when it does not support him, he will concede the point straight away. As a member of that Committee, my hon. Friend the Member for Witney (Mr. Cameron) may have something to say about this, having been there to hear all the evidence.

I suspect that the Select Committee received mixed signals on the subject, but as its report states, the case against the proposal is a case of principle:

''Many claim that jury trial is the 'fairest' form of trial and therefore ought to be preserved for all cases and particularly for serious cases.''

Peter Rook QC said that there is

''no evidence that juries are not understanding the cases.''

He was making the same point as that made by the hon. Member for Southwark, North and Bermondsey, that the Serious Fraud Office has achieved enormous advances, with a conviction rate now running at 86 per cent.

In his more detailed questions and answers, emphasising that it is worth preserving jury trial, Peter Rook QC said:

''there is no evidence that juries do not do a good and dedicated job in relation to serious fraud. In fact it is somewhat ironic that we are sitting here today discussing this issue because the Serious Fraud Office have made enormous advances in the last ten years and, as you may know, the conviction rate for the last few years is running at 86 per cent. There is no evidence that juries are not understanding the cases, of course the normal issue in fraud is dishonesty.''

He continued:

''Of course there is some inconvenience to jurors in very long cases but, again, I would suggest that is a small price to pay. It seems as though juries accept that inconvenience and indeed carry out their duties with great dedication. It is our concern that we should not depart from this important principle of jury trial for all serious offences on grounds of expediency.''

The case has not been made. Amendments have been tabled in an attempt to tighten up the clause, but the Government have rejected them. The matter of principle, however, remains, and plenty of Labour Members have a strong view about the preservation of jury trial and civil liberties. What sort of country are we in if, in relation to a serious, complex fraud case, the state—for it is the state—can say to the people of this country, who form the jury, ''We are not going to let you look at this, because it is too difficult for you and too long''? That is a shameful position and the reason why we should reject the clause.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I, too, hope that the Committee will reject the clause, which will produce a two-tier justice system, in which certain cases will be dealt with in one way and other cases in another way, but as the hon. Member for Woking said, in this case—and this is fundamentally different from what we were discussing on clause 36—at the instigation of the prosecution. From the point of view of the defendant and the public, that will be perceived as stacking the criminal justice system against the defendant. If the prosecution

make their case, the public will not decide the outcome of the trial.

Furthermore, this category is likely to consist of white-collar crime cases—let us be honest about that. The public should be able to judge white-collar crime in the same way that they judge other sorts of crime, and there is no reason why it should not be judged by the same cross-section of the British public. Indeed, it is important that it is seen to be judged in the same way, otherwise it might look as if there is a preferential bias in the system. Complex fraud cases very often involve professional people from the world of business and finance. If experts and lawyers handle such cases, and there are no lay people on the legal tribunal, it will look as if the professional classes are deciding the outcome.

The clause lends itself to the dangers alluded to by the hon. Member for Boston and Skegness and others. We could end up with a system in which justice is decided, but the public do not necessarily know how it was done, because the debate was confined to experts. The great benefit of the jury system is that it requires people to put matters clearly and to summarise their case. We might add that the clause increases the risk of the defendant not understanding the issue, which can be in no one's interests.

One can over-emphasise the burdens on the jury. In reality, jurors work for eight hours a day, and very often less. That is what most people do in their working lives. Although the job is different, people know that they may be called on to do it. It is part of civic responsibility that one takes the straw that one is given. It may be a short straw, and one may do two weeks and a couple of quick trials, or it may be a long straw. However, we are talking about giving up at most six or nine months out of a whole lifetime to do one's civic duty. Jury service is one of the responsibilities of citizenship. It is not only ''fair and reasonable'' and not too big a price to pay, but beneficial to those who do it, just as being on the lay Bench is. Participating in the democratic process is generally an ennobling and improving experience. Although it may be hard to concentrate during a long trial, I have no strong recollection of people protesting that they were less willing to take part in one or that it was less important to do so—people understand their job.

I endorse the point made by the hon. Member for Woking, that the evidence base for the proposals is weak at best, and possibly non-existent. The Minister prayed in aid two cases, but I think that we accept that they come from a previous generation of case management. There will always be one or two cases that are difficult to manage, but there was no great demand for the proposed changes among jurors, members of the public, the press, groups representing judges and the legal profession or anyone else—there was no great pressure for them. The Minister is right to say that the issue has been examined periodically over the years and that it has been around—of course it has—but the case is weaker now than when the Roskill and other inquiries considered it.

The hon. Member for North Down (Lady Hermon) is probably best placed to understand my next point. If

one is looking to instil confidence in the criminal justice system, one should surely look for more lay participation, not less. It would be unhealthy if the treatment of white-collar crime and financial fraud were subject to most criticism. In constituencies such as mine, where the majority are on low incomes and only a small minority on high incomes, we need people to know that those living in the posh flats receive the same justice system as ordinary people, not a system that differentiates and gives those on 10, 20, 30 times the salary a better chance of getting off.

In the famous first royal butler trial, the question arose whether an application for a public interest immunity certificate had been made. The judge had to decide whether certain evidence should be allowed because it had a prejudicial value. In a civil trial, judges often rule on procedural matters and then move on to matters of fact. The great benefit of the system in criminal trials is that when a case goes into session without the jury while legal argument continues, the judge decides on the legal matters and can be appealed to about them, but the jury decides on the facts.

When judges rule that evidence is inadmissible, people find it difficult to believe—it is one of the great fictions that judges and magistrates go through—that it can be put out of their minds altogether when it comes to adjudicating on the facts. Juries sometimes know that arguments about the evidence were conducted in their absence, but only what is entitled to go before the jury does go before it. On matters with as much national significance as a murder trial, we must be careful not to provide another reason for people to feel that unfairness is built into the criminal justice system.

The arguments in favour of changing the jury system are almost non-existent and outdated, and the arguments against are overwhelming. The public have significant confidence in the jury system—more than in Parliament, local government or, sadly, the police—so we tamper with it at our peril. Changing to a two-tier justice system at the instigation of the prosecution risks undermining the wide public confidence in this aspect of the criminal justice system.

Mark Simmonds (Conservative, Boston and Skegness)

I, too, want to speak against the clause. I oppose it for some of the same reasons and for some additional reasons to those already outlined. Fraud is a serious offence that carries extremely heavy penalties, and the jury system provides the fairest way of reaching a correct decision.

My hon. Friend the Member for Woking spoke about a fundamental lack of research by professionals from both within and without the criminal justice system. The Minister referred to previous cases as precedents, as well as to the Auld report, which set out the arguments for and against jury trials, taking a balanced view without coming down on one side or the other.

I shall paraphrase the various arguments set out in the Auld report in favour of jury trials. First, they are a hallowed democratic institution, enshrining citizens' rights in all cases, including serious and complex

frauds. Secondly, the random nature and selection of juries ensures their fairness and independence. Thirdly, in cases of serious and complex fraud, the question is mostly one of dishonesty: the jury have to decide in the context of the complexity of the alleged financial impropriety whether the individual on trial has been dishonest. I see no evidence that juries are failing in their duty to come up with correct solutions. Fourthly, there is no evidence that juries cannot cope with long and complex cases or that their decisions are contrary to the evidence.

Fifthly—a point made by the hon. Member for Southwark, North and Bermondsey—there is openness and public intelligibility if the parties have to accommodate the jury's newness to the subject matter by presenting their cases in simple and easily digestible form. That is a fundamental point, which I made in the debate on clause 36.

There is no evidence that juries have reached incorrect decisions in serious or complex fraud cases. The statistics from the Serious Fraud Office for 1990–2001 have been mentioned before: 86 per cent. of the cases brought by the SFO have resulted in convictions. There does not seem to be a problem in the criminal justice system when serious fraud cases are being discussed.

I should like to add to my earlier comments about judges. What will happen if the prosecution opt for a judge only trial? Will there be a register of judges' interests. The judge may have been an ex-shareholder of Guinness, or his wife or family may have been. Will there be registers of shareholdings and financial interests of all those who may be called to preside over such cases? I suspect that judges would not wish that to be the case or for it to come out in the open.

I am sorry that the hon. Member for Nottingham, North (Mr. Allen) is not here. I agree with some of what he says. It is essential to create confidence in a criminal justice system by simplifying the legal process and the language that is used. That will certainly not be the case where we have two lawyers and a judge who are experts in their particular financial field. We will get into acronyms, jargon and language that the defendant may not understand, never mind the reporters and the members of the public who should be taking an interest in such serious cases. There is a danger of lawyers talking only in their own language and making the system even more incomprehensible.

Like my hon. Friend the Member for Woking, I am concerned that only the prosecution in this instance have the ability to opt for a judge only trial and not the defendant. That is where the fundamental difference between clauses 36 and 37 arises.

Hilary Benn (Labour, Leeds Central)

If the defendant wishes to opt, he can do so.

Mark Simmonds (Conservative, Boston and Skegness)

I thank the Minister for clarifying that.

It seems strange potentially to expunge the right to jury trial in these cases, purely on the basis of the inconvenience and the time it may take up for jurors. There seems to be no evidence that juries cannot be put together for complex fraud cases that may take six

months or longer. There also seems no evidence that juries are reaching incorrect decisions or not understanding the complex issues before them. The Minister needs to explain in far greater detail why the clause needs to be a fundamental part of the Bill. While I have listened to him with great interest, and I thought he performed extremely well on previous clauses, he has not made a convincing case today.

David Cameron (Conservative, Witney)

Like my hon. Friend, I oppose the Government's moves to limit jury trials in complex cases. I should probably start by declaring a sort of interest. My brother is a criminal barrister who specialises in complex fraud cases. He was on the defence team in the Blue Arrow and Guinness cases. I am ashamed to say that he has even defended one or two former parliamentary colleagues who got themselves into trouble. Having said that, however, he also defended one of the Maxwells, so I can say that he does bat for both sides. If members of the Committee ever get into trouble on that front, I can thoroughly recommend him. If the hon. and learned Member for Redcar is not available, I can tell them where to find him.

The issue was discussed by the Home Affairs Committee. I see that the hon. Member for Bradford, West (Mr. Singh) is here. That Committee tries really hard to reach consensus, and we normally discuss things for a long time. On this issue, however, we could not find agreement. I obviously think that the amendment that we were debating was good, because I tabled it, but I want to share with the Committee what it would do, because it sums up the problems with the clause. The amendment stated:

''We do not accept that a convincing case has been made for removing the right of trial by jury from defendants in complex fraud or financial cases. The requirements of justice should come first; practicalities are important, but secondary issues. In complex cases it must be for the defence, prosecution and judge to crystallise and clarify the issues for the jury. Judge only trials would become complex and technical; justice would not be seen to be done and defendants could be convicted at the end of proceedings that neither they nor the public had fully understood. A clear statement from this Committee that the right to trial by jury should be retained may encourage Governments to cease attempts to undermine the jury system.''

I am sorry that that amendment was not accepted and that the Government did not miraculously stop their assault on the jury system, which it would have saved everyone a lot of time.

I would like to reinforce a couple of points that have already been made. I understand that even the most complex cases normally boil down to a few simple points—for instance, whether the company concerned bought its own shares to support its share price, or whether someone had inside information when dealing in shares. The answer is normally yes or no; it is usually an important crunch point, on which the jury have to decide who is telling the truth. The argument that such cases are too complex for juries to understand is wrong.

I think also that the point about justice being seen to be done and being understood is terribly important. I am neither a lawyer nor a member of the Labour

party, so I feel no shame in quoting the Society of Labour Lawyers, which told the Home Affairs Committee:

''Comprehension is also a particular concern. If fraud were allowed to become the preserve of lawyers alone the language and process of such trials would swiftly become incomprehensible to the rest of society.''

That was put extremely well.

Next is the matter of conviction rates, as cited by the hon. Member for Southwark, North and Bermondsey and others. Peter Rook, chairman of the Criminal Bar Association, spoke about the fact that the Serious Fraud Office had had a bad beginning, but that its conviction rate was now 86 per cent. Why, then, are the Government so desperate to have another go at the jury system?

I come to the thin end of the wedge argument. I have never accused the Minister of using it; he is too gentle and nice to introduce any sort of wedge, let alone the thin end of one. I was not a Member when the two previous attempts were made to limit jury trial. We are now dealing with attempt No. 3. On those previous occasions, completely different arguments were advanced about the cost of the jury system, and about delays in the criminal justice system and the fact that everything took too long.

The Government lost those arguments. Suddenly, we now face a completely different set of arguments. We are being asked to have another go at the jury system with arguments that were not advanced on those previous occasions. I know that one is meant to concentrate on the song rather than the singer. However, on this occasion it seems that we are having to concentrate on the whole band—but certainly not the Minister, who is eminently reasonable—and what the Home Office has been trying to get us to do on that front. It is worth examining the motives.

My hon. Friend the Member for Woking put it brilliantly by saying that before accepting the clause we would want the strongest possible evidence in favour of the Government's case that juries find it difficult to sit for that long and, as a result, that the pool of jurors has become reduced. However, we have heard nothing about the number of trials that have come to an end because jurors were discharged. We have not heard that evidence, and we cannot possibly accept the clause until we have that number and can see whether it has been getting worse or better. We need much more evidence for that.

The Minister seemed to be making two points. One was about the effect on jurors reducing the available pool, but we have not seen any evidence for that. The other was about the full criminality not coming out in court, but we are getting an 86 per cent. conviction rate, so full criminality seems to be coming out in most cases. He mentioned two cases. I have not had time to rush off and look them up in the Library or consult lawyers, but from memory, the defendant in the Levitt case was found guilty. One problem was that the sentence that he received was so woefully inadequate that he ended up making toys in a central

London probation workshop where, if he went now, he would probably be joined by a lot of burglars. The sentence was the problem. I cannot remember all the details of Blue Arrow, but I seem to remember that it was in the early days of the Serious Fraud Office, which did not get its ducks in a row or present its case properly. We need more detail on what went wrong in those cases.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The case about full criminality not being presented, which I did not pick up, is undermined by the fact that in many straightforward criminal trials of two or three charges, there have really been 12 matters, which come out only after the trial and before the sentence. We do not need every example of the fraud. If the prosecution has several good cases, it is good enough for a jury. That happens now, day after day, in both complex and non-complex cases.

David Cameron (Conservative, Witney)

Absolutely, and that brings us to the point about complexity. In complex cases, the prosecution have to consider how to boil down the case to explain to the jury in simple terms what the defendant has done wrong, and the defence have to do the same for the opposing case.

I will end on a point of principle. I was concerned that we did not hear a lot about the principle, but my hon. Friend the Member for Woking put it well. I have sat on a jury—many of my colleagues who are barristers will not have had that opportunity—and it is one of the most exciting and interesting things that a member of the public can do. It was just across the road in Marylebone county court. The standard of debate in the jury room, the effort that people put in to try to get it right, and the seriousness with which they took their responsibilities, whether they were old, young, black, white, rich or poor, were impressive. The right to trial by jury is fundamental, particularly for offences that carry long custodial sentences. We are talking about complex and long cases, in which the defendant could go down for a long time. Before we remove the right to trial by jury in those cases, we must hear considerably better arguments than we have heard today.

Dominic Grieve (Conservative, Beaconsfield)

As I spoke at great length on the details of the various amendments, I do not want to take up too much of the Committee's time. I stayed away from debating principles, because I wanted us to look in detail at the clause. As I said, I felt that it contained many inherent flaws and contradictions, and I still believe that. However, there is an issue of principle, which was eloquently presented by my hon. Friends the Members for Witney and for Boston and Skegness. It is one that I cannot get round.

I have not heard one justification for the clause. We have examined the various clauses and will continue to do so, and various different arguments have been advanced. In the first matter that we examined, it was a case of a defendant's choice, and on jury tampering, there was the argument that if we do not make changes, it might mean that we cannot have a trial. However, on this point, there is no credible justification based on objective evidence that the move is necessary other than for the convenience of

prosecuting authorities. There is no other rational justification for it.

My professional experience is that provided that a jury has been properly warned of the likely length of the trial at the time of empanelling, that some unexpected circumstance does not cause the trial to drag on well past the expected end date, and that the case management has been properly done, there is no difficulty in finding a jury of respectable, common-sense people drawn from a broad cross-section of the community who are able and willing to sit through a case.

Indeed, in lengthy cases in which I have been involved, it has been obvious that the jury has got into the trial. The jurors are enjoying the detail of the case and tend to cohere together in a way that one does not often find in a short trial. It is perfectly obvious that if one looks at the jury box, they are taking a credible interest. Should one or two jurors not take an interest, the jury system deals with that problem through the sheer number of those present on the jury. Prejudices or inattention can be ironed out by the number of jurors who take the decision.

There is no rational justification for the clause. It is a massive attack on the principle of jury trial. The defendant does not request a judge only trial; the application is entirely at the behest of the prosecution. While I was out, the Minister said that he could not see how the clause would apply to health and safety trials. However, I am still not persuaded that the way in which the clause has been worded is not such as to allow for quite surprising examples of trials to fall into that category.

In the Port Ramsgate walkway collapse trial, at which I was the junior prosecuting counsel, I assure the Minister that the trial concerned property—the walkway, the quay and the installations. I assure him too that the trial concerned the financial and commercial arrangements, transactions and records pertaining to the way in which that walkway was installed. That was what the whole trial was about. The wording of subsection (5)(a) goes far beyond a fraud trial. I cannot accept that it can be so confined. In those circumstances, what we are doing is unreasonable and unnecessary, and I hope that the Committee will reject the clause.

Mark Francois (Conservative, Rayleigh)

I have only two brief points to make. First, I apologise for my absence from today's earlier deliberations. I was attending a funeral in my constituency of a special and unique man called Brian Weedon, who will be greatly missed. However, I am pleased that I have been able to return to Westminster in sufficient time to be able to vote against this particularly pernicious clause.

Secondly, we were joined in the Public Gallery for part of our deliberations by the hon. Member for Streatham (Keith Hill), the Labour party's Deputy Chief Whip.

James Cran (Conservative, Beverley and Holderness)

Order.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 10, Noes 7.

Clause 38 - Application by prosecution for trial to be

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 256, in

clause 38, page 25, line 12, leave out 'satisfied' and insert 'sure.'.

James Cran (Conservative, Beverley and Holderness)

With this it will be convenient to discuss the following amendments:

No. 209, in

clause 38, page 25, line 14, leave out 'either or both of' and insert 'both'.

No. 210, in

clause 38, page 25, line 16, leave out 'must' and insert 'may'.

No. 247, in

clause 38, page 25, line 18, leave out 'real and present danger' and insert

'there is evidence to satisfy the judge on the balance of probabilities'.

No. 211, in

clause 38, page 25, line 18, leave out 'danger' and insert 'evidence'.

No. 212, in

clause 38, page 25, line 18, after second 'that', insert 'serious'.

No. 248, in

clause 38, page 25, line 25, leave out subsection (6).

No. 213, in

clause 38, page 25, line 27, leave out from 'the' to end of line 29 and insert

'judge is satisfied that there is sufficient evidence indicating that jury tampering will take place.'.

No. 214, in

clause 38, page 25, line 29, at end insert—

'(7) Such an order may not be made unless—

(a) all steps which might reasonably be taken to prevent jury tampering have been taken,

(b) the judge is satisfied that after such steps have been taken conditions (1), (2) and (3) above continue to be met,

(c) the judge is satisfied that such an order will not compromise the defendant's right to a fair trial.'.

Humfrey Malins (Conservative, Woking)

The amendment relates to clause 38, which considers the important and increasing problem of jury tampering.

There are two sides to the argument. One says that we should protect jury trial whatever the cost, and the other that we should do all that we can to prevent jury tampering, and thereby save a lot of money.

It is as well to understand the sophisticated techniques and the determination of those who would tamper with our juries. We should also understand that it costs a lot of money to protect a jury, and that there is a lot more jury tampering than there used to be.

I shall give the Committee an example, which concerns a big drugs case in Liverpool. I believe that these issues particularly affect the inner-city areas, the big metropolises such as Liverpool, Manchester and Birmingham, where the drug culture is strong, and gang warfare prevalent. The drugs case took place not many months ago in Liverpool and lasted for six weeks. On the first day of the judge's summing up, one juror was followed home and offered money to produce a verdict sympathetic to the defendant. He told the judge about it the following day, and the judge said that he would discharge him and that the trial would continue. The next day, two more jurors were followed home, badly threatened, and came in trembling the following day. The jury had to be discharged and a new trial had to start. How much would that trial have cost over six weeks? A parliamentary answer that I received on 10 July 1997 said that the Crown court cost us £7,800 a day: I believe that that has now increased to £9,000. Six weeks of that amount per day equates to £270,000.

Other protection measures have an increasing cost. In the retrial of that drugs case the jury had to be bussed into court; they were picked up in special vehicles from their homes. In a most unusual circumstance, they also were not identified by name. The clerk gave a card numbered 1 to 50 to each of the jury panel and kept another parallel set of cards. When they were being empanelled, the clerk, having shuffled her own pack of cards, called out No. 3, No. 17 or No. 16, for example, rather than calling out John Smith or Fred Brown. That sort of procedure is becoming increasingly prevalent.

In the same court, people smuggle in mobile phones, take photographs of the jurors and send text messages containing the photographs to contacts outside, so that the jurors can be followed home. In the same court and elsewhere, people send text messages from mobile phones smuggled into court about what the witnesses say and what the jurors look like. In another court or the same court a prosecuting barrister was beaten up and could not carry on. That is the background, and it illustrates the problems that we face.

The other side of the coin is to say that, whatever happens, never mind the expense or the worry, we must try to proceed with a jury. That is why the amendment would tighten up subsection (3) so that, rather than saying that when an application is made under subsection (2), the judge must be satisfied that

conditions are fulfilled, it says that the judge should be sure. That is a higher standard. One can be satisfied, on the balance of probabilities, but the standard of being sure is higher.

Other amendments will be spoken to by the hon. Member for Southwark, North and Bermondsey, and there will be further debate on stand part, but I am trying, despite the worrying picture of jury tampering that I outlined a few moments ago, to ensure that the court will proceed with great caution before saying that a case is to be conducted by judge alone. It seems more sensible for a judge to be ''sure'' that conditions are being fulfilled than to be ''satisfied''. The judge can be sure only on the basis of oral evidence heard privately, perhaps—almost certainly—in the presence of counsel for both sides, perhaps in chambers, perhaps in court, but almost certainly in the absence of the press or members of the public. The judge would have to be satisfied on the basis of evidence put before him. By definition, that would be anecdotal, rather as with an application for a search warrant.

A magistrate or district judge granting a warrant has to be content that the information laid before him is true, rather than conducting a deep inquiry into it. He has to take the word of the officer that there is a drugs offence going on at a certain address. Similarly, in the Crown court, the judge will have to hear all evidence. The amendment seeks to protect the position more strongly than the clause does now, by saying that before moving to make such an order, the judge should be sure.

Stephen Hesford (Labour, Wirral West)

This is a short and serious point. If a judge came to the conclusion, on the balance of probabilities, that a case was at serious risk of jury tampering, is the hon. Gentleman saying that it would not be sufficient for him to say, in all conscience, that there was a risk that the case would go pear-shaped? Surely, that would be enough?

Humfrey Malins (Conservative, Woking)

I understand the hon. Gentleman's point, but I would ask him to remember that we are dealing with a situation in which no jury tampering has yet taken place. It is not as though, as in a later clause, jury tampering has occurred. We are considering the beginning of a trial, when somebody is saying to the judge that it is feared that jury tampering will take place. In general, we should fight against the proposition that juries should be replaced by judges.

I can understand the argument that a jury should be replaced by a judge in a case in which jury tampering has taken place. However, if it is argued that a jury should be replaced ay a judge in a case in which it has not taken place, but it is anticipated as somewhere between a possibility and a probability, my point would be that, given the importance of trying to maintain the jury system, and not to buckle under in response to outright threats, the judge should have a high standard of thinking on the issue before making the appropriate order. If the judge thinks that it is possible that there will be jury tampering, that is not necessarily a satisfactory position. If he thinks that it is likely or probable, is that satisfactory? If the judge is

sure, that means that he has reached a conclusion based on evidence that makes him sure, which is no other standard than the jury themselves must observe in the event of their coming to a guilty verdict.

The purpose of the amendment is to tease out from the Government what would be the problem with inserting ''sure'' on the basis that it might cause more jury trials to go ahead, perhaps safely, than might otherwise be the case if the judge were simply to grant a judge only trial if he believed that a case might involve jury tampering. The hon. Gentleman follows my argument, and I hope that he will explore the matter with me.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I want to speak to amendments Nos. 209 to 214. Clauses 38 and 39 deal with the procedure and clause 40 with the consequences of the proposal, which is that, if the criteria concerning jury tampering are met, an application can be made to the court either to continue the trial without a jury or to end the trial and start a new one without a jury. At present, the judge can discharge the jurors or, in the worst-case scenario, he can discharge the jury and there will be a retrial. That allows the trial to continue or a retrial to happen but without the jury present. The amendment explores the criteria and the triggers for that situation; it would amend them to strengthen the threshold and make it a higher hurdle to jump.

I am aware that this is a real live issue from general knowledge and from having lived through many cases personally or having read the reports in my local papers. If people think that their liberty is so important and their drugs and guns activity is so profitable, some of them will resort to almost anything to interfere with the course of justice. The most severe view must be taken of interfering with the criminal justice system, and it is important that people understand that the consequences of being found guilty of doing so are that they will be sent away and locked up. Society must take a clear view about that.

I do not know whether members of the Committee saw a drama-documentary series on ITV about six months ago called ''The Jury'', which was shown on a Sunday night. I commend it to the Minister if he has not seen it. I usually have something better to do on a Sunday night than watch television, but I saw the first programme in the series of three and I was sufficiently taken with it to watch the others. It portrayed a series of issues for the jury in an interesting case, including the intimidation of jurors, and gave an up-to-date, practical demonstration of how pressure can be applied in all sorts of ways.

Amendment No. 209 would ensure that all three conditions set out in the clause are met, not just two. The first condition, in subsection (4), is that

''there is a real and present danger that jury tampering would take place.''

The second condition, in subsection (5), is that

''(a) the danger is such that it would be necessary to provide police protection for the members of the jury hearing the trial, and

(b) the level and duration would be likely to place an excessive burden upon the life of a typical juror.''

Subsection (6) states:

''The third condition is that, notwithstanding any steps (including the provision of police protection) which might reasonably be taken . . . the likelihood that it would take place would be sufficiently high to make it necessary in the interests of justice for the trial to be conducted without a jury.''

If the prosecution apply for a non-jury trial—it is the prosecution who would apply—the Government propose that the judge must be satisfied that the first condition is always met and that either one or both of the second and third conditions are met. Amendment No. 209 seeks simply to ensure that all the conditions are met. Three tests must therefore be passed, which obviously raises the threshold.

Amendment No. 210 is a straightforward amendment that has been tried elsewhere. It would give the judge a discretion, not an obligation, to consider the matter and form his or her own view. Currently, the judge is obliged to make an order. It is very difficult to anticipate circumstances when defining provisions, and it is therefore difficult to give the judge a discretion in the round—an issue that we have already debated. It is better and more appropriate to form a view, which judges would welcome.

I hope that amendment No. 211 will appeal to the Government. As I said, the first condition, as currently defined, is

''that there is real and present danger that jury tampering would take place.''

However, it is difficult to define danger. The amendment proposes that there must be evidence, rather than danger. I must say to the Committee in all honesty that there is a real and present danger of jury tampering in every armed robbery trial in inner London sessions, Southwark Crown court or the Bailey that relates to my borough. That danger is greater the greater the sum and the better known the defendants. However, that is not sufficient. There must be evidence. There may be all the difference in the world between the gangs of yesteryear—the Richardsons, Krays and Frasers, whom one would expect to stop at nothing—and the relatively amateur, or ''starter'' gangs committing their first armed robbery, who might not have deployed this tactic.

I hope that colleagues on both sides will be persuaded that we must do better than saying merely that there is a danger. Otherwise, we cross the first threshold readily and often, which I do not believe was intended. At least, I hope that it was not intended. There should be concrete evidence.

Amendment No. 212 might not be syntactically wonderful, but it is a probing amendment that enables us to ask what constitutes jury tampering. Will the Minister say what he believes jury tampering to be? The amendment triggers the suggestion that the jury tampering is serious. Small things can happen, such as incidents of jostling and verbal abuse if jurors pass the same way as the defendants and their families on the way to court, but I am sure that we would generally agree that that is not jury tampering. We need to know what constitutes jury tampering. There is all the difference in the world between standing outside a juror's home at the end of the day and saying, ''If you

vote for the defendant to be guilty, you won't be in this house any more'', threatening their family, friends and property, and things that are incidental but unpleasant. If, as is quite common, someone's car tyres are let down, their car is scratched or abuse is shouted at them, that is a marginal case. Those things are unacceptable and happen too often, but whether they should trigger the response that we are discussing is debatable.

Amendment No. 213 is in the same vein. It would redraft what appears to be a rather loosely drafted third condition—I mean no disrespect to the draftsperson responsible. In the current phraseology, the third condition is that ''the likelihood that'' jury tampering

''would take place would be sufficiently high to make it necessary in the interests of justice for the trial to be conducted without a jury.''

The proposed alternative would bring in the point that there should be evidence, and provide tighter, better wording. The judge would have to be

''satisfied that there is sufficient evidence indicating that jury tampering will take place.''

That wording is very clear, and I hope that it might commend itself on the basis that the parliamentary draftspeople, although clearly experts in their craft, would be willing to advise Ministers that there might be better formulations, as well as on the basis of the substantive point.

Amendment No. 214 brings us back to a debate that we had before. It would add a final condition in a new subsection (7). The amendment states that an order may not be made unless all steps that might reasonably be taken to prevent jury tampering have been taken, and the judge is satisfied that after such steps have been taken conditions continue to be met, and that there will not be prejudice to a fair trial.

These are not dogmatic or theological suggestions; they are simply designed to ensure that the process is clear. It should be about what we can do without changing the jury trial principle. Normally, that means juror protection, and sometimes other things. If we have taken those reasonable steps, let us have reasonable thresholds.

The final issue is whether there will still be a fair trial. We shall come to this under clause stand part, but there are alternatives that fall short of aborting a jury trial. One is to give particular protection to jurors. That is often tried, and we know from evidence to the Home Affairs Committee about the cost to police of providing that security. The second, twofold option is to take steps in court to make jury tampering much more difficult, although that does not deal with the point made by the hon. Member for Woking that once jurors have been identified by name, it is easier to track them down. In addition, for a court sitting in Hereford, for example, there would be a smaller pool of people and they would know one another more than would be the case in Snaresbrook.

However, there are other possibilities, which I have raised with the Minister's colleagues. One could ensure that the trial did not take place such that the jurors

were in sight of the public gallery. One of the most common ways in which someone can intimidate or try to nobble a juror and to interfere in the process is simply by eyeballing them and then standing as they leave the court in order to be seen. In that way, wherever the juror goes, someone seems to be following them. The situation might be worse, in that the person might follow the juror home, but the juror is still perpetually being watched in court, and that happens commonly.

The most extreme possibility is to have a court without the public in it. That would be unusual, but I believe that there is a strong argument for saying in an exceptional case that it will carry on in camera. There is a precedent for that in security cases and special tribunals. It is not ideal, but it must be more ideal than getting rid of the jury. If one can catch, prosecute and convict people who try jury tampering, one gets a result.

Stephen Hesford (Labour, Wirral West)

If the hon. Gentleman was a juror who fully realised that the judge had taken the extraordinary step of clearing the courtroom and ordering that the trial proceed in camera because someone was trying to get at the jurors, would not he then be more likely to feel under pressure?

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I understand the point. I have never served on a jury, though I have often sat in courts in support of people, families or witnesses, and not as a lawyer. I think that the fear is much less in those circumstances than it is when one thinks that there are people monitoring one's every movement. Although one's movements may still be being monitored outside the court, one feels more protected if, while one is doing one's business on the jury, one does not have four, six or eight pairs of eyes peering down on one.

If jurors are in an armed robbery trial, a serious drugs import case, or a multi-million pound fraud case, they know that they will be under big pressure and that they can ask for juror protection. Many people go through that. Many take and understand the pressure, and the court will help them to deal with it appropriately.

Dominic Grieve (Conservative, Beaconsfield)

Such an absolutist position is not necessary. I think that the judge, in his discretion, can ensure that the public are not admitted, but can allow accredited journalists to attend, so that the matter is still reported. I think that that is quite within the judge's powers, and if it is not, we should consider that.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Indeed. I did not intend to suggest that we should automatically go the whole hog. There are also cases in which reporting restrictions are not lifted, so the matter can be managed in other ways. There is a whole tariff or sequence of options. With the amendments, I intend to ensure that there is a much clearer set of hurdles, irrespective of the view that the Committee takes about the proposals as a whole.

There is a danger that, if we legislate without having tried alternatives first or made things more difficult, we are giving in. There is an argument that, if one legislates to allow non-jury trials in such circumstances—at a threshold that I judge to be relatively low—one is giving in to the intimidation far

too easily. That cannot be right. If people realise that they can regularly force non-jury trials, it will look as though the thugs are winning and the criminal justice system is not. Again, I bow to the recent experience in Northern Ireland in that respect.

Paul Stinchcombe (Labour, Wellingborough)

I wonder whether the hon. Gentleman is right that we are giving in too easily. If those lesser options met the concern of jury tampering, so that it was not necessary to provide an unreasonable level of police protection, the jury would not have to be discharged.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

Of course the clause details a set of preconditions. I appreciate that, and have argued that the preconditions ought to be higher. I do not say that there is a series of steps that prevent us from going down that route automatically. However, some of the steps are pretty loosely drawn. The hon. Member for Woking criticised the fact that everything is predicated on possibility, not on actuality. That is the weakness. There is a high possibility that such trials in south London will have jury tampering. If one goes only on where there is or has been evidence, one reduces that number considerably.

Stephen Hesford (Labour, Wirral West)

Does the hon. Gentleman accept that the Northern Ireland example goes entirely against his argument? Far from letting the criminals and others win, in Northern Ireland, there was a point at which they were told, ''You cannot win. There will be a trial. Somebody will have a court hearing. People will go on trial, there will be a verdict, and people will go to prison.'' In Northern Ireland, it sent a message to the community that people will not beat the system to a standstill. It did the reverse. We can recapture the ground. Even if criminals in those circumstances try to tamper with the jury, the system will still beat them because there is the option of a non-jury trial.

James Cran (Conservative, Beverley and Holderness)

Order. That is far too long an intervention.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

The hon. Member for North Down may want to intervene, but it seems to me that the change in the law in Northern Ireland was in exceptional circumstances. Draconian emergency powers were passed across the board, contrary to all our natural traditions. They were time-limited and had to come back to Parliament to be re-enacted. We absolutely did not legislate, and never have in Northern Ireland, for indefinite non-jury trial. We had anxious debates on renewal orders to extend what was only ever intended to be temporary legislation.

This is not temporary legislation. Non-jury trials were introduced in Northern Ireland because there was a civil emergency there; there is no civil emergency, thank God, in England, Wales or Scotland. There is now a far less serious civil emergency in Northern Ireland. Indeed, Northern Ireland legislation has changed to remove many of those emergency powers, and the anti-terrorism provisions that currently operate in Great Britain are for exceptional limited powers for limited periods. They are subject to renewal orders that my colleagues and I forced the Government to accept in the last Parliament.

Sylvia Hermon (UUP, North Down)

I apologise to the Committee for my absence in the early part of the

afternoon; it was a rare occasion when the Ulster Unionist party was in on Opposition day, and an even rarer occasion when we talked about education rather than decommissioning.

Unfortunately, the consequence of the Diplock courts in Northern Ireland was to undermine the confidence of a large section of the community in the independence of the judiciary. Reform of that system was specifically written into the Belfast agreement to rebuild the confidence of the nationalist, Catholic community in the justice system. It was a very serious problem in Northern Ireland.

Simon Hughes (Liberal Democrat, North Southwark and Bermondsey)

I defer, inevitably and happily, to the hon. Lady, who has a lifetime's experience in the matter. I hope that the hon. Member for Wirral, West will talk to her about it. I have been in Northern Ireland often and have spoken to the Human Rights Commission and to others there who argue that going down that road undermines confidence. Of course a judge can be more easily protected than juries, but that makes judges even more remote. It makes them even more likely to be targets. It removes any sense of democratic process. We must be careful. Regularly holding non-jury trials in south London or Liverpool or Birmingham or Manchester would send out the message that we were unwisely eating away at the principle of jury trial.

I hope that some or all of the amendments will commend themselves to the Minister.

Dominic Grieve (Conservative, Beaconsfield)

As my hon. Friend the Member for Woking made clear, this clause raises serious issues. The rule of law must be maintained. However, if the rule of law cannot be maintained because it is not possible to get a verdict from the jury because they have been intimidated, an alternative means of trying somebody has—has—to be used.

That is exactly what happened in Northern Ireland. The hon. Member for North Down will correct me if I am wrong, but the problem was not only one of intimidation; in respect of offences linked to sectarian violence, it was unfortunately impossible in certain areas to obtain juries who were not too influenced by the climate of sectarianism to return a true verdict, whether or not they had been intimated. The problem went beyond that of jury tampering; it was difficult in certain circumstances to find juries who would be fair and impartial, which is a slightly graver problem than the one that we have here.

My first concern is to put the problem in proportion. I would be interested if the Minister were to help us by telling us the extent to which jury trials in England and Wales are being abandoned because of jury tampering. In addition, we need information on the extent to which tampering occurs in retrials, despite the necessary protections against tampering that are in place, because it makes the retrials impossible.

Clauses 38 and 40 are intimately linked, and we shall have to consider both because they raise different

issues. However, clause 40 may be justified and clause 38 may not—or they may both be necessary. I have had experience of jury tampering—it certainly used to happen during my early days at the Bar. At its most banal, it takes the form of the juror being approach outside the court by someone who, out of the blue, says about the defendant, ''He's a good lad, you know.'' That was a piece of jury tampering, the jury were discharged and the case started again. That is one end of the scale. At the other end are attacks on jurors' property or vehicles, or threats to kill them. Again, we need to hear from the Minister and the Home Office about the extent of tampering, and whether it is at one end of that scale or the other. Upon that will depend the sort of measures taken to address the problem.

There has been some discussion, which we need to continue, about what is needed. Since my early days at the Bar, when accosting took place outside the court, with the phrase, ''He's a good lad, you know,'' and sometimes the offer of a tenner, a lot has changed. For instance, the way in which juries are empanelled has changed, as has where they sit in court, how they leave court, and the entrances and exits that they use.

If the court authorities wish to have an anonymous jury, their entry into court must be organised in such a way that no one can see them come in or go out, and no one will know where they come from. They will be bussed in from another area that, in a large city, is likely to be sufficiently large for them to get lost, and they will be so seated in court that they are not visible to the public gallery—or if necessary, the public gallery can be cleared. It is possible to have a jury that, to all intents and purposes, is almost incapable of being tampered with. If tampering is taking place, I would be interested to know how it is being achieved. Again, we need the information on which to base our judgment. I am perfectly prepared to support a clause of this kind if what is presented for the Committee's scrutiny it is factually justified.

My concern about clause 38, which is underlined by the amendments, is that it seems in one respect to be unusual: it is a pre-emptive strike. On what basis is that strike to be carried out? What is the evidential basis to justify it? One only has to read clause 40 to see that, in the hands of a slightly unscrupulous or worried prosecutor, it would be a most powerful tool for depriving a defendant of the protection of a jury trial; it has no rational or justifiable basis whatever. In this instance, it contrasts with clause 40, under which at least jury tampering will have happened: here it will not have happened. If someone is accused of being a member of a nasty gang, it does not necessarily mean that jury tampering will occur but, like the hon. Member for Southwark, North and Bermondsey, I fear that that is exactly what will happen.

Any case with an background of intimidation, or involving intimidatory individuals, will immediately fall under these provisions. Because it is never possible to be 100 per cent. sure that jury tampering will not occur, pressure will inevitably be exerted towards having trial by judge alone, and we must be careful to prevent that. I presume that the Government's intention is to preserve jury trial as far as possible,

but I fear that this provision will unintentionally lead to an unsatisfactory outcome for insufficient reason.

Hilary Benn (Labour, Leeds Central)

Is not the hon. Gentleman's concern met by the requirement that the judge—we have to trust him—must be satisfied about the real and present danger that jury tampering may take place. That high test was inserted into the clause to meet the very point that the hon. Gentleman makes.

Dominic Grieve (Conservative, Beaconsfield)

That is indeed a key phrase. The amendment that would have altered it was a probing amendment to elicit discussion about what ''real and present danger'' means. It is not a term of art, so I assume that it is accorded its ordinary natural meaning. At what level does ''real'' danger kick in? Even a real danger could be slight, and ''present'' means simply that it exists at that time. I am not convinced that the words ''real and present danger'' constitute an adequate safeguard. I accept that the judiciary wants to protect the interests of defendants, but judges can be sloppy or lazy, or have other human foibles and faults.

In such cases, judges are inevitably presented with a one-sided argument. All the defence counsel can do is say that it will not happen. Perhaps he could say, ''My client has 65 previous convictions, and each time he appeared in the Crown Court, it was never suggested that this had happened before.'' That would be the highlight of his presentation. Beyond that, the judge will be presented with police hearsay intelligence—that is what it amounts to—arguing that their estimation of the defendant and his associates is so low that they are the sort of people likely to engage in jury tampering. They might even argue that defendant X's first cousin three times removed was involved in jury tampering five years earlier. I am sorry to tell the Minister that that is what we are likely to get.

Vera Baird (Labour, Redcar)

I am also concerned about the prosecution or the police whispering into the judge's ear intelligence that cannot be challenged in any way. I note that clause 39 requires the process to be undergone at a preparatory hearing and that the parties have to be given an opportunity to make representations, but that is not useful without evidence pertaining to the other side's reply. It is a difficult conundrum to resolve without some sort of counsel—not the defendant's counsel—to represent the defendant and argue his position in the public interest. The problem of hearsay intelligence will, without some protective mechanism, represent a real difficulty.

Dominic Grieve (Conservative, Beaconsfield)

I must point out that it would have been possible to table other amendments and try to weave them in; one such amendment could have provided that no one should be denied jury trial on the basis set out in the clause if there has been no previous case of tampering connected with him. I suggest that simply as an example; at least something concrete would be available to go on, with regard to that individual. It might sometimes produce unfairness, but at least such an amendment would be something cogent.

The provision is similar to those that we passed after the Omagh bombings, which were about

convicting someone, or doing something to their detriment, on the say-so of intelligence. It worries me, because the defence will be in a poor position to cope reasonably with the assertions made in such a case. There is nothing concrete in the provision to provide a trigger mechanism, such as that jury tampering has happened previously, or happened four times, say, in connection with a given defendant. In that case, it would be possible to present the evidence, which could not be denied. Both sides would know that it was valid—but the present provision means that police intelligence can be used to persuade the judge that there is a problem.

The other aspect of the matter is the idea that a jury trial would be taking place because the defendant was pleading not guilty. We talk in this country about trial by tabloid media; using the clause would send out a publicity signal about the nastiness of the defendant, about his being a lower form of animal life, about the fact that the police know him as an extremely bad lot, and about the fact that he must have loads of previous. That is very bad.

The application under the clause would have to be kept from potential jurors. It would have to be done in camera. However, the damage would be done, and the day the trial began without a jury, the press would presumably be free to comment on it: ''He was denied jury trial.'' Presumably there would be no reporting restrictions on that fact.

Stephen Hesford (Labour, Wirral West)

In practice, would not it work in this way: that the thinner or softer the whisper in the judge's ear, the less likely he would be to be satisfied as to the second or third conditions? The softer the whisper, the less one can envisage subsections (5) or (6) applying.

Dominic Grieve (Conservative, Beaconsfield)

I accept that there may only be a whisper, but what evidence would there be? Let us be practical. Let us imagine that a gangland killing takes place in south London. The police say, ''This is a gangland case. It involves guns and these are the defendants' previous convictions''—although those may be nothing to do with jury tampering. ''We know they have a reputation for violence, as do their associates.'' Meanwhile the people concerned say that they are completely innocent. The police would say, ''Our reasons for wanting a trial without jury are that it will be difficult to protect jurors.''

Going by the criteria in the clause a judge presented with that evidence would, I think, decide that there was a real and present danger. The sort of account that I have given is all that will need to be said to deprive someone of jury trial. What else can be said, unless there is evidence that jury tampering has already happened on a previous occasion? How can the defendants counter that? Indeed, I suspect that there would be procedural problems arising from the police telling the judge that while they had all sorts of information, they would have difficulty telling him about some of it.

John Mann (Labour, Bassetlaw)

I presume, by the same logic, that the hon. Gentleman would rule out the proposals that have been floated for an in-camera

session with a jury, precisely because of the possibility that that would suggest a level of guilt to the jury.

Dominic Grieve (Conservative, Beaconsfield)

I take the hon. Gentleman's point. In-camera trials may present difficulties. As I said in my intervention on the hon. Member for Southwark, North and Bermondsey, it might not be necessary for the court to be completely empty in an in-camera trial. I can see circumstances in which, for instance, accredited journalists could be allowed to report the trial without the defendant's relatives and everyone else coming into the public gallery. The jury might then not notice the difference.

I am simply putting out that idea. There are a number of creative ways of dealing with the problem. In many cases in which I have been involved, one would be surprised at how few people are in the public gallery—it is often deserted. In the early part of the 20th century trial by jury was a form of public entertainment. Nowadays people can watch television, and following jury trials is not necessarily the most exciting thing they can do, although I accept that a trial with a high public profile might pose problems.

That might be a balancing factor, because the defence team may decide that they prefer to have a jury trial with the public gallery cleared. What worries me about clause 38 is that it is a one-sided argument in which the defence team are at a disadvantage in countering the application. That is what makes it so different in quality from clause 40—which we shall need to consider separately—where at least one can say, ''We have tried jury trial and it has been a failure, now justice must take its course. There are clear problems, someone has had their house riddled with machine gun bullets. The idea that we can proceed with a jury trial even with protection seems unrealistic. This is the sort of exception where we must apparently proclaim trial by judge alone''. That makes coherent sense to me, even though I want to see jury trial preserved as much as possible.

Once this provision is on the statute book, any trial involving difficult defendants with, say, a reputation for violence but not necessarily any reputation for jury tampering, will be taken away from juries altogether. I am mindful of what the Minister is trying to achieve, but I believe that if we removed clause 38 and left in clause 40, suitably amended, we would be providing sufficient protection. If there are examples in which that does not work, we could always revisit the issue in subsequent legislation.

As clause 38 stands, we are suddenly moving in a direction that will greatly reduce the access of certain defendants to trial by jury, which worries me. It will be difficult for judges to do anything other than accede to prosecution requests that will inevitably be based on hearsay, intelligence and anecdote. There will be few cases in which that does not apply. I hope the Committee will consider my amendments, but I accept that they are probing amendments. We may have had a stand part debate, but if it has shortened matters, so be it.

Clause 38 is unjustified. If the Minister wants to justify it then I beg him to produce the statistical evidential backing necessary to support it. Nothing I have seen so far does so. The clause raises serious implications for the continuation of jury trial in a large number of cases. It is potentially very unfair. I suspect that human rights applications will be made about what the judge has been told, what material has been made available to the defence, and on what material evidence the policeman has come to say his party piece. That is all undesirable. Clause 40 on its own may provide the necessary protection.

Mark Simmonds (Conservative, Boston and Skegness)

I want to speak to the amendments tabled by my hon. Friends. Like them, I have concerns about clause 38. It is clear from what has been said that there are examples of severe jury tampering. However, one of the bases on which the law should be changed is the production of evidence to show that the changes set out in the clause would significantly reduce jury tampering. I want to reiterate the point that my hon. Friend the Member for Beaconsfield put to the Minister. If he can provide us with the statistics, it would greatly help us to decide whether the clause should be in or out of the Bill. How many trials, for example, are subject to jury tampering? How frequently do they occur? How many retrials take place? How many retrials are subject to secondary jury tampering? If defendants' fundamental rights are to be taken away, there must be a firm evidence base on which to do so.

My second point relates to the phrase ''real and present danger'', about which my hon. Friend the Member for Beaconsfield and the hon. Member for Southwark, North and Bermondsey spoke eloquently. Almost all serious organised crime trials could come within the remit of the clause, so we are potentially removing the right to trial by jury from almost everyone who is accused of serious organised crime. I have great problems with that.

Thirdly, I have a specific question to which there may be an easy answer. On whose information would the jury be suspended? Would it be that of the investigating officer? His perception may be that it is in his interest to transfer the trial from a jury to a judge because he stands a greater chance of getting a conviction. Again, I have a problem with that.

Finally, can the Minister explain how the defendant will receive a fair trial from a judge who has concluded that he is the sort of person who may interfere or organise interference with juries? That is a paradox, and it must be addressed.

Vera Baird (Labour, Redcar)

I have one or two quick questions for the Minister, and I hope that he will be able to assist me. As regards the real and present danger provision, I do not follow Opposition Members for one minute in suggesting that there should be a very high standard of proof. It is very important to protect jurors and to take action as soon as there is a risk of jury tampering. None of that troubles me, but I am troubled by what happens when there is some such perceived risk. How is it determined that there is a risk?

I would like to be assured that, where practical, every other option will be considered before the

provision in the clause is implemented. The difficulty is that this is the only provision in statute that deals with jury tampering. Usually, any threat is dealt with under the judge's jurisdiction, as part of his responsibility to ensure a fair trial. He might, for example, consider bussing people in from elsewhere so that they would not need protection. He might also consider moving the trial away from the present location if there are limits to the outreach of the likely tampering. Equally, it has been suggested that limits could be placed on public access, and that only the accredited press should be allowed in. All those possibilities should be exhausted before the provisions in the clause are triggered. My fear, however, is that those far better possibilities would not be acted on, because this is the only provision in statute. I ask the Minister to assure me that the Government intend that all those possibilities should be tried first, and that clause 38 should be used as a last resort.

Once those possibilities have been tried, the question arises as to how the judge decides that the conditions in the clause have been met. There is obviously an inherent difficulty in passing to the defendant the police intelligence that has given rise to concern, and there is a danger that the provisions will be abused. If the police wanted someone badly enough, there would be a temptation to rely heavily on evidence, such as hearsay, that they might not otherwise rely on. They would get rid of the uncertainty of a jury verdict, and they would have a judge whose predisposition was against the defendant. I make no specific accusations or allegations, but there is an obvious danger of that happening.

How can we ensure that the judge properly considers the crossing of those thresholds without the danger of abuse? If it is not practical for the defence to be told the information, I wonder if there is any possibility of introducing something analogous to a public interest immunity hearing. In such cases, intelligence or similar information that cannot realistically be disclosed to the defence is heard by the judge in the presence of the prosecution and a public interest counsel, a representative of the defendant who does not represent the defendant—that is probably as clear as mud. It is someone who is not instructed by the defendant and does not have a duty to pass on information to the defendant, as counsel ordinarily would have, but who has the job of defending the defendant's interests and ensuring that, if the threshold is crossed, it is done fairly.

If jurors are to be put in danger, and if the only way to keep them out of danger is massively to interfere with their lives for a long time—even then, the danger clearly remains—there seems to be little option but to take drastic measures. I am anxious that drastic measures should be taken only as a last resort and on a completely fair basis. I seek reassurance on that from the Minister.

Hilary Benn (Labour, Leeds Central)

We have had a good debate on the amendments and on the clause. Clause 38 and its companion clause, clause 40, which we shall discuss in due course, are intended to deal with what the Committee has acknowledged is a serious problem. I do not need to say any more about that, because the

hon. Member for Woking spoke with insight and authority when he described, in graphic terms, precisely the problem that we are talking about.

I have been asked what the phrase ''jury tampering'' means. In a sense, we have heard the answer. It clearly includes actual or attempted harm or threat to, or intimidation or bribery of, a jury or any of its members, and it could include improper approaches to a juror's family or friends and threats to a juror's property. The law currently takes a serious view of jury tampering. I submit that it is a serious problem, which must be dealt with extremely firmly because of the threat that it poses to the integrity of the whole criminal justice system.

As we have heard, the court can order police protection when it considers that there is a serious risk that jurors may be the subject of intimidation. The type and level of protection will vary. In a handful of cases each year, between six and 10 jurors undergo the stress and intrusion of 24-hour police protection, with officers accompanying them everywhere inside the courtroom and in what remains of their private lives. Anecdotal evidence indicates that jurors suffer considerable strain when placed under that protection, for obvious reasons. Their privacy is disrupted and their normal activities are curtailed.

Research by Merseyside police suggests that, in a few cases, jury protection measures, such as balloting juries rather than reading out their names in court—a process described by the hon. Member for Woking—are ineffective. Interviews have been conducted with jurors who served on a trial that collapsed as a result of improper approaches to jurors. I am aware of the particular case to which the hon. Gentleman referred from a conversation that I had with a recorder in Liverpool. I asked him about that.

Humfrey Malins (Conservative, Woking)

So did I.

Hilary Benn (Labour, Leeds Central)

There we are: perhaps it was at the same event. Interviews with jurors who had served on a trial that had collapsed as a result of improper approaches to three jury members revealed that those jurors had significant concerns for their safety. They suffered fear, stress, loss of sleep and serious interference with their daily lives. They also expressed concern about court security.

In cases in which the nature and extent of the jury tampering threatens the fairness of a trial, the courts currently have no option other than to discharge the jury and terminate the trial. It is unacceptable that trials should be wrecked and due process subverted in that way. That does not serve the interests of justice. We cannot expect members of the public who have given up their time to serve on a jury to undergo the stress, anxiety and fear of intimidation that such protection involves. That is the purpose of subsection (5).

Amendment No. 256 concerns ''sure'' versus ''satisfied''. I am doubtful as to whether there is a real difference in the meaning. ''Satisfied'' is a standard form of wording, as the hon. Member for Woking will know, to indicate a requirement for a court to form a view on a point that is essentially a

matter of judgment. I am not persuaded of the case for departing from that. It could be argued that the flavour of absolute certainty that the amendment tries to convey is unattainable. Nobody can be certain about the future. To be satisfied of the matters that have been set out is all that can be asked.

Humfrey Malins (Conservative, Woking)

I can think of no legal tome in which the word ''satisfied'' is used on its own. If the Minister can, I shall be pleased to hear it. There is no flavour of absolute certainty, it is simply the word ''sure''. Where, in legal tomes, is the word ''satisfied'' used?

Hilary Benn (Labour, Leeds Central)

I bow to the hon. Gentleman's far greater knowledge of legal tomes. However, the term ''satisfied'' is used regularly in legislation. Ministers have to be satisfied on a wide variety of things in exercising their functions under legislation. Amendment No. 209 would confine the test to a situation in which both the second and the third conditions have been met. I am not persuaded of the argument because I think that it is right to consider the second condition on its own, in addition to the first one, which is that

''there is real and present danger that jury tampering would take place.''

I emphasise ''would take place'', not might take place. I shall come on to the consideration that the judge would have to give to the arguments in deciding that. I am not persuaded of the case for combining the two.

Amendment No. 210 is about ''may'' versus ''must'', and I refer the hon. Gentleman to the argument that I advanced in response to the previous debate. As for amendment No. 212, I think that I have covered the expression ''jury tampering''. Amendment No. 247 seems to be an inappropriate way in which to deal with the risk of future events. A future event is not really susceptible to proof as such, but to evaluation. As hon. Members might be aware, the language of ''real and present danger'' echoes the test currently used in practice when considering whether police protection should be ordered in respect of a jury.

In answer to the questions that have been raised about the evidence, I would say that the judge must be satisfied on the basis of evidence that jury tampering

would take place. That evidence would have to be considered—decisions cannot be made on the basis of a whisper in the ear—and the defence would be able to see the evidence, subject to public interest immunity considerations. On the argument about the whisper, I would contend that clause 38 needs to be read in conjunction with clause 40. In relation to clause 38, in so far as it is argued that there is an incentive for the prosecution to try to get rid of jury trial by whispering, if they do not do that and they have got it wrong and jury tampering occurs, the protection of clause 40 kicks in and the attempt to subvert jury trial will have been prevented. As for the defendants, the hon. Member for Southwark, North and Bermondsey argued that we would end up with all these cases being considered without juries. What advantage would tampering—

It being ten minutes to Seven o'clock, The Chairman proceeded to put forthwith the Question already proposed from the Chair.

Amendment negatived.

The Chairman then proceeded to put forthwith the Question necessary to dispose of the business to be concluded at that time.

Question put, That clauses 38 to 48 ordered to stand part of the Bill:—

The Committee divided: Ayes 12, Noes 8.