Question proposed [this day], That the clause stand part of the Bill.

Question again proposed.

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.

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.

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.

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.

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—

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.

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.

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.

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.

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.

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.

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—

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.

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.

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

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.

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.

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.

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.

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.

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.

Question accordingly agreed to.

Clause 36 ordered to stand part of the Bill.