I beg to move amendment No. 256, in

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

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.'.

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.

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?

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.

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.

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?

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.

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.

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.

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.

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.

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.

Order. That is far too long an intervention.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

So did I.

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.

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?

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.

Question accordingly agreed to.

Clauses 38 to 48 ordered to stand part of the Bill.

Adjourned at eight minutes to Seven o'clock till Thursday 16 January at ten minutes past Nine o'clock.