Coroners and Justice Bill

I understand the point that the hon. Gentleman is making. One could argue that those decisions should be made ab initio by the court, although I do not. The court will make the decision, but someone has to trigger the process—the court cannot start it of its own volition—by saying that there is a real problem; it could be the prosecution. There comes a point where an application is made to the court for it to make a decision about whether it is really essential—necessary—to dispense with a jury or to have other measures. At that point, the process set out in amendment 97 operates. As hon. Members on both sides of the House will see, it says:""The judge holding an inquest as part of a certified investigation must hold it without a jury if…there is a protected matter that would need to be revealed to the jury…in order for the jury to be able properly to discharge its duty"" or""to avoid a breach of…Convention rights"" and, under limb 2,""the judge is satisfied that it is necessary to hold the inquest without a jury in order to avoid the matter being made public or unlawfully disclosed."" It is the judge who has to be satisfied. The next limb talks about circumstances in which the judge operates with a jury. The Bill plainly anticipates that it is for the judge to determine whether this is necessary. There is no way that any sane Secretary of State would, for trivial reasons—or for reasons of embarrassment to the Government, to pick up on the point made by the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd)—sign an application and make a certificate only to have his head scrubbed by the learned judge for coming forward with an application that was trivial and unfounded. Applications will be made by the Secretary of State where he or she believes that it is necessary not to have a jury but the court comes to a different decision. I very much hope that that will happen, and the Secretary of State is put to proof. The court will anxiously examine whether there are any other measures short of dispensing with a jury that could meet the requirements of the law. One of the options that the court could consider is the so-called gisting of secret evidence to be put before the jury. Gisting, whereby the gist of secret evidence is summarised, has been used on several occasions; I understand that it was used in the de Menezes case. Some argue that if the de Menezes case proceeded satisfactorily without dispensing with a jury, that could apply in all cases. There may be cases—we think that there is one at the moment—where it is likely to be the judgment, on application to the court by the Secretary of State, that dispensing with a jury is necessary. The de Menezes case shows that the courts have been ingenious and imaginative in setting down certain conditions by which highly sensitive information is protected and, none the less, the jury is able to get to the full facts. One of the processes for that is the gisting of such protected matters. Under this measure, there is no question but that a certificate would be signed and there would then be an application to the court. It is the Secretary of State who is put to proof to make his or her case. I understand all the arguments made in favour of juries being used in these cases. The judge would, quite properly, lean over backwards to see whether it is possible to meet the concerns of the Secretary of State without having to dispense with a jury. Only in very exceptional cases—they would be few and far between, but they may arise—would the judge come to the view that a jury should be dispensed with.