The jury’s out

Plans to limit trial by jury have been dogged by controversy from the start, facing particularly harsh criticism from the Bar. Lawyer 2B asks the Government to defend its proposals and the Bar to justify its position. You decide…

The case for…
Timothy Barnes QC, Seven Bedford Row

The idea that we should have a simple and definitive offence of fraud in place of the current rag-bag of offences is one which I welcome. Other methods for the more effective presentation and trial of fraud cases, such as a greater use of video-link evidence, the possible imposition of timetables for various stages of the case and the abolition of the hearsay rule in criminal trials, are all ideas with much to be said for them. Open debate could well result in important legislative changes.

But once again the debate over the proposals in the recent Government white paper are obscured and undermined by the proposal (yet again) to eliminate trial by jury in fraud trials. Those who oppose the idea are portrayed, broadly, as self-interested lawyers with a vested interest in the current system. I do not accept that criticism. After some 30 years of practising criminal law, of which the greater part since taking silk has been in the prosecution and defence of fraud cases, I am a strong believer in the effectiveness and fairness of the present jury system in fraud cases, and it is possible to pr袩s my reasons under the following heads.

The assumption that where a jury acquits in a fraud trial justice has not been served must be refuted. The concept that a ‘not guilty’ verdict can be equated with a miscarriage of justice seems to permeate this Government’s thinking in relation to the criminal justice system. It must be deeply offensive to the jury, which can take months considering the evidence, listening to counsels’ speeches and the judge’s summing up. There is no evidence that juries in fraud cases are unduly lenient in their verdicts.

Where there is a ‘not guilty’ verdict, in my experience there are good reasons, based on the detail of the case, for such an outcome. Blame an incompetent prosecutor or witnesses who fail to come ‘up to proof’, but not the jury.

If you abolish trial by jury you immediately undermine public confidence in the criminal justice system. There are not many aspects of that system which command such confidence, but the jury is one of them. I appreciate that under the Government proposals judges will have to give reasons for their verdicts, but is it seriously suggested that in issues where dishonesty is the central issue, a judge’s reasoned judgment will carry the same weight in the public mind as the collective decision of 12 independent members of the public?

The assumption that fraud cases are too complex for a lay jury is another regularly repeated canard. The understanding of such a case is dependent upon a prosecutor who has mastered the detail of the case and a judge who has sufficient understanding and confidence to ‘block off’ irrelevant lines of cross-examination. However esoteric the detail of the fraud, it can so often be reduced to simple concepts: D pledged securities he did not possess; he carried on the business when he knew that it was bust; he misused information which he received in confidence for his own financial gain. At the heart of every fraud case is the stark question: has the prosecution proved that he was dishonest? That is a jury question and requires a jury’s verdict.

Finally, there is the argument that those who oppose the abolition of jury trials are motivated by self-interest. I find this a deeply offensive slur and one without foundation. Most of us like myself who live in London would not choose to spend upwards of a year conducting fraud trials in Nottingham or Bristol (as has been my lot). There is other work to be done. It is also a slur on trial judges who have full case management powers and should be encouraged to be more proactive in the running of fraud trials, so as to cut irrelevance.

There is much to be done to make fraud trials simpler and quicker. Let us concentrate on the practical steps that may achieve those objectives. But leave juries out of the debate.

The law as it stands
William Redgrave, Seven Bedford Row

Proposals to limit the right to jury trial have been floated in various forms over the last few years. Although plans for a widespread cut in jury trials have been sidelined for now, one area where change is very much in the air is in fraud cases.

The Criminal Justice Bill, published last month, proposes an end to juries in some fraud cases. Although the Government insists that “jury trial is and should be the norm”, the bill envisages judge-alone trials in some complex or lengthy trials on commercial or financial topics where the burdens on a typical juror would be excessive. It will also give defendants the right to request a judge-alone trial.

The management of fraud trials has been under review by various commissions and governments for decades. Fraud trials are generally much longer and more expensive than other types of trial since they often involve lengthy consideration of documentation and accountancy evidence.

There has long been concern at the costs involved, both in legal fees and court expenses – particularly when long cases end in acquittals despite what was thought a strong case. There have been numerous high-profile acquittals in cases lasting many months and costing tens of millions of pounds. The potential strain on judges, juries and witnesses is an obvious problem.

The three main concerns about the use of juries in fraud trials are:
Jury trials take longer because of the need to convey complex or unfamiliar factual and perhaps legal issues, without the ability to ask the jury whether they understand or not.

Many people can get out of jury service for long trials, so juries selected to try long fraud cases are not representative of the population and may thus be unsuitable for the demands of such cases.

Juries may not fully understand the evidence in some complex or arcane cases, and may be confused into having doubts where someone who understood the facts would not have such doubts, and thus may fail to convict guilty defendants.
The Auld commission, appointed by the Government, last year proposed replacing fraud juries with judges sitting with “lay assessors” – two professional people, who might, for example, be experienced in commercial life and able to grasp key issues without getting confused or distracted by irrelevant material.

However, the Government’s current proposals are for a judge alone to hear certain complex or difficult cases. The defendant would be able to appeal against the decision to dispense with a jury. Where a trial was conducted or continued without a jury, the judge would be required to give a reasoned verdict upon conviction.

The case against…
Lord Falconer, Minister of State for Justice, Sentencing and Reform

A number of misconceptions have plagued the debate surrounding the provisions for jury trials in the Criminal Justice Bill (the bill), and I would like to set the record straight. First and foremost, our proposals are not the “thin end of the wedge”, as our opponents claim. Jury trial will continue to be the norm for the vast majority of serious cases. The bill respects and safeguards this central principle of our justice system.

We are enhancing jury service by ensuring that juries better reflect all sections of society by reducing the number of people who are exempted and increasing our trust in juries by giving them more information, such as relevant previous convictions.

We need to deal with the very real difficulties of a very small number of fraud and complex financial trials. We are not saying that juries “don’t understand” serious fraud cases, as is often claimed. Long, complex fraud and similar trials can last for months. They place an excessive and unreasonable burden on 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 simply cannot afford to have their working and personal lives severely disrupted for months on end.

Efforts by the courts to avoid these burdens on the jury can and have had undesirable consequences. The need to sever trials, pare down evidence and reduce charges in serious fraud and similar trials in order to make the length more manageable for a jury means that the full criminality of such frauds is not exposed, to the detriment of justice. This cannot be right.

Our proposals, which are based on the recommendations of Sir Robin Auld in his wide-ranging and independent review of the criminal courts, provide for trial without a jury in cases where the crucial issues at stake require the analysis of complex and voluminous evidence relating to financial, commercial or property dealing, and where the burden on a jury hearing the case would be excessive and/or threaten the interests of justice.

The bill also contains measures which address the problem of jury tampering. The courts currently have no option other than to terminate a trial when jury tampering has occurred. Police protection for the jury, which is ordered in a handful of cases each year, can be extremely intrusive. The bill provides for trial by judge alone where there is a serious risk of jury tampering, or where the jury has been discharged because of tampering in a trial that is already underway. Where the judge considers it necessary in the interests of justice to terminate the trial, the judge will also have the option of ordering that any retrial takes place without a jury.

These proposals provide a strong and effective deterrent to jury tampering. They send out a clear message that the administration of justice must be protected against those who would seek to wreck trials and subvert due process.

The bill also implements Auld’s recommendation that a defendant being tried in the Crown Court should, with the consent of the court, be able to opt for trial by judge alone. We anticipate that in the majority of cases the court will grant a defendant’s application to have their trial heard without a jury. But it must be refused and the trial heard by a jury if a co-defendant objects, and where there is a clear public interest in having a jury trial, either because it is a case that concerns the administration of justice itself, or for any other very exceptional reason.

The defendant will have a right of appeal against the court’s decision to conduct the trial without a jury; and a judge sitting alone will be required to give reasons for the verdict in the event of a conviction.

The Government’s proposals for judge-alone trials are an effective and proportionate response to particular problems and issues within our criminal justice system.