In March, at the second reading of the relevant provisions to abolish the right of a defendant to trial by jury in complex fraud trials, the Government was yet again defeated. The debate, which became somewhat ill-tempered on the part of the Government, was a good example of how the House of Lords, in representing the people in all their guises, came forward with cogent arguments as to why these provisions should not be introduced.
The proposal was that jury trial should be replaced in ‘appropriate’ cases with trial by judge alone, who would read the papers rather than have the evidence presented to him orally by counsel. The innovation had been suggested in a different guise by Lord Justice Auld’s independent review of the criminal courts, in which he stated that “two of the most compelling factors in favour of reform [were] the burdensome length and increasing speciality and complexity of these cases, with which jurors largely or wholly strangers to the subject matter are expected to cope. Both put justice at risk”. He had suggested that there be a panel consisting of a judge and two professional lay assessors who were experts in the field.
In the Lords debate, the foundation for the advocated change to a judge sitting alone was said to be threefold: first, the grave burden on a jury, which has to sit on long and complex cases causing disruption to their daily lives; secondly, there would be much less need for cases to be severed or for sample charges — justice could be done by exposing the whole criminality of the case in a single trial; and thirdly, a judge’s reasoned judgment would demonstrate that all procedures have been followed. There was no overt suggestion that a jury was incapable of understanding the complexities of the cases presented to it. However, despite reliance being placed on the investigation into the collapse of the Jubilee Line extension case, in which there was no hint that the jury had not understood or assimilated the evidence placed before it, fundamentally there was a mistrust of juries coming to the ‘right’ conclusion looking at the global picture. In other words, too many alleged fraudsters were not being prosecuted or were being acquitted.
The opposition views varied: there was concern about the democratic right of a citizen to be tried by his peers and the consequent alarm bells that ring when a government wishes to introduce measures which curtail the rights of the subject; there was a demonstration of faith in the jury to come to correct decisions on evidence and charges properly placed before them by able and succinct counsel; and there was anxiety about the thin end of the wedge, whereby more and more trials would be withdrawn from the jury; neither length nor complexity of trials and issues were limited to serious fraud, it was said, and there was no reason why it should be treated any differently from other types of case. Indeed, reliance was placed both on the new Fraud Act in simplifying the definition of fraud and on case management in terms of limiting counsel during trials.
“What the Government proposes is, in effect, a special court for white-collar crime, where the criminality of the defendant is tested not by a cross-section of the public, but by a single white-collar judge,” according to Lord Thomas. He quoted Baroness Kennedy from an earlier debate on section 43 of the Criminal Justice Act 2003, which this primary legislation sought to replace: “Juries keep the law honest and comprehensible because working with juries — as those of us who work with juries know — puts an obligation on all of us to explain the law and the rules and to apply the standards of the public to what is right and wrong. The jury stops the law becoming opaque. It stops the law becoming closed and sometimes even dishonest”.
Baroness Thomas told of a recent conversation with a judge, which she quoted: “Their [jury] verdicts, as representatives of society, have a validity which that arrived at by a judge sitting alone, even supported as it would be by a fully reasoned judgment, would lack in the eyes of society as a whole. Undermining public confidence, even in subtle ways, in our criminal justice system is extremely undesirable. People trust the jury system, even though it may be more costly and time-consuming than any alternative.”
The opposition came not just from across the benches but from people with differing backgrounds, although there was a concentration of lawyers whose concern at the proposed measures was vehemently stated. The Government was defeated by 216 to 143.
It is indeed a real concern that the Government is prepared to undermine the rights of the subject to trial by jury in very serious cases. There is, by necessity, empirically very little evidence of a failure of the jury system in complex fraud trials because of the prohibition on questioning jurors about their deliberations; but I would suggest the fact that fraud trial juries acquit some defendants does not in any way support the proposition that they are incapable of understanding the evidence placed before them. It seems that financial considerations are at the forefront of the Government’s mind; it is worth stating that justice should not be abandoned simply because it is expensive, whether in terms of cost, time or inconvenience. n
Amanda Pinto QC is a tenant at 5 Paper Buildings.